Take It Back
The House moves a radical bill to hobble local land-use rules.

Friday, September 29, 2006

THE HOUSE of Representatives is scheduled to take up today a terrible piece of legislation designed to strengthen the hands of developers in their battles with government. Congress considered and rejected a similar bill in 1997 and again in 2000. Now it's back -- only worse.

The bill deals with legal claims under the "takings" doctrine -- a requirement of the Fifth Amendment under which government has to compensate property holders when it seizes their land. Under current law, landowners must give local governments a chance to resolve such disputes and state courts a fair chance to adjudicate them before bringing the federal courts into the picture. The House bill would let developers make federal courts their first stop. This would give developers a big club to wield over local policymakers, gum up the federal courts with local land-use disputes, and diminish the rightful autonomy of state and local governments on the most local of questions.

Then -- and here's where this year's bill is even worse than its predecessors -- the substantive rules concerning takings and other constitutional challenges to land-use regulations also would be changed in developers' favor. Right now, federal courts are leery of such challenges in land-use cases, generally deferring to local authorities. Under this proposal, however, they would have to invalidate as a violation of due process any local decision that was "arbitrary, capricious, [or] an abuse of discretion." The bill, in short, would make it easier for landowners to get into court and, once there, easier to block regulations or to demand payment for compliance with them.

Conservatives often style themselves as champions of federalism, and some conservative judges -- including Justice Samuel A. Alito Jr. while he served on the U.S. Court of Appeals for the 3rd Circuit -- have taken principled stands on preserving local authority over land use. In 1994, Judge Frank H. Easterbrook of the 7th Circuit wrote in frustration: "Federal courts are not boards of zoning appeals. This message, oft-repeated, has not penetrated the consciousness of property owners. . . ." It's time for it to penetrate the consciousness of members of Congress.