49–006 

109TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 109–658 

PRIVATE PROPERTY RIGHTS IMPLEMENTATION ACT OF 

2006 

SEPTEMBER 14, 2006.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4772] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 4772) to simplify and expedite access to the Federal courts 

for injured parties whose rights and privileges under 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, and for other purposes, having considered the same, 

report favorably thereon with an amendment and recommend that 

the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Private Property Rights Implementation Act of 

2006’’. 

SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES CONCERNING REAL PROPERTY. 

Section 1343 of title 28, United States Code, is amended by adding at the end the 

following: 

‘‘(c) Whenever a district court exercises jurisdiction under subsection (a) in an action in which the operative facts concern the uses of real property, it shall not abstain from exercising or relinquish its jurisdiction to a State court if the party seeking redress does not allege a violation of a State law, right, or privilege, and no parallel proceeding is pending in State court, at the time the action is filed in the district court, that arises out of the same operative facts as the district court proceeding. 


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‘‘(d) In an action in which the operative facts concern the uses of real property, 

the district court shall exercise jurisdiction under subsection (a) even if the party 

seeking redress does not pursue judicial remedies provided by a State or territory 

of the United States. ‘‘(e) If the district court has jurisdiction over an action under subsection (a) in 

which the operative facts concern the uses of real property and which cannot be decided without resolution of an unsettled question of State law, the district court may 

certify the question of State law to the highest appellate court of that State. After 

the State appellate court resolves the question so certified, the district court shall 

proceed with resolving the merits. The district court shall not certify a question of 

State law under this subsection unless the question of State law— ‘‘(1) is necessary to resolve the merits of the Federal claim of the injured 

party; and ‘‘(2) is patently unclear. ‘‘(f)(1) Any claim or action brought under section 1979 of the Revised Statutes of 

the United States (42 U.S.C. 1983) to redress the deprivation of a property right 

or privilege secured by the Constitution shall be ripe for adjudication by the district 

courts upon a final decision rendered by any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or territory of the United 

States, which causes actual and concrete injury to the party seeking redress. ‘‘(2) For purposes of this subsection, a final decision exists if— ‘‘(A) any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or territory of the United States, makes a definitive 

decision regarding the extent of permissible uses on the property that has been 

allegedly infringed or taken, without regard to any uses that may be permitted 

elsewhere; and ‘‘(B) one meaningful application to use the property has been submitted but 

denied, and the party seeking redress has applied for but is denied one waiver 

and one appeal, if the applicable statute, ordinance, regulation, custom, or 

usage provides a mechanism for waiver by or appeal to an administrative agency. 

The party seeking redress shall not be required to apply for a waiver or appeal described in subparagraph (B) if such waiver or appeal is unavailable or can not provide the relief requested, or if pursuit of such a mechanism would otherwise be futile.’’. 

SEC. 3. UNITED STATES AS DEFENDANT. 

Section 1346 of title 28, United States Code, is amended by adding at the end the 

following: ‘‘(h)(1) Any claim brought under subsection (a) that is founded upon a property 

right or privilege secured by the Constitution, but was allegedly infringed or taken 

by the United States, shall be ripe for adjudication upon a final decision rendered 

by the United States, which causes actual and concrete injury to the party seeking 

redress. 

‘‘(2) For purposes of this subsection, a final decision exists if—

‘‘(A) the United States makes a definitive decision regarding the extent of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may be permitted elsewhere; and 

‘‘(B) one meaningful application to use the property has been submitted but 

denied, and the party seeking redress has applied for but is denied one waiver 

and one appeal, if the applicable law of the United States provides a mechanism 

for waiver by or appeal to an administrative agency. 

The party seeking redress shall not be required to apply for a waiver or appeal described in subparagraph (B) if such waiver or appeal is unavailable or can not provide the relief requested, or if pursuit of such a mechanism would otherwise be futile.’’. 

SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS. 

Section 1491(a) of title 28, United States Code, is amended by adding at the end 

the following: 

‘‘(3) Any claim brought under this subsection founded upon a property right or 

privilege secured by the Constitution, but allegedly infringed or taken by the United 

States, shall be ripe for adjudication upon a final decision rendered by the United 

States, that causes actual and concrete injury to the party seeking redress. For purposes of this paragraph, a final decision exists if—

‘‘(A) the United States makes a definitive decision regarding the extent 

of permissible uses on the property that has been allegedly infringed or 

taken, without regard to any uses that may be permitted elsewhere; and 

‘‘(B) one meaningful application to use the property has been submitted 

but denied, and the party seeking redress has applied for but is denied one 


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waiver and one appeal, if the applicable statute, ordinance, regulation, custom, or usage provides a mechanism for waiver by or appeal to an administrative agency. 

The party seeking redress shall not be required to apply for a waiver or appeal 

described in subparagraph (B) if such waiver or appeal is unavailable or can 

not provide the relief requested, or if pursuit of such a mechanism would otherwise be futile.’’. 

SEC. 5. CLARIFICATION FOR CERTAIN CONSTITUTIONAL PROPERTY RIGHTS CLAIMS. 

Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is 

amended by adding at the end the following: ‘‘If the party injured seeks to redress 

the deprivation of a property right or privilege under this section that is secured 

by the Constitution by asserting a claim that concerns— ‘‘(1) an approval to develop real property that is subject to conditions or exactions, then the person acting under color of State law is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not 

limited to the payment of a monetary fee or a dedication of real property from 

the injured party, is unconstitutional; ‘‘(2) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, or the District of Columbia, then 

such a claim shall be decided with reference to each subdivided lot, regardless 

of ownership, if such a lot is taxed, or is otherwise treated and recognized, as 

an individual property unit by the State, territory, or the District of Columbia; 

or ‘‘(3) alleged deprivation of substantive due process, then the action of the person acting under color of State law shall be judged as to whether it is arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law. 

For purposes of the preceding sentence, ‘State law’ includes any law of the District 

of Columbia or of any territory of the United States.’’. 

SEC. 6. CLARIFICATION FOR CERTAIN CONSTITUTIONAL PROPERTY RIGHTS CLAIMS AGAINST 

THE UNITED STATES. 

(a) DISTRICT COURT JURISDICTION.—Section 1346 of title 28, United States Code, 

is amended by adding at the end the following: 

‘‘(i) If a claim brought under subsection (a) is founded upon a property right or 

privilege secured by the Constitution that concerns—

‘‘(1) an approval from an executive agency to permit or authorize uses of real 

property that is subject to conditions or exactions, then the United States is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication 

of real property from the injured party, is unconstitutional; 

‘‘(2) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, or the District of Columbia, then 

such a claim against an executive agency shall be decided with reference to 

each subdivided lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by the State or territory, or the District of Columbia, as the case may be; or 

‘‘(3) an alleged deprivation of substantive due process, then the United States 

shall be judged as to whether its action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 

In this subsection, the term ‘executive agency’ has the meaning given that term in 

section 105 of title 5.’’. 

(b) COURT OF FEDERAL CLAIMS JURISDICTION.—Section 1491 of title 28, United 

States Code, is amended by adding at the end the following: 

‘‘(4) If a claim brought under subsection (a) is founded upon a property right or 

privilege secured by the Constitution that concerns—

‘‘(A) an approval from an executive agency to permit or authorize uses of real 

property that is subject to conditions or exactions, then the United States is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication 

of real property from the injured party, is unconstitutional; 

‘‘(B) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, or the District of Columbia, then 

such a claim against an executive agency shall be decided with reference to 

each subdivided lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by the State, or territory, or the District of Columbia, as the case may be; or 

‘‘(C) an alleged deprivation of substantive due process, then the United States 

shall be judged as to whether its action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 


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In this paragraph, the term ‘executive agency’ has the meaning given that term in 

section 105 of title 5.’’. 

SEC. 7. DUTY OF NOTICE TO OWNERS. 

(a) IN GENERAL.—Whenever a Federal agency takes an agency action limiting the 

use of private property that may be affected by the amendments by this Act, the 

agency shall, not later than 30 days after the agency takes that action, give notice 

to the owners of that property explaining their rights under such amendments and 

the procedures for obtaining any compensation that may be due them under such 

amendments. 

(b) DEFINITIONS.—For purposes of subsection (a)— (1) the term ‘‘Federal agency’’ means ‘‘agency’’, as that term is defined in section 552(f) of title 5, United States Code; and 

(2) the term ‘‘agency action’’ has the meaning given that term in section 551 

of title 5, United States Code. 

SEC. 8. SEVERABILITY AND EFFECTIVE DATE. 

(a) SEVERABILITY.—If any provision of this Act or the amendments made by this 

Act or the application thereof to any person or circumstance is held invalid, the remainder of this Act, the amendments made by this Act, or the application thereof 

to other persons not similarly situated or to other circumstances shall not be affected by such invalidation. 

(b) EFFECTIVE DATE.—The amendments made by this Act shall apply to actions 

commenced on or after the date of the enactment of this Act. 

PURPOSE AND SUMMARY

The purpose of H.R. 4772, the ‘‘Private Property Rights Implementation Act of 2006’’, is to ensure that private property owner’s 

Fifth Amendment takings claims can be heard by a Federal court. 

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 4772 will allow greater and fairer access to Federal courts 

by those who assert Federal property rights claims under the Fifth 

Amendment’s Takings Clause. H.R. 4772, the ‘‘Private Property 

Rights Implementation Act’’, is substantially the same as H.R. 

2372, which passed the House during the 106th Congress on March 

16, 2000, by a vote of 226–182. 

Under current law, property owners are now blocked from raising a Federal Fifth Amendment takings claim in Federal court. The 

Supreme Court’s decision in Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), requires property owners to pursue, and exhaust, all available remedies for just compensation in State court 

before the property owner can file suit in Federal court under the 

Fifth Amendment. In San Remo Hotel v. City and County of San 

Francisco, 125 S.Ct. 2491 (2005), the Supreme Court recently confirmed and did not modify prior lower court case law that held that 

once a property owner tries their case in State court, and loses, the 

doctrines of res judicata and claim preclusion allow Federal courts 

to dismiss the claims on the grounds they were already decided by 

the State court. The combination of these two rules means that 

those with Federal property rights claims are effectively shut out 

of Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other kind of Federal right, 

such as every Americans’ First Amendment right to freedom of 

speech and freedom of religion, which may be asserted in Federal 

court in the first instance. 

