Developers want their day in (federal) court.

Once again, elements of the business community are lobbying Capitol Hill with a familiar message: No issue is too local for the federal courts.

For three years, business interests have lobbied Congress to pass a bill that would result in most state-based class actions being forced into federal court. Now some business groups are seeking for themselves a similar federal landing pad with the Private Property Rights Implementation Act of 1999 (H.R. 2372).

This time, the issue is not broad civil litigation "reform." Instead, it's an attempt to change the rules regarding access to courts in cases involving local land use decisions.

The official title of the bill states a high-minded purpose:

   To simplify and expedite access to the federal courts for injured parties
   whose rights and privileges, secured by the United States Constitution,
   have been deprived by final actions of federal agencies or other government
   officials or entities acting under color of state law; to prevent federal
   courts from abstaining from exercising federal jurisdiction in actions
   where no state law claim is alleged; to permit certification of unsettled
   state law questions that are essential to resolving federal claims arising
   under the Constitution; and to clarify when government action is
   sufficiently final to ripen certain federal claims arising under the
   Constitution.

The true purpose of this bill, more simply stated, is to make the appeals process quicker and more convenient for developers. If this bill passes, property owners would not only be able to fight the decisions of local planning and zoning boards or city supervisors in federal courts, but they could gain access to those courts almost immediately.

Currently, property owners are required to tap all municipal remedies available before proceeding to local and state courts and then to federal courts. The circumvention of local remedy that is proposed in H.R. 2372 has pitted land owners and developers against environmentalists and local governments.

Diane Shea, associate legislative director of the National Association of Counties (NACo), opposed the bill in testimony before the House Judiciary Committee's Subcommittee on the Constitution. She appeared on behalf of NACo and the Nation League of Cities (NLC), which together represent 90 percent of the nation's local governments. Shea said:

   [L]ocal governments adopt ordinances and approve ... permits, not for the
   purpose of infringing on property rights, but rather ... to protect the
   property rights of all....  NACo and NLC are disappointed and surprised
   that the Congress would seriously consider legislation that is so obviously
   offensive to our system of federalism.... Planning and zoning questions are
   a central responsibility for local government ... and have never been
   regarded as an appropriate subject for federal interference. ... [The bill]
   would give ... special interests a "club" with which to intimidate
   communities that cannot afford to put up a fight in federal court.

As an example of the volume of zoning applications processed by some local governments, consider Fairfax County, Virginia (population 966,000). According to figures from the county's Zoning Evaluation Division, 649 zoning applications were reviewed in fiscal year 1999, and 574 were approved. The applications include everything from rezoning to special use permits. One category, "special exceptions," is for projects of significant commercial use, such as a car wash or food store. Of the 99 special-exception applications for the fiscal year, 80 were approved, 11 were withdrawn, 7 were dismissed, and only 1 was denied. The recourse for a denial is to file suit in the county circuit court.

Testifying on behalf of those who have been denied zoning permits--and on behalf of the National Association of Home Builders--Richard Goodwin, a real estate developer from New Jersey, said:

   I think we all realize ... the unequal bargaining position government
   entities hold over private citizens. We have limited resources. They,
   generally, have fewer limits. In some circumstances they can defer
   decisions and simply wear us out by forcing us through a maze of
   procedures. The cumulative effect of this sometimes causes a taking of
   private property without compensation.

Other proponents of the bill, such as Daniel Mandelker, a zoning law and land use expert with Washington University School of Law in St. Louis, said:

   [T]he benefit of H.R. 2372 to property owners and to government agencies is
   simply to preserve a meaningful option of court access that can test the
   scope of the Takings Clause.... Based on the reality of the regulatory
   process, in my opinion the vast majority of landowners will opt for further
   negotiation and pursue less intensive land uses compared to their initial
   development applications. Developers do not hastily select litigation as
   their best opportunity to achieve the maximum profit expectations in their
   land.

Developers might be more inclined to litigate if given the opportunity to do so swiftly in a forum--the federal court system--they view as generally more friendly to their interests.

Secretary of the Interior Bruce Babbitt, in a letter to the House Judiciary Committee, objected to the swiftness with which landowners would be able to proceed to federal court: "H.R. 2372 would allow individual property owners to go to federal court before the local decision-making process is complete," Babbitt wrote. He "would recommend that the president veto H.R. 2372 if passed in its present form."

The bill's sponsor, Rep. Charles Canady (R-Fla.), says the issue at hand is constitutional and belongs in federal court.

On March 16, the House passed Canady's bill 226 to 182. If history repeats itself, the bill may face greater difficulty in the Senate. During the last Congress, a virtually identical bill passed the House but died in the Senate.

Who really benefits?

The true purpose of this bill is to make the appeals process quicker and more convenient for developers.

Kristin Loiacono is media relations coordinator for ATLA.