The late Chief Justice Rehnquist observed in his concurring opinion in San Remo that the ‘‘Williamson County [decision] all but 

guarantees that claimants will be unable to utilize the federal 

courts to enforce the Fifth Amendment’s just compensation guarVerDate Aug 31 2005 04:39 Sep 16, 2006 Jkt 049006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR658.XXX HR658

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1Santini v. Connecticut Hazardous Waste Management Service, 342 F.3d 118, 130 (2d. Cir. 

2003). 2San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, 

J., dissenting). 

antee.’’ Chief Justice Rehnquist specifically noted in San Remo that ‘‘[i]t is not clear to me that Williamson County was correct in demanding that... the claimant must seek compensation in State 

court before bringing a federal takings claim in federal court.’’ Indeed, the Second Circuit Court of Appeals previously noted that 

‘‘[i]t would be both ironic and unfair if the very procedure that the 

Supreme Court required [property owners] to follow before bringing 

a Fifth Amendment takings claim—a state-court inverse condemnation [takings] action—also precluded [them] from ever bringing a Fifth Amendment takings claim.’’ 1

Rep. Chabot’s Private Property Rights Implementation Act— which is based on the constitutionally-explicit authority of Congress to define the jurisdiction of the lower Federal courts, in Article III, section 1, and the appellate jurisdiction of the Supreme 

Court, in Article III, section 2, clause 2—would allow property owners raising solely Federal takings claims to have their cases decided in Federal court without first pursuing a (sometimes fruitless) litigation detour in State court. H.R. 4772, far from ‘‘federalizing’’ local land use issues, preserves federalism values. The current legal regime that violates the right of Americans to bring Federal suits to enforce Federal rights itself is a violation of federalism 

principles. H.R. 4772 simply makes it easier for individuals to hold 

local planners accountable for Federal rights violations. As Supreme Courts Justices William Brennan and Thurgood Marshall 

have said, ‘‘After all, a policeman must know the Constitution, then 

why not a [local] planner?’’ 2

H.R. 4772 levels the playing field for small and middle class 

property owners and retirees. The expense of bringing a Constitutional takings claim through the labyrinthine of procedures in place 

today is disproportionately borne by private citizens who often lack 

the resources to litigate these complex claims, and cannot draw on 

the public treasury to defend their rights. H.R. 4772 helps small 

developers and middle class Americans, whose finances are particularly strained by the costs of defending their Fifth Amendment 

property rights. (The current procedural rules favor the wealthiest 

developers, who can afford to maintain a Fifth Amendment takings 

claims all the way to Federal court, even though these claims, once 

heard in Federal court, are almost always rejected on procedural 

grounds.) 

H.R. 4772 does not grant greater access to Federal courts to 

those asserting their Federal Fifth Amendment rights than to those 

who assert any other Federal constitutional rights. Indeed, the 

Constitution forbids the government from depriving its citizens of 

life, liberty, or property without due process of law, just as takings 

may not occur without just compensation. Yet few would seriously 

argue that plaintiffs claiming any deprivation of constitutionallyprotected rights without due process of law under 42 U.S.C. § 1983 

should not be able to sue in Federal courts without first having engaged in costly and protracted litigation at the State level. 

Indeed, more takings cases should be allowed to be heard and decided in Federal court to help clarify takings law itself. As the SuVerDate Aug 31 2005 04:39 Sep 16, 2006 Jkt 049006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR658.XXX HR658

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3 125 S.Ct. 2074, 2082 (2005). 

4For example, consider the following dynamic in Ohio. The U.S. Supreme Court has established a two part disjunctive test. The application of a zoning law will be deemed an unconstitutional taking if the ordinance (1) does not substantially advance legitimate State interests or 

(2) denies an owner economically viable use of his land. Agins v. Tiburon, 447 U.S. 255, 260 

(1980). The government has the burden of proving a substantial interest is served by the zoning 

regulation. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987). By establishing a disjunctive 

test, a property owner need only satisfy one of two burdens to show a zoning regulation is unconstitutional. In 1990, Ohio adopted its own test for applying the Fifth Amendment takings 

clause to zoning challenges. Rather than the disjunctive Federal test, Ohio adopted a conjunctive 

test. In order to invalidate a zoning ordinance on constitutional grounds, a property owner had 

to show, beyond ‘‘fair debate,’’ that the zoning classification denied them ‘‘the economically viable use of their land without substantially advancing a legitimate interest in the health, safety, 

or welfare of the community.’’ Ketchel v. Bainbridge Twp., 557 N.E.2d 779, 783 (Ohio 1990). ‘‘Fair debate’’ has been analogized to the criminal probative standard of ‘‘beyond a reasonable 

doubt.’’ Central Motors Corp. v. Pepper Pike, 653 N.E.2d 639, 642 (Ohio 1995). The Federal 

standard places the burden of proof on the government. In applying this two-part test, the court 

would first determine whether the zoning ordinance allowed the landowner an economically feasible utilization of his land. Next, the court would determine whether the ordinance permissibly 

advanced a legitimate interest of the city. Columbia Oldsmobile, Inc. v. Montgomery, 564 N.E.2d 

455, 457–458 (Ohio 1990). In 1998, Ohio realigned itself with the Agins disjunctive test. After 

reconsidering Agins and its own prior cases on zoning challenges, the Ohio Supreme Court held 

that a zoning ordinance may be found unconstitutional if it is ‘‘arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare regardless 

of whether it has deprived the landowner of all economically viable uses of the land.’’ Goldberg 

Cos. Inc. v. Richmond Heights, 690 N.E.2d 510, 514 (Ohio 1998). Despite adopting the disjunctive Agins test, the property owner challenging the zoning ordinance maintained the burden of 

proof, and the standard of proof remained beyond fair debate. Id. at 515. This same burden of 

proof remains Ohio law today. Consequently, current Ohio law is less protective of constitutionally guaranteed property rights than current Federal law. By placing a high burden on the 

aggrieved property owner, i.e. ‘‘beyond a reasonable doubt,’’ to show a zoning ordinance either 

serves no legitimate government interest or denies himself or herself of the economically viable 

use of his property, the Ohio Supreme Court has made it easier to pass unconstitutional zoning 

ordinances. Ohio is essentially depriving property owners of constitutionally protected rights. 

This is a fundamental violation of constitutional law. H.R. 4772 would solve this problem by 

allowing an aggrieved property owner in Ohio to immediately sue under the Fifth and Fourteenth Amendments in Federal court. 5See Williamson County v. Hamilton Bank, 473 U.S. 172, 186 (1985) (‘‘holding that ‘‘a claim 

that the application of government regulations effects a taking of a property interest is not ripe 

until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.’’). 6See H.R. Rep. No. 106–518, at 10 (2000). 

preme Court stated in Lingle v. Chevron U.S.A., Inc., ‘‘regulatory 

takings jurisprudence cannot be characterized as unified.’’ 3 More 

cases must be allowed to be brought in Federal court in order to 

ensure that Federal precedents can be applied in a national and 

uniform manner. It is essential that Congress help ensure this outcome because State supreme courts are currently applying standards inconsistent with those handed down by the Supreme Court, 

secure in the knowledge that those suffering under the different 

standards applied by those State supreme courts will have no 

chance of being appealed to the Federal courts.4 This process undermines the uniform, national application of Federal rights that 

the Constitution affords to all Americans, irrespective of their State 

of residence. 

H.R. 4772 would also remove another artificial barrier blocking 

property owners’ access to Federal court: Williamson County also 

requires that, before a case is ‘‘ripe’’ (that is, ready) for review by 

a Federal court, property owners must first obtain a ‘‘final decision’’ from the State government on what is an acceptable use of their 

land.5 This has created an incentive for regulatory agencies to 

avoid making a final decision, thereby perpetually denying a property owner access to court. Studies of takings cases in the 1990s 

indicate that it took property owners nearly a decade of negotiation 

and litigation (which most property owners cannot afford) before 

takings claims were ‘‘ripe’’ enough to be heard on the merits in any 

court.6 H.R. 4772 would clarify when a final decision has been 


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7 Each of the following provisions simply clarifies what types of property rights cases can be 

brought in Federal court. 42 U.S.C. § 1983, which H.R. 4772 amends, already states that cases 

can be heard in Federal court for—quote—‘‘deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws.’’ All the following provisions do is further define what, 

in the property rights context, is a ‘‘deprivation of any rights, privileges, or immunities secured 

by the . . . laws.’’ 8See Michael Martinez, ‘‘Hiring Site For Day Labor Stirs Protest,’’ The Chicago Tribune (February 6, 2006) at 3 (‘‘Opponents contend the center legitimizes illegal immigrants . . . Home 

Depot built it, then deeded the site to the city; the retailer pays a $94,000-a-year fee, which 

the city uses to pay Catholic Charities to run the center . . . Never before has Home Depot 

been required to build a day-laborer center in tandem with a store and then pay an annual fee 

that ultimately finances the center’s operation . . . Burbank’s demand for the approximately 

2,500-square-foot worker site coincides with Home Depot’s ban on day laborers and other outsiders soliciting store customers’’). 9See ‘‘A Caution Flag on Developer Fees,’’ The Press Democrat (‘‘The case concerned Richard 

K. Ehrlich, a Culver City man who wanted to tear down a money-losing private tennis club and 

build 30 homes. The city, citing a shortage of public tennis courts and swimming pools, said 

the man would have to pay a $280,000 recreation fee and $33,000 to fund public arts projects 

for his plan to be approved. That would have added more than $10,000 to the cost of each house, 

even before all other impact fees are added in.’’). 10See Volusia County v. Aberdeen at Ormond Beach L.P., 760 So. 2d 126 (Fla. 2000) (requirement of public school impact fees on a mobile home park struck down because the park did not 

increase the need for new schools since no students lived in the park). 

issued and when the case is ripe for Federal court review. Under 

the bill, if a land use application is reviewed by the relevant agency 

and rejected, a waiver is requested and denied, and an administrative appeal also rejects the application, then a property owner can 

bring his or her Federal constitutional claim in a Federal court. 

The bill would not change the way agencies resolve disputes; rather, H.R. 4772 simply makes clear to the court when a ‘‘final agency 

action’’ has taken place. 

• H.R. 4772 also clarifies the rights of property owners who assert certain types of constitutional claims: 7

• H.R. 4772 clarifies that conditions or exactions that are imposed upon a property owner before they can receive a permit must 

be proportional to the impact the development might have on the 

surrounding community. One recent example of an abusive exaction occurred in Burbank, California, where the city required that 

a Home Depot build a day-laborer center—for use by people, many 

of them illegal aliens, who were loitering in the Home Depot parking lot against Home Depot policy and looking for spot contracting 

jobs from Home Depot customers. The government conditioned 

Home Depot’s construction of its store on its paying an annual fee 

that finances the center’s operation.8 Property owners and business 

owners may constitutionally be required to cover the government’s 

costs that are incurred due to development or expansion of a business. For example, exactions may be imposed on developers to pay 

for expanding schools to accommodate children who will be living 

in the new development; and a business owner who is seeking permission to expand the business may be required to pay for the 

costs of installing a stop light if the expansion will result in increased traffic, and the increase in traffic merits a stop light. However, sometimes the conditions imposed on a development bear no 

relation to public costs associated with the development plan. Occasionally, a government will try to impose a condition for development approval that has nothing to do with the project at hand or 

has no relationship to the project’s impact.9 A developer should not 

be required to build a new school for children who already live in 

the town 10 and should not be required to pay for a road that will 


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11See Town of Flower Mound v. Stafford Estates Limited Partnership, 135 S.W.3d. 620 (Tex. 

2004) (holding a taking an exaction that required construction and improvement of streets adjacent to development when there was insufficient evidence that new traffic related to the subdivision would use such roads). 12See Jennifer Kabbany, ‘‘Vista, Calif., Council Agrees to Study Art Development Fee,’’ North 

County Times (September 29, 2004) (‘‘The City Council on Tuesday agreed with the concept of 

creating a development fee to pay for public art projects, undeterred by complaints from those 

who said it would hurt businesses and home buyers * * * The commission proposed that a fee 

of 5-cents per square foot be tacked on to residential, commercial and industrial building permits for projects larger than 500 square feet, starting in July 2006. The fee would increase to 

10 cents for the 2007–08 fiscal year that begins July 1. In 2008–09, the fee would jump to 15 

cents per square foot.’’). 13 In Lingle v. Chevron U.S.A., Inc., 125 S.Ct. 2074 (2005), the Supreme Court clarified that 

one of the theories available to a takings plaintiff is that an exaction, or a regulatory condition 

imposed by a government body as a precondition to a development approval, may be unconstitutional. Lingle affirmed the prior ruling from Nollan, which held that a regulatory condition imposed on development must have an ‘‘essential nexus’’ to support the government’s stated objective in imposing the condition in the first place. Lingle also affirmed the standard from Dolan, which held that the government has the burden to show that any condition on development bear 

‘‘rough proportionality’’—that is, the development condition must be related both in nature and 

extent to the impact of the proposed development. 14See, e.g., Town of Flower Mound v. Stafford Estates Ltd. P’Ship, 135 S.W.2d 620 (Tex. 2004); 

A.S. Klein, ‘‘Validity and Construction of Statute or Ordinance Requiring Land Developer to 

Dedicate Portion of Land for Recreational Purposes, or Make Payment in Lieu Thereof,’’ 43 

A.L.R. 3d 862. 15See, e.g., Parking Ass’n of Georgia v. City of Atlanta, 515 U.S. 1116 (1995) (Thomas, J., 

joined by O’Connor, J., dissenting from denial of petition for writ of certiorari). 16When a court tries to figure out what fraction of piece of property has been denied all economic value by a regulation, it must look to the fraction x/y, where ‘‘x’’ is the area of the propnot be used by residents of the subdivision under construction.11 In 

addition, a business owner should not be required to build a library 

or fund art exhibits in exchange for receiving approval to expand 

her store.12

Fundamental fairness dictates that property owners should have 

the right to defend themselves in Federal court against unreasonable exactions or impact fees that amount to unconstitutional extortion. The U.S. Supreme Court in Nollan v. California Coastal 

Commission, 483 U.S. 827 (1987), and Dolan v. City of Tigard, 512 

U.S. 374 (1994), has affirmed these principles, but H.R. 4772 clarifies that Nollan and Dolan apply to both regulatory and legislatively-imposed exactions, and extortionate conditions in any form— whether they encompass the compelled give-away of land, the payment of disproportionate fees, or some other demanded condition 

that has no ‘‘essential nexus’’ to the project or its impact on public 

resources.13 The lower Federal and State courts have reached varying decisions on what types of exactions are subject to the ‘‘essential nexus’’ and ‘‘rough proportionality’’ requirements. One source of 

this judicial divergence is uncertainty as to whether the standards 

apply only to exactions calling for the actual dedication of land 

with public access (such as the hiker and biker path at issue in 

Dolan), or whether Nollan and Dolan also apply to monetary exactions like the payment of an impact fee.14 Another aspect of the 

controversy concerns whether Nollan and Dolan apply to legislative 

actions, or only to adjudicatory actions that concern conditioned approvals directed toward a specific project and property owner.15 In 

order to remedy the confusion created by the lower courts, H.R. 

4772 amends 42 U.S.C. § 1983 to state that Fifth Amendment 

takings claims challenging an unconstitutional exaction apply 

whether the exaction is legislative or adjudicative in nature, or 

whether the exaction seeks a land dedication or payment of a monetary fee as a condition to development approval. • H.R. 4772 clarifies the so-called ‘‘denominator question’’ 16 in 

cases concerning subdivided lots by requiring that Federal courts 


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erty denied all economic value and ‘‘y’’ is the area of the larger property of which ‘‘x’’ is a part. 

The question courts have come to different answers on is what exactly is ‘‘y’’? Is ‘‘y’’ a subdivided 

lot within a larger set of lots, or is ‘‘y’’ itself a subdivided lot? If the answer is the former, fewer 

takings will be found unconstitutional. If the answer is the latter, more takings will be found 

unconstitutional because the x/y ratio will be higher. 17 505 U.S. 1003 (1992). 18 505 U.S. 1003, 1016, n.7. 19 Id. 20 Compare Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1180 (Fed. Cir. 1994) (acknowledging that the scope of the denominator was the ‘‘key question,’’ and ruling that the relevant focus was only the regulated 12.5 acres that were rendered useless from the larger parcel) 

with District Intown Props. Ltd. P’Ship v. Dist. of Columbia, 198 F.3d 874, 880 (D.C. Cir. 1999) 

(recognizing that ‘‘we must first define what constitutes the relevant parcel’’ and deciding that 

all nine lots in the subdivision provided the appropriate denominator, not just the lots that were 

subject to regulation). 

look at the impact of a takings claim on each individual lot that 

is recognized as a separate independent property unit under State 

law (instead of looking to the impact of the taking in the context 

of all such lots grouped together). That is, H.R. 4772 would clarify 

that if property units are individually taxed under State law, then 

the adverse economic impact a regulation has on a piece of property should be measured by determining how much value the regulation has taken away from the individual lot affected, not the 

broader collection of lots grouped together. The Supreme Court, in 

Lucas v. South Carolina Coastal Council,17 established the rule 

that a taking occurs, as a categorical matter, when a regulation deprives a land owner of all economically viable uses of the property. 

The Court recognized that ‘‘the rhetorical force of our deprivation 

of all economically feasible use rule is greater than its precision, 

since the rule does not make clear the property interest against 

which the loss of value is to be measured.’’ 18 The Court also held: 

‘‘[T]his uncertainty regarding the composition of the denominator 

in our ‘deprivation’ fraction has produced inconsistent pronouncements by the Court * * * ’’ 19

As a result, the lower Federal and State courts have rendered inconsistent decisions on the proper scope of the takings denominator. Some courts have held that a taking should be judged by 

considering what portion of land has been regulated in the context 

of the entire parcel. Other courts have held that the bottom part 

of the takings fraction should focus on the specific land that has 

been taken.20 The denominator question is particularly troublesome in the context of subdivided lots. When a landowner subdivides property pursuant to a local ordinance, State law generally 

treats each subdivided lot as a unique and distinct property interest. Indeed, a land owner typically bears a much higher tax burden 

on subdivided property (compared to raw land), and assessments 

are levied on a lot-by-lot basis. Accordingly, if a landowner must 

treat individual lots as separate units for taxation purposes, then 

the standards determining just compensation should be the same 

when government takes subdivided lots under the Fifth Amendment’s takings clause. To level the playing field, where subdivided 

land is at issue, the denominator in the takings fraction should be 

each lot—not the entire land holding. To accomplish this, H.R. 

4772 amends 42 U.S.C. § 1983 to provide that the relevant parcel, 

for purposes of Fifth Amendment takings claims in the context of 

land subdivisions, is each subdivided lot if such lots are separately 

taxed under State law as individual units. 


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21 125 S.Ct. 2074 (2005). 22 125 S.Ct. 2074, 2083 (2005). 23 Id. at 2087 (following earlier due process analysis in his concurrence in Eastern Enterps. v. Apfel, 524 U.S. 498, 539 (1998)). 24Lingle, 125 S.Ct. at 2083. 25See, e.g., Warren v. City of Athens, 411 F.3d 697, 707 (6th Cir. 1997) (‘‘a substantive due 

process violation occurs when arbitrary and capricious government action deprives an individual 

of a constitutionally protected property interest’’); Southern Blasting Servs, Inc. v. Wilkes County, 288 F.3d 584 (4th Cir. 2002) (no due process violation found where plaintiff failed to ‘‘demonstrate that the County’s actions were arbitrary or irrational’’); Harlen Assocs. v. Inc. Vill. of 

Mineola, 273 F.3d 494, 503 (2d Cir. 2001) (substantive due process claim survives summary 

judgment where a plaintiff shows that he has a protectable property interest and that the government ‘‘infringed that property interest in an arbitrary or irrational manner’’); Crider v. Bd. 

of County Comm’rs of County of Boulder, 246 F.3d 1285, 1289 (10th Cir. 2001) (plaintiff bringing 

a land use due process claim must show that ‘‘the challenged government action was ‘arbitrary 

and capricious’ ’’). 26See, e.g., Simi Inv. Co. v. Harris County, 236 F.3d 240, 249 (5th Cir. 2000) (substantive due 

process claims governed by a ‘‘deferential ‘rational basis’ test’’); Durigan v. Sanitary Dist. No. 

4, 5 Fed. Appx. 492, 494–95 (7th Cir. 2001) (‘‘[l]and use regulations satisfy substantive due process if they do not violate a specific constitutional guarantee and are rationally related to a legitimate governmental interest’’). 27See, e.g., Iowa Coal Mining Co. v. Monroe County, 257 F.3d 846, 853 (8th Cir. 2001) (government action must be ‘‘truly irrational’’ in order to violate due process rights). 28See, e.g., United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 400– 402 (3d Cir. 2003) (overruling prior line of Third Circuit cases, employing ‘‘unrelated to the merits’’ and ‘‘improper notice’’ standard, in favor of ‘‘shocks the conscience’’ test for due process 

claims); Barrington Cove Ltd. P’Ship v. Rhode Island Housing and Mortg. Fin. Corp., 246 F.3d 

1, 5 (1st Cir. 2001) (for substantive due process claim to survive a motion to dismiss, the complaint must ‘‘either (i) allege that [the agency] deprived [the plaintiff] of a cognizable property 

interest * * * or, failing that, (ii) allege that the [agency’s] conduct was so egregious as to ‘shock 

the conscience’ ’’). 29.See, e.g., George Washington Univ. v. Dist. of Columbia, 318 F.3d 203, 209 (D.C. Cir. 2003) 

(‘‘the doctrine of substantive due process constrains only egregious government misconduct’’ that 

is designed to ‘‘prevent[] only grave unfairness’’). 

• H.R. 4772 also clarifies that due process violations involving 

property rights should be found when the government has been 

found to have acted in an ‘‘arbitrary and capricious’’ manner. In 

Lingle v. Chevron U.S.A., Inc.21 the Supreme Court overruled an 

earlier holding that a taking arises when a regulation ‘‘does not 

substantially advance legitimate State interests.’’ Lingle held that 

the ‘‘[substantially advances] formula prescribes an inquiry in the 

nature of a due process, not a takings, test, and * * * it had no 

proper place in our takings jurisprudence.’’ 22 Justice Kennedy, in 

a concurring opinion, stated that the majority’s decision ‘‘does not 

foreclose the possibility that a regulation might be so arbitrary or 

irrational as to violate due process.’’ 23

Lingle also characterized a seminal case, Village of Euclid v. 

Ambler (1926), as a ‘‘historic decision holding that a municipal zoning ordinance would survive a substantive due process challenge so 

long as it was not ‘clearly arbitrary and unreasonable, having no 

substantial relation to the public health, safety, morals or general 

welfare.’ ’’ 24 But because the Lingle case was so recently decided, 

the Supreme Court’s modern land use due process jurisprudence is 

not developed. As a result, the lower courts are in utter disarray 

over the proper test for a land use due process claim. The Second, 

Fourth, Sixth and Tenth Circuits adhere to a traditional test that 

an arbitrary, capricious, or irrational land use regulation may violate due process.25 The Fifth and Seventh Circuits have adopted a ‘‘reasonable basis’’ or ‘‘rational relationship’’ standard for analyzing 

due process claims,26 while the Eighth Circuit has announced a ‘‘truly irrational test.’’ 27 The Third Circuit (and the First Circuit, 

at least in part) rely on a test that government conduct must 

‘‘shock the conscience’’ before due process is violated.28 The D.C. 

Circuit throws an ‘‘egregious conduct’’ standard into this analysis.29


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30See, e.g., Armendariz v. Penman, 75 F.3d 1311, 1325–26 (9th Cir. 1996). 31See, e.g., Lewis v. Brown, 409 F.3d 1271, 1273 (11th Cir. 2005) (regulatory ‘‘deprivations 

of State-created rights, which would include land use rights, cannot support a substantive due 

process claim, not even if the plaintiff alleges that the government acted arbitrarily and irrationally’’). 32 5 U.S.C. § 706(2)(A). 

Prior to Lingle, the Ninth Circuit had ruled that due process claims 

are subsumed within a takings claim,30 while the Eleventh Circuit 

had taken the most hostile position that deprivation of land use 

rights simply cannot support a substantive due process claim.31

Both of those circuits will likely need to revisit their rulings in 

light of Lingle’s recognition that due process claims do, indeed, 

have a place in constitutional land use litigation. 

These cases clearly demonstrate that constitutional land use 

cases are notorious for their inconsistency. The chaos surrounding 

the standard for due process claims is extraordinary and begs for 

congressional guidance. In order to correct this situation, H.R. 4772 

amends 42 U.S.C. § 1983 to state that a government land use body 

violates due process when its actions are ‘‘arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with law.’’ In 

this regard, the language tracks the text of the Administrative Procedure Act,32 which includes the traditional and deferential standard that courts are accustomed to employing when judging the legality of government regulatory action. Under this standard, it is 

well established that a government agency need only ‘‘examine the 

relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and 

the choice made.’ ’’

HEARINGS

The Committee’s Subcommittee on the Constitution held a hearing on H.R. 4772 on June 8, 2006. Witnesses appearing at the 

hearing were: Joseph L. Trauth, Jr., Keating, Muething & 

Klekamp, PLL; Franklin Kottschade, President, North American 

Realty; Daniel L. Siegel, Supervising Deputy Attorney General, Office of the Attorney General, State of California; and Steven J. 

Eagle, Professor of Law, George Mason University School of Law. 

COMMITEE CONSIDERATION

On July 12, 2006, the Committee met in open session and ordered favorably reported the bill H.R. 4772 with an amendment by 

voice vote, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the committee consideration of H.R. 4772. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of RepVerDate Aug 31 2005 04:39 Sep 16, 2006 Jkt 049006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR658.XXX HR658

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resentatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 4772, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

AUGUST 31, 2006. 

Hon. F. JAMES SENSENBRENNER, Jr., 

Chairman, Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4772, the Private Property Rights Implementation Act of 2005. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Daniel Hoople. 

Sincerely, 

DONALD B. MARRON, 

Acting Director. 

Enclosure. 

H.R. 4772—Private Property Rights Implementation Act of 2005 

H.R. 4772 would provide greater access to the federal courts to 

parties whose property rights have been affected by the decisions 

of federal, state, and local governments. As a result, the bill is likely to impose additional costs on the federal government by increasing both the number of cases heard by federal courts and the number of claims brought against the United States. CBO has no basis, 

however, for estimating new discretionary expenses (incurred by 

the court system to try new cases) or increases in direct spending 

(for future awards that may be paid from the permanent indefinite 

judgment appropriation). 

CBO has not reviewed this bill for intergovernmental or privatesector mandates. Section 4 of the Unfunded Mandates Reform Act 

of 1995 excludes from application of that act legislative provisions 

that enforce constitutional rights of individuals. CBO has determined that H.R. 4772 would fall within that exclusion because 

changes to federal jurisdiction over property rights cases would involve the enforcement of certain individual constitutional rights. 

The Fifth Amendment prohibits the taking of private property for 

public use without just compensation. This restriction on government action is extended to the states through the due process 

clause of the 14th Amendment. Under current law, parties who believe that a government agency’s actions or decisions have taken 

their property may sue the federal, state, or local government. 

Plaintiffs alleging takings by state and local governments are often 


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denied access to federal district courts, however, until they have 

exhausted their opportunities to obtain compensation through the 

state courts. 

H.R. 4772 would give greater access to federal courts to plaintiffs 

making claims based on property owners’ rights secured by the 

Constitution. First, this bill would prohibit a federal district court 

from refusing to hear claims of takings by states and localities 

until a final decision has been rendered by a state court. The bill 

also would make other changes to existing law applicable to 

takings claims, such as defining ‘‘final decision’’ for the claims, 

thereby relaxing the standards by which such claims are found ripe 

for adjudication in federal district courts or in the U.S. Court of 

Federal Claims. 

Section 6 of the bill would change the standards for evaluating 

takings claims where the United States is acting as a defendant. 

Under current law, courts analyze contiguous lots as a single parcel to determine whether a taking has occurred. H.R. 4772 would 

narrow the courts’ analysis to the impact on each lot, effectively allowing some claims that would have been denied under a ‘‘parcel 

as a whole’’ analysis. In addition, under H.R. 4772, a taking would 

be deemed a violation of substantive due process if decisionmaking 

by a federal agency was found to be ‘‘arbitrary and capricious.’’

CBO expects that enacting the changes under H.R. 4772 would 

impose additional costs on the U.S. court system to the extent that 

additional takings claims are filed and heard in federal courts. 

Based on information obtained from various legal experts, however, 

CBO estimates that only a small percentage of all civil cases filed 

in state courts involve takings claims and that only a small proportion would be tried in federal court as the result of enacting H.R. 

4772 (in part because state and local regulators may have an incentive to settle with plaintiffs to avoid a trial in federal court). On 

the other hand, most cases that would reach trial in a federal court 

as a result of this bill are likely to involve relatively large claims 

and could be time-consuming and costly to adjudicate. In addition, 

based on information from the Department of Justice, CBO estimates that the number of cases brought to court would increase 

under the new standards. Lower legal standards may also increase 

the number and size of payments from the permanent, indefinite 

judicial settlement fund. However, CBO has no basis for estimating 

the number of cases that would be affected or the amount of court 

costs that would result. Administrative costs for handling additional cases would be paid from appropriated funds, while any additional judgment payments would increase direct spending. 

The CBO staff contact for this estimate is Daniel Hoople. This 

estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 4772, the Private Property Rights Implementation Act of 2006, is designed to 

ensure that private property owner’s Fifth Amendment takings 

claims can be heard by a Federal court. 


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CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short title 

This section provides the short title for the bill as the ‘‘Private 

Property Rights Implementation Act of 2006.’’

Section 2. Jurisdiction in civil rights cases concerning real property 

This section prevents a Federal court from refusing to hear a 

case in which only Federal claims are alleged. If a matter of State 

law is unresolved, then the Federal district court may certify the 

question of State law to the highest appellate court of that State. 

After the State appellate court resolves the question certified to it, 

the Federal district court shall proceed with resolving the merits 

of the Federal claim. 

This provision addresses abstention, the legal principle under 

which courts relinquish their jurisdiction over a case and refuse to 

hear it. Abstention is one of the primary jurisdictional hurdles that 

currently prevent nearly all property owners from having their 

Federal Fifth Amendment taking claims heard in Federal court. 

This provision of H.R. 4772 states that abstention can not be exercised by a Federal court in a takings case where no State law claim 

is alleged, and where there is no pending State court proceeding 

addressing the same claims. Moreover, to address any concerns 

about Federal courts’ entangling themselves with State law issues, 

this section allows a Federal judge to have unresolved questions 

concerning State law answered by the State courts through a certification procedure if doing so is factually necessary to resolve the 

Federal constitutional property rights claim. This ensures that Federal courts do not decide State law issues, while ensuring property 

owners have access to Federal court to defend their Fifth Amendment rights. 

This section also allows a property owner whose constitutional 

rights may have been violated the same access to Federal court 

that other claimants alleging a violation of their constitutional 

rights (such as freedom of speech and religion) have. Accordingly, 

under this section, a property owner raising solely Federal claims 

can have his or her case decided in Federal court without first pursuing a litigation detour in State court on the same issues. If an 

individual claims that his constitutional right to free speech was 

violated, he can take that claim directly to Federal court. The same 

goes for alleged infringements of other constitutional rights, like 

the rights to privacy and the free exercise of religion, and all such 

claims can be brought immediately in Federal court. However, 

property owners with a Fifth Amendment claim have been treated 

differently and unfairly by courts. Unlike other constitutional 

cases, the Federal courts require that property owners with takings 

and due process claims litigate their case in State court first. This 


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unfair situation derives from the Supreme Court’s Williamson 

County (1985) decision, which the lower Federal courts have interpreted as requiring property owners to pursue, and exhaust, all 

available remedies for just compensation in State court, before the 

property owner can file suit in Federal court on a Fifth Amendment claim. Moreover, the Supreme Court’s decision in San Remo 

(2005) confirmed that once a takings case is brought to State court 

and decided there, the property owner is forever precluded from a 

review of the case in Federal court, thereby placing property owners who want to file a constitutional takings claim in Federal court 

in an untenable Catch-22. 

Section two of the bill also clarifies when a constitutional takings 

claim is ‘‘ripe’’ and therefore ready for Federal adjudication. Current case law requires, among other factors, a ‘‘final decision’’ to be 

rendered before a constitutional takings claim is ripe, because exactly what a ‘‘final decision’’ is is unclear under current law. Under 

the terms of the bill, a final agency decision exists after a property 

owner goes through three steps: (1) the property owner submits 

and is denied a ‘‘meaningful application’’ to use property that is 

consistent with local land use and zoning requirements; (2) the 

property owner then applies for but is denied a waiver from applicable land use requirements that caused the initial application to 

be rejected; and (3) after the waiver is denied, the property owner 

then pursues but is denied an administrative appeal on the waiver. 

Therefore, the legislation provides that a property owner would 

have a ripe Fifth Amendment constitutional claim for adjudication 

in Federal court only after land use reviews at the application, 

waiver, and administrative appeal levels. 

Finally, section two includes an explanation of ‘‘futility.’’ This 

provision reflects current case law of the Supreme Court and states 

that a property owner shall not be required to apply for an appeal 

or waiver if no such appeal or waiver is available, if the appeal or 

waiver cannot provide the relief requested, or if the application 

would be futile. 

Section 3. United States as defendant 

This section closely mirrors section 2 but applies to takings 

claims against the United States. This section applies only to suits 

against the Federal government involving $10,000 or less. Under 

Federal law, these cases are tried in Federal district court. 

Section 4. Jurisdiction of Court of Federal Claims 

Section 4 is identical to section 3, except it applies to suits 

against the Federal government involving more than $10,000. 

Under Federal law, these cases are heard in the Court of Federal 

Claims. 

Section 5. Clarification for certain constitutional property rights 

claims 

Section 5 clarifies the rights of property owners raising certain 

types of constitutional claims. 

Subsection 1 of section 5 clarifies that conditions or exactions 

that are imposed upon a property owner in order to receive a permit must be roughly proportional to the impact the development 

might have. This would apply to all kinds of exactions, regardless 


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of whether the exaction stems from a legislative or regulatory requirement. Property owners and business owners may constitutionally be required to cover the government’s costs that are incurred due to development or expansion of a business. For example, 

exactions may be imposed on developers to pay for expanding 

schools to accommodate children who will be living in the new development. Also, a business owner who is seeking permission to expand the business may be required to pay for the costs of installing 

a stop light if the expansion will result in an increase in traffic, 

and the increase in traffic merits a stop light. However, sometimes 

the conditions imposed on a development plan amount to nothing 

more than extortion. Occasionally, a government will try to palmoff on a property owner a condition for approval that has nothing 

to do with the project at hand or has no relationship to the extent 

of the project’s impact. For example, a developer cannot be required 

to build a new school for children who already live in the town and 

likewise should not be required to pay for a road that will not be 

used by residents of the subdivision under construction, and the 

business owner should not be required to build a library or fund 

art exhibits in exchange for receiving approval to expand her store. 

Property owners should have the right in Federal court to defend 

themselves against unreasonable exactions or impact fees that 

amount to extortion. The Supreme Court in the Nollan (1987) and 

Dolan (1994) cases affirmed these principles, but this subsection 

clarifies that these principles apply to both regulatory and legislatively-imposed exactions, and extortionate conditions in any form, 

whether they encompass the forced relinquishment of land, the 

payment of disproportionate fees, or some other demanded condition that has no nexus to the project or its impact on public resources. 

Subsection 2 of section 5 clarifies the so-called ‘‘denominator 

question’’ in cases concerning subdivided lots by requiring that 

Federal courts look at the impact of a takings claim on each individual lot that is recognized as a separate independent property 

unit under State law. If a government approves subdividing a property into lots, the property owner is often required to pay higher 

property taxes on each of the newly-created lots. On occasion, the 

government will later impose restrictions on some of the lots that 

deprive the property owner of all use of that particular lot. In challenging such an action as an unconstitutional taking, courts frequently look at the entire swath of owned property. In doing so, the 

courts almost always rule that as long as the property owner can 

still develop some of the lots in a larger subdivision, it is not a taking. In this scenario, the property owner is now saddled with unusable lots on which he or she is paying a higher property tax burden. It is unjust for cities to both receive the higher tax revenue 

on individual lots and also deny the property owner the use of that 

lot. If the government wants to receive the monetary benefit of taxing each individual lot as a separate unit, then it should also have 

the responsibility of paying compensation when it takes each individual lot and renders it unusable by regulation. The proper remedy is for the courts to look at each individual lot rather than the 

entire subdivision, and that is what this section of H.R. 4772 requires. This means that a property owner may have a valid conVerDate Aug 31 2005 04:39 Sep 16, 2006 Jkt 049006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR658.XXX HR658

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stitutional takings claim if any single lot is rendered unusable due 

to government actions. 

Subsection 3 of section 5 clarifies due process violations in a 

takings case should be found when the government has been found 

to have acted in an ‘‘arbitrary and capricious’’ manner. This section 

of H.R. 4772 provides that the appropriate question in a due process case in land use matters is whether the government had no rational basis for its decision and it made an ‘‘arbitrary and capricious’’ decision. (Proving that a government made an arbitrary and 

capricious decision on a land use matter remains an extremely high 

standard, and only a small number of land use cases will meet it.) 

Section 6. Clarification for certain constitutional property rights 

claims against the United States 

This section, which was added by an amendment by Representative Flake, extends the clarifications of section 5 to cases in which 

the Federal government takes property in violation of the takings 

clause. 

Section 7. Duty of notice to owners 

This section requires a Federal agency to provide notice to property owners explaining their rights and the procedures for obtaining any compensation that may be due to them whenever that 

agency takes an action impacting their private property. 

Section 8. Severability and effective date 

This section makes the provisions of this act severable should 

any provision be found unconstitutional. This section also provides 

that the amendments made by this act become effective when it is 

signed into law. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

TITLE 28, UNITED STATES CODE 

* * * * * * * 

PART IV—JURISDICTION AND VENUE 

* * * * * * * 

CHAPTER 85—DISTRICT COURTS; JURISDICTION 

* * * * * * * 

§ 1343. Civil rights and elective franchise 

(a) * * * 

* * * * * * * 

(c) Whenever a district court exercises jurisdiction under subsection (a) in an action in which the operative facts concern the uses 


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of real property, it shall not abstain from exercising or relinquish 

its jurisdiction to a State court if the party seeking redress does not 

allege a violation of a State law, right, or privilege, and no parallel 

proceeding is pending in State court, at the time the action is filed 

in the district court, that arises out of the same operative facts as 

the district court proceeding. 

(d) In an action in which the operative facts concern the uses of 

real property, the district court shall exercise jurisdiction under subsection (a) even if the party seeking redress does not pursue judicial 

remedies provided by a State or territory of the United States. 

(e) If the district court has jurisdiction over an action under subsection (a) in which the operative facts concern the uses of real property and which cannot be decided without resolution of an unsettled 

question of State law, the district court may certify the question of 

State law to the highest appellate court of that State. After the State 

appellate court resolves the question so certified, the district court 

shall proceed with resolving the merits. The district court shall not 

certify a question of State law under this subsection unless the question of State law— (1) is necessary to resolve the merits of the Federal claim of 

the injured party; and 

(2) is patently unclear. 

(f)(1) Any claim or action brought under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) to redress the 

deprivation of a property right or privilege secured by the Constitution shall be ripe for adjudication by the district courts upon a final 

decision rendered by any person acting under color of any statute, 

ordinance, regulation, custom, or usage, of any State or territory of 

the United States, which causes actual and concrete injury to the 

party seeking redress. 

(2) For purposes of this subsection, a final decision exists if—

(A) any person acting under color of any statute, ordinance, 

regulation, custom, or usage, of any State or territory of the 

United States, makes a definitive decision regarding the extent 

of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may be permitted elsewhere; and 

(B) one meaningful application to use the property has been 

submitted but denied, and the party seeking redress has applied 

for but is denied one waiver and one appeal, if the applicable 

statute, ordinance, regulation, custom, or usage provides a 

mechanism for waiver by or appeal to an administrative agency. 

The party seeking redress shall not be required to apply for a waiver 

or appeal described in subparagraph (B) if such waiver or appeal 

is unavailable or can not provide the relief requested, or if pursuit 

of such a mechanism would otherwise be futile. 

* * * * * * * 

§ 1346. United States as defendant 

(a) * * * 

* * * * * * * 

(h)(1) Any claim brought under subsection (a) that is founded 

upon a property right or privilege secured by the Constitution, but 


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was allegedly infringed or taken by the United States, shall be ripe 

for adjudication upon a final decision rendered by the United 

States, which causes actual and concrete injury to the party seeking 

redress. 

(2) For purposes of this subsection, a final decision exists if— (A) the United States makes a definitive decision regarding 

the extent of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may 

be permitted elsewhere; and 

(B) one meaningful application to use the property has been 

submitted but denied, and the party seeking redress has applied 

for but is denied one waiver and one appeal, if the applicable 

law of the United States provides a mechanism for waiver by 

or appeal to an administrative agency. 

The party seeking redress shall not be required to apply for a waiver 

or appeal described in subparagraph (B) if such waiver or appeal 

is unavailable or can not provide the relief requested, or if pursuit 

of such a mechanism would otherwise be futile. 

(i) If a claim brought under subsection (a) is founded upon a 

property right or privilege secured by the Constitution that concerns—

(1) an approval from an executive agency to permit or authorize uses of real property that is subject to conditions or exactions, then the United States is liable if any such condition or 

exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication of real property from the injured party, is unconstitutional; 

(2) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, 

or the District of Columbia, then such a claim against an executive agency shall be decided with reference to each subdivided 

lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by 

the State or territory, or the District of Columbia, as the case 

may be; or 

(3) an alleged deprivation of substantive due process, then the 

United States shall be judged as to whether its action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 

In this subsection, the term ‘‘executive agency’’ has the meaning 

given that term in section 105 of title 5. 

* * * * * * * 

CHAPTER 91—UNITED STATES COURT OF FEDERAL 

CLAIMS 

* * * * * * * 

§ 1491. Claims against United States generally; actions involving Tennessee Valley Authority 

(a)(1) * * * 

* * * * * * * 

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fringed or taken by the United States, shall be ripe for adjudication 

upon a final decision rendered by the United States, that causes actual and concrete injury to the party seeking redress. For purposes 

of this paragraph, a final decision exists if— (A) the United States makes a definitive decision regarding 

the extent of permissible uses on the property that has been allegedly infringed or taken, without regard to any uses that may 

be permitted elsewhere; and 

(B) one meaningful application to use the property has been 

submitted but denied, and the party seeking redress has applied 

for but is denied one waiver and one appeal, if the applicable 

statute, ordinance, regulation, custom, or usage provides a 

mechanism for waiver by or appeal to an administrative agency. 

The party seeking redress shall not be required to apply for a waiver 

or appeal described in subparagraph (B) if such waiver or appeal 

is unavailable or can not provide the relief requested, or if pursuit 

of such a mechanism would otherwise be futile. 

(4) If a claim brought under subsection (a) is founded upon a 

property right or privilege secured by the Constitution that concerns—

(A) an approval from an executive agency to permit or authorize uses of real property that is subject to conditions or exactions, then the United States is liable if any such condition or 

exaction, whether legislative or adjudicatory in nature, including but not limited to the payment of a monetary fee or a dedication of real property from the injured party, is unconstitutional; 

(B) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, 

or the District of Columbia, then such a claim against an executive agency shall be decided with reference to each subdivided 

lot, regardless of ownership, if such a lot is taxed, or is otherwise treated and recognized, as an individual property unit by 

the State, or territory, or the District of Columbia, as the case 

may be; or 

(C) an alleged deprivation of substantive due process, then 

the United States shall be judged as to whether its action is arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law. 

In this paragraph, the term ‘‘executive agency’’ has the meaning 

given that term in section 105 of title 5. 

* * * * * * * 

SECTION 1979 OF THE REVISED STATUES OF THE 

UNITED STATES 

SEC. 1979. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the 

District of Columbia, subjects, or causes to be subjected, any citizen 

of the United States or other person within the jurisdiction thereof 

to the deprivation of any rights, privileges, or immunities secured 

by the Constitution and laws, shall be liable to the party injured 

in an action at law, suit in equity, or other proper proceeding for 


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redress, except that in any action brought against a judicial officer 

for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was 

violated or declaratory relief was unavailable. For the purposes of 

this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District 

of Columbia. If the party injured seeks to redress the deprivation of 

a property right or privilege under this section that is secured by the 

Constitution by asserting a claim that concerns—

(1) an approval to develop real property that is subject to conditions or exactions, then the person acting under color of State 

law is liable if any such condition or exaction, whether legislative or adjudicatory in nature, including but not limited to the 

payment of a monetary fee or a dedication of real property from 

the injured party, is unconstitutional; 

(2) a subdivision of real property pursuant to any statute, ordinance, regulation, custom, or usage of any State or territory, 

or the District of Columbia, then such a claim shall be decided 

with reference to each subdivided lot, regardless of ownership, 

if such a lot is taxed, or is otherwise treated and recognized, as 

an individual property unit by the State, territory, or the District of Columbia; or 

(3) alleged deprivation of substantive due process, then the 

action of the person acting under color of State law shall be 

judged as to whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 

For purposes of the preceding sentence, ‘‘State law’’ includes any law 

of the District of Columbia or of any territory of the United States. 

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, JULY 12, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:45 a.m., in Room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Committee) presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present. 

[Intervening business.] 

Chairman SENSENBRENNER. Pursuant to notice, I now call up the 

bill H.R. 4772, the ‘‘Private Property Rights Implementation Act of 

2005,’’ for purposes of mark up and move its favorable recommendation to the House. 

[The bill, H.R. 4772, follows:] 


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Chairman SENSENBRENNER. Without objection, the bill will be 

considered as read and open for amendment at any point. 

The Chair recognizes the author of the legislation, Mr. Chabot, 

Chairman of the Subcommittee on the Constitution, for 5 minutes 

to explain the bill. 

Mr. CHABOT. Thank you, Mr. Chairman. 

I would first like to compliment the Chairman on his gavel. We 

appreciate it. There is a story behind that, and one must check out 

the New York Times if they—— Chairman SENSENBRENNER. If the gentleman would yield, it is 

the front page of yesterday’s New York Times. 

Mr. CHABOT. Yes, so if anybody wants to get to the details of 

this. 

But I thank the Chairman. 

We introduce this bill, H.R. 4772, the ‘‘Private Property Rights 

Implementation Act,’’ along with our Democratic colleague Bart 

Gordon of Tennessee, earlier this year to help all Americans defend 

their constitutionally protected property rights. 

I would also like to thank the gentleman from California, Mr. 

Gallegly, for his leadership on this issue as well as his work over 

the years and getting it successfully passed back in, I believe, the 

105th Congress. 

Most Americans are familiar with one recent decision involving 

all Americans’ property rights, the case of Kelo v. City of New London, in which the Supreme Court held that the Constitution allows 

Government to take private property from one citizen and give it 

to a private company. 

The House of Representatives acted to correct that victorious decision by passing a bill, H.R. 4128, by the overwhelming bipartisan 

margin of 376 to 38. However, the Supreme Court during its last 

term handed down another bad decision that fails to protect the 

property rights of all Americans and correcting that decision 

through the legislation we will be addressing today should have the 

same bipartisan support. 

Here is the problem. Strange as it sounds, under current law 

property owners are now blocked from raising a Federal fifth 

amendment takings claim in Federal court. Here is why! The Supreme Court’s 1985 decision in Williamson County v. Hamilton 

Bank requires property owners to pursue to the end all available 

remedies for just compensation in State court before the property 

owner can file suit in Federal court under the Fifth Amendment. 

Just last year in the case of San Remo Hotel v. City and County 

of San Francisco, the Supreme Court held that once the property 

owner tries their case in State court and loses, the legal doctrine 

of claim preclusion requires Federal courts to dismiss the claims 

that have already been raised in State court, even though the property owner never wanted to be in State court with their Federal 

claim in the first place. 

The combination of these two rules means that those with Federal property rights claims are effectively shut out of Federal court 

on their Federal takings claims, setting them unfairly apart from 

those asserting any other kind of Federal rights, such as those asserting free speech or religious freedom rights, who nearly universally enjoy the right to have their Federal claims heard in Federal 

court in the first instance. 


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The late Chief Justice Rehnquist commented directly on this unfairness, observing in his concurring opinion in the San Remo case 

that, ‘‘The Williamson County decision all but guarantees that 

claimants will be unable to utilize the Federal courts to enforce the 

Fifth Amendment’s just compensation guarantee.’’ The 2nd Circuit Court of Appeals also noted that, ‘‘It is both ironic and unfair if the very procedure that the Supreme Court required property owners to follow before bringing a Fifth Amendment takings claim, a State court takings action, also precluded 

them from ever bringing a fifth amendment takings claim in the 

Federal court.’’ H.R. 4772, the ‘‘Private Property Rights Implementation Act’’ that we are considering here today, will correct the unfair legal 

bind that catches all property owners in a Catch-22. This bill, 

which is based on Congress’ clear authority to define the jurisdiction of the Federal courts and the appellate jurisdiction of the Supreme Court, would allow property owners raising Federal takings 

claims to have their cases decided in Federal court without first 

pursuing a wasteful and unnecessary litigation detour and possible 

dead end in State court. 

H.R. 4772 would also remove another artificial barrier blocking 

property owners’ access to Federal court. The Supreme Court’s 

Williamson County decision also requires that before a case can be 

brought for review in a Federal court, property owners must first 

obtain a final decision from the State government on what is an 

acceptable use of their land. This has created an incentive for regulatory agencies to avoid making a final decision at all by stringing 

out the process and thereby forever denying property owner access 

to court. 

Studies of takings cases in the 1990’s indicate that it took property owners nearly a decade of litigation, which most property owners can’t afford, before takings claims were ready to be heard on 

the merits in any court. To prevent that unjust result, H.R. 4772 

would clarify when a final decision has been achieved and when 

the case is ready for Federal court review. 

Under this bill, if a land use application is reviewed by the relevant agency and rejected, a waiver is requested and denied, and 

an administrative appeal also rejects the application, then a property owner can bring their Federal constitutional claim in Federal 

court. 

Mr. Chairman, I would ask for an additional 2 minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. CHABOT. Thank you. 

The bill would not change the way agencies resolve disputes. 

Rather, H.R. 4772 simply makes clear the steps the property owner 

must take to make their case ready for court review. 

H.R. 4772 also clarifies the rights of property owners raising certain types of constitutional claims in the following ways. 

First, it would clarify that conditions that are imposed upon a 

property owner before they can receive a development permit must 

be proportional to the impact the development might have on the 

surrounding community. 

Second, it would clarify that if property units are individually 

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mining how much value the regulation has taken away from the 

individual lot affected, not a whole collection of lots grouped together. 

And, third, the bill would clarify that due process violations involving property rights should be found when the Government has 

been found to have acted in an arbitrary and capricious manner. 

Mr. Chairman, I urge my colleagues to join me in supporting this 

bipartisan legislation and yield back the balance of my time. 

Chairman SENSENBRENNER. Does the gentleman from Virginia 

wish to give the Democratic opening statement? 

Mr. SCOTT. No, Mr. Chairman. I would ask unanimous consent 

that the Ranking Member of the Committee be allowed to enter a 

statement into the record. 

Chairman SENSENBRENNER. Without objection. 

[The prepared statement of Mr. Conyers follows:] 


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Chairman SENSENBRENNER. Without objection, all Members may 

enter opening statements in the record. 

At this point, are there amendments? 

For what purpose does the gentleman from Arizona seek recognition? 

Mr. FLAKE. I have an amendment at the desk. 

Chairman SENSENBRENNER. Clerk will report the amendment. 

The CLERK. ‘‘Amendment to H.R. 4772, offered by Mr. Flake of 

Arizona. Insert the following after Section 5 and redesignate succeeding sections accordingly’’——

[The amendment by Mr. Flake follows:] 


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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. And the gentleman from Arizona is recognized 

for 5 minutes. 

Mr. FLAKE. I thank the Chairman. 

This is really a noncontroversial amendment. This simply would 

apply the same clarification that this bill makes in cases in which 

a locality is taking private property to cases in which the Federal 

Government is taking private property. 

Chairman SENSENBRENNER. Would the gentleman yield? 

Mr. FLAKE. Yes. 

Chairman SENSENBRENNER. It sounds good to me. I am willing 

to accept it. 

Mr. FLAKE. Sounds good. 

Mr. CHABOT. Mr. Chairman, we support the amendment as well. 

Chairman SENSENBRENNER. Okay. 

The question is on the amendment offered by the gentleman from 

Arizona, Mr. Flake. Those in favor will say ‘‘aye.’’

Opposed, ‘‘no.’’

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? 

For what purpose does the gentleman from California, Mr. 

Gallegly, seek recognition? 

Mr. GALLEGLY. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. GALLEGLY. And I won’t take 5 minutes, Mr. Chairman. 

I want to congratulate Mr. Chabot. We worked on this issue for 

many, many years together. In fact, almost 10 years ago, in fact 

it may be over 10 years ago—I lose time when we are having fun. 

But this bill that we had back in the 105th passed by an overwhelming majority, a bipartisan majority, in the House, and was 

only a couple of votes short of cloture in the Senate. Had they not 

had the cloture provision over there or the 60 percent rule, this 

rule would have been passed out of the House. What would have 

happened with it during the Clinton administration, of course, we 

will never know. 

But the fact remains that this is critical legislation. The gentleman from Ohio is to be commended for his leadership, and I 

would urge my colleagues to join in a strong vote of support and 

move this on to the floor. 

Mr. Chairman, I yield back. 

Mr. SCOTT. Will the gentleman yield? 

Mr. GALLEGLY. I would yield, yes. 

Mr. SCOTT. I would ask the gentleman if you could explain the 

100 percent rule and what the bill does to it. 

Mr. GALLEGLY. Mr. Chabot? 

Chairman SENSENBRENNER. The gentleman from California controls the time. 

Mr. GALLEGLY. I would yield to Mr. Chabot for—— Mr. CHABOT. If the gentleman would yield, are you talking about 

the subdivisions? The denominator question? The subdivisions? 

Mr. SCOTT. Yes. 

Mr. CHABOT. Essentially what we are talking about here is that 

if an individual subdivision, one of the parcels is taxed individually, 


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then it would be considered based upon its own, not the relationship within the whole subdivision. 

Mr. GALLEGLY. Reclaiming my time. 

Mr. Chairman, I would urge my colleagues to join in supporting 

this bill. 

I yield back. 

Chairman SENSENBRENNER. Are there amendments? 

Mr. SCOTT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman from Virginia has already been recognized for the minority statement. 

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from California seek recognition? 

Ms. LOFGREN. I move to strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. And I would yield my time to Mr. Scott. 

Mr. SCOTT. Thank you. 

Mr. Chairman, I would seek to clarify on the 100 percent rule 

and ask the gentleman from Ohio, if the property as a whole is 

being considered and one portion of that is rendered undevelopable, 

but the property of the whole can be developed nicely, would that 

constitute a taking? Is there a substantive change in the law in the 

bill? 

Mr. CHABOT. Would the gentleman yield? 

If the property is taxed separately, if it is a separate piece of 

property, then it would be considered on its own. 

Mr. SCOTT. Is that a substantive change in the law? 

Mr. CHABOT. It is a clarification of the law. 

Chairman SENSENBRENNER. Does the gentlewoman from California yield back? 

Ms. LOFGREN. I would yield back the balance of my time. 

Chairman SENSENBRENNER. Are there amendments? If there are 

no amendments, a reporting quorum is not present. 

Without objection, the previous question is ordered on the motion 

to report the bill H.R. 4772 favorably, and the vote on this question 

will be taken when a reporting quorum appears. 

[Intervening business.] 

The question occurs on the motion to report the bill H.R. 4772 

favorably as amended upon which the previous question has been 

ordered. 

All those in favor will say ‘‘aye.’’

Opposed, ‘‘no.’’

The ayes appear to have it. The ayes have it. The motion to report favorably is agreed to. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment and in the nature of a 

substitute incorporating the amendments adopted here today. 

Without objection, the staff is directed to make any technical conforming changes and all Members will be given 2 days as provided 

by the House rules in which to submit additional dissenting supplemental or minority views. 

[Intervening business.] 


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Chairman SENSENBRENNER. This concludes the business that is 

on the agenda. And without objection, the Committee stands adjourned. 

[Whereupon, at 2:30 p.m., the Committee was adjourned.] 

Æ 


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1 Ripeness is a judicial doctrine, partly rooted in Article III of the United States Constitution’s 

‘‘cases’’ and ‘‘controversies’’ requirement, which seeks to ensure that a matter is sufficiently mature for resolution. 2 Abstention is a discretionary doctrine under which a federal court may decline to decide 

cases that are otherwise properly before the court. The abstention doctrine is based on the notion that federal courts should not intrude on sensitive state political and judicial controversies 

unless it is necessary. 3See Letter from Joseph M. Stanton, Chief Lobbyist, National Association of Homebuilders 

to Members of the United States House of Representatives (March 1, 2006). 4 H.R. 4772, as well as its predecessors, was introduced in response to the United States Supreme Court’s decision in Williamson County v. Hamilton Bank (473 U.S. 186) (1985). The 

Court’s decision in Williamson County established that a takings plaintiff was barred from filing 

suit in federal court absent a definitive final decision by the local land use authorities and if 

plaintiff had failed to pursue available state procedures for obtaining compensation. Most recently, in San Remo Hotel v. City and County of San Francisco (545 U.S. 323) (2005). The Supreme Court confirmed and did not modify prior case law that held that once a property owner 

tries their case in state court, and loses, the doctrine of collateral estoppel bars the owner from 

re-litigating takings issues previously resolved by the state court. Furthermore, Subsection 2 of 

Section 5 overrides the parcel as a whole rule as upheld by the Supreme Court in 2002 in TahoeSierra Preservation Council v. Tahoe Regional Planning Agency (535 U.S. 302). 

DISSENTING VIEWS 

We respectfully dissent from the favorable reporting of H.R. 

4772, the ‘‘Private Property Rights Protection Act of 2005.’’ This 

legislation will narrow the judicial doctrine of ripeness 1 and significantly pare back the abstention doctrine 2 for land owners asserting so-called regulatory takings claims against state and local 

governments in federal courts. Supporters of H.R. 4772 argue that 

the legislation would allow greater and fairer access to federal 

courts by those who have federal property rights claims under the 

Fifth Amendment’s Taking Clause.3 However, H.R. 4772 appears to 

do little more than permit landowners to forum shop between state 

and federal courts when they pursue takings claims against the 

government. In addition, this bill would make significant changes 

to takings law as established by Supreme Court precedent.4

OVERVIEW

H.R. 4772 deals with regulatory takings—takings in which the 

government subjects property to regulations but does not change 

its ownership—such as zoning ordinances. H.R. 4772 would force 

premature federal involvement in local land use disputes and tells 

the states and municipalities that they are not competent to adjudicate their land disputes. This legislation would also benefit just 

one set of plaintiffs—real property owners alleging Fifth Amendment takings—to the exclusion of other persons who face abrogation of their constitutional rights and who must first bring their 

claims in state court. Furthermore, evidence suggests that state 

courts quickly and fairly resolve most takings cases so legislation 

like H.R. 4772 is unnecessary. Most significantly, H.R. 4772 may 

be unconstitutional as it would make cases prematurely—and unconstitutionally—‘‘ripe’’ for review, even if the claimant had not 

pursued available state remedies. Since such actions may not meet 


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5See Letters from the American Planning Association, the Community Rights Counsel, American Rivers, Clean Water Action, Defenders of Wildlife, Earthjustice, Friends of the Earth, NaContinued 

the constitutional standard of ‘‘finality,’’ such claims would be dismissed by the courts. 

H.R. 4772 revives—with some significant additions—a set of legislative proposals that have been pending in Congress for almost 

a decade. Most of the provisions of H.R. 4772 first appeared in the 

105th Congress as H.R. 1534, which passed the House by a mostly 

party line vote of 248 to 178, and as a portion of S. 2271, and 

which died on the Senate floor on a 52 to 42 cloture vote. In the 

106th Congress, the House passed a similar bill, H.R. 2372, by a 

vote of 226 to 182, but the proposal died in the Senate. Prior to this 

year, most observers had believed that this failed legislative effort 

had run its course. 

This so-called ‘‘procedural approach’’ to the takings issue was 

launched in the 105th Congress in response to the widely perceived 

extremism of the takings provision in the Contract with America 

in the 104th Congress. The Contract with America proposal would 

have inserted into federal law a new statutory standard for takings 

liability that went far beyond the standard for takings liability 

under the Takings Clause of the Fifth Amendment to the U.S. Constitution. This proposal passed the House, again, on a mostly party 

line vote, but generated widespread opposition and eventually died 

in the U.S. Senate. The procedural approach to takings in H.R. 

1534 was presented as an alternative, less extreme approach to 

takings. It also reflected the emerging role in the takings debate 

of the developer lobby, which is primarily interested in using the 

threat of takings litigation as leverage in land use negotiations. 

While H.R. 4772 includes many of the procedural elements of 

H.R. 2372 (and the earlier H.R. 1534), it also is designed to revive 

the controversial, discredited approach of altering the constitutional standard for takings liability. Indeed, in some ways H.R. 

4772’s approach to modifying constitutional standards is more extreme than the approach in the Contract with America. This bill 

would establish new standards of liability that would alter the constitutional standards under both the Takings Clause and the Due 

Process Clause. Unlike the Contract with America proposal, which 

primarily focused on altering the standard of liability applicable to 

the federal government, H.R. 4772 would establish new standards 

of liability exclusively applicable to state and local governments. In 

this sense, H.R. 4772 is a far greater assault on federalism that 

any prior takings proposal in Congress. 

Many groups join us in concluding that H.R. 4772 is not sound 

policy. These groups include the American Planning Association, 

the Community Rights Counsel, American Rivers, Clean Water Action, Defenders of Wildlife, Earthjustice, Friends of the Earth, National Audubon Society, National Wildlife Federation, Natural Resources Defense Council, Sierra Club, the Wilderness Society, U.S. 

Public Interest Research Group, the United States Conference of 

Mayors, the National Center for State Courts, the National League 

of Cities, the National Association of Counties, the National Conference of State Legislatures, the Council of State Governments 

and the International City Management Association.5


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tional Audobon Society, National Wildlife Federation, Natural Resources Defense Council, Sierra 

Club, the Wilderness Society, U.S. Public Interest Research Group, the United States Conference of Mayors, the National Center for State Courts, the National League of Cities, the National Association of Counties, the National Conference of State Legislatures, the Council of 

State Governments and the International City Management Association to Members of Congress 

(109th Congress) (on file with the House Committee on the Judiciary). 6Letter from the United States Conference of Mayors to the Honorable Arlen Specter, Senate 

Judiciary Chairman, and the Honorable Patrick Leahy, Senate Judiciary Ranking Member 

(June 6, 2006). 7Letter from Randall T. Shepard, Supreme Court of Indiana Chief Justice and Conference of 

Chief Justices President, to the Honorable James Sensenbrenner, Jr. House Judiciary Chairman, and the Honorable John Conyers, Jr., House Judiciary Ranking Member. 8Letter from the National League of Cities, the National Association of Counties, the National 

Conference of State Legislatures, the Council of State Governments and the International City 

Management Association to the Honorable Steve Chabot, House Judiciary Constitution Subcommittee Chairman, and the Honorable Jerrold Nadler, House Judiciary Constitution Subcommittee Ranking Member (June 8, 2006). 

The United States Conference of Mayors ‘‘support[s] the longstanding requirement that claimants under the Takings Clause of 

the U.S. Constitution pursue available State compensation procedures before filing a federal Takings claim in Federal court.’’ 6 The 

Conference of Chief Justices and the National Center for State 

Courts note that there is ‘‘no record that state courts generally fail 

to render fair decisions in land use cases.’’ 7 Notably, the National 

League of Cities, the National Association of Counties, the National 

Conference of State Legislatures, the Council of State Governments 

and the International City Management Association believe that 

‘‘the bill raises very serious constitutional questions. The Supreme 

Court has repeatedly stated that a takings claimant suffers no constitutional injury unless a state court has denied a claim for just 

compensation.’’ 8

CONCERNS WITH LEGISLATION

I. H.R. 4772 ENCOURAGES FEDERAL INTERFERENCE IN LOCAL MATTERS

H.R. 4772 would undermine local zoning and land use authority 

by giving large land developers and special interests a ‘‘club’’ with 

which to intimidate communities that cannot afford to put up a 

fight in federal court. In addition, by permitting takings plaintiffs 

to bring their cases in federal court prematurely, it would burden 

localities with higher legal fees—again discouraging independent 

decision-making at the local level at the risk of engaging in a protracted federal court fight. The costs of defending unjustified federal takings litigation would threaten local community fire, police, 

and environmental protection services. 

For example, a developer may apply for a permit to build 800 

homes on a parcel of land. A zoning official may deny that request, 

and a zoning board may as well. Without any determination of 

what would be a permissible use of that land short of the denied 

use, the case could be brought before a federal district court. Currently, such an issue might be deferred, dismissed or stayed while 

a state administrative agency or court concludes consideration of 

the claim. H.R. 4772 gives claimants a ‘‘fast track’’ to the federal 

courts, potentially burdening both the federal judiciary and the 

land use procedures of states and localities. 

H.R. 4772 would also minimize the local citizens’ ability to effectively participate in the land use process. At the administrative 

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9 Robert Meltz, CRS Report for Congress, ‘‘Property Rights’’ Bills Take a Process Approach: 

H.R. 992 and H.R. 1534, September 22, 1997 (97–877A). 10 Letter from Leonidas Ralph Mecham, Secretary, Judicial Conference of the United States, 

to Rep. Henry J. Hyde, Chairman, Committee on the Judiciary, Feb. 14, 2000, at 3. 

boring property owners and citizen groups sometimes do not find 

out about harmful land use proposals until the later stages of local 

processes—the very stages that the bill would allow developers to 

bypass. The bill would eliminate the most convenient and inexpensive forums for neighbors, who may be concerned about a proposal’s 

impact on their property, health, safety, community, and environment. We need to ask ourselves whether we really want to make 

it more difficult for our local governments to protect their citizens 

against groundwater contamination or to prevent a corporation 

from operating a waste dump? Do we really want to limit the ability of our local governments to regulate adult bookstores? Yet this 

is precisely the effect H.R. 4772 will have by prematurely allowing 

takings claims to be brought into federal court. 

II. H.R. 4772 ENCOURAGES FORUM SHOPPING AND CREATES AND

UNDUE BURDEN ON FEDERAL COURTS

H.R. 4772 increases a plaintiff’s ability to forum shop. Under the 

regime of H.R. 4772, developers would be given greater flexibility 

to choose to file suit in federal court when that forum appears to 

be more favorable to them in a particular jurisdiction, or to file suit 

in state court when the state forum is perceived to be more favorable. To the extent that courts apply the constitutional takings 

standard in a slightly different manner, we should not encourage 

parties to take unfair advantage of such variations among jurisdictions. 

The changes wrought by H.R. 4772 are likely to result in a significant increase in the federal judicial workload. In 1997, with respect to an earlier version of this legislation, the Congressional Research Service (CRS) has found ‘‘there is a sound argument that 

H.R. 1534 will result in a significant increase in the workload of 

the federal courts, particularly from takings litigation.’’ 9 When this 

legislation was first taken up in the 105th and 106th Congresses, 

the Judicial Conference of the United States commented, ‘‘this legislation could sweep large numbers of takings claims into the federal courts. Such an increase in case filings, especially if brought 

prematurely, could raise workload impact concerns and contribute 

to existing backlogs in some judicial districts.’’ 10

Another problem is that the legislation’s limitation on the abstention doctrine raises problems where the States do not have formal certification procedures. The bill creates a procedure whereby 

federal courts certify ‘‘significant but unsettled’’ questions of state 

law to the highest appellate court of the State. But not all States 

have adopted such procedures. Thus, the bill may block the federal 

courts from abstaining and could force them to decide the State law 

question themselves. 

Ultimately, H.R. 4772 creates a scheme completely at odds with 

federalist principles: the massive transfer of power over local land 

use decisions to the federal judiciary. 


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11See Hearing on H.R. 4772, the ‘‘Private Property Rights Implementation Act of 2005’’ Before 

the House Committee on the Judiciary, Subcommittee on the Constitution, 109th Congress 

(June 8, 2006) (testimony of Daniel Siegel, California Deputy Attorney General). 12 Id. 13 Community Rights Counsel, Talking Points, The False and Misleading Statistics Behind the 

NAHB Takings Bill, available at http://www.communityrights.org/PromotesSmartGrowth/NAHB/ 

talkingpoints.asp. 14 Id. 15 Id. 16 Id. 17See City of Monterey v. Del Monte Dunes, 526 US 687, 710 (takings claimants ‘‘suffer no 

constitutional injury’’ until the state court denies compensation). 

III. H.R. 4772 IS UNNECESSARY

Advocates of the bill allege that takings claims get bottled up for 

years in expensive and time-consuming litigation. In fact, there is 

no reliable evidence that this occurs with any statistical frequency.11 California Deputy Attorney General Daniel Siegel finds, ‘‘[w]hen compared to the many thousands of land use decisions 

made every year by the nation’s 35,000 cities and towns, however, 

and the typical length of time that the judicial process requires, the 

stories of extreme delay are isolated.’’ 12 Although the National Association of Home Builders (‘‘NAHB’’) has stated that it takes an 

average of 9.6 years to resolve takings disputes, the facts do not 

support this contention. NAHB arrived at this statistic by using 

only 14 federal appellate court cases over a nine-year period (1990– 1998).13 In view of the hundreds of land use matters handled by 

local governments every day, this tiny statistical sample—fewer 

than two cases per year—is meaningless. By ignoring the countless 

land use disputes that are resolved in the local planning process 

without litigation, as well as the hundreds of takings cases litigated in state court each year (the bulk of the lawsuits), the 

NAHB’s selective sampling biased the results of its survey.14 Moreover, if the NAHB’s argument concerning federal court delays has 

merit, it would see to militate against this bill which would place 

these cases into federal system. For all the complaints about the 

state courts, the NAHB study does not address that system at all. 

Supporters also allege that federal courts are hostile to property 

rights because they dismiss 83% of takings cases without reaching 

the merits.15 This statistic, too, is misleading. In the vast majority 

of the cases surveyed (29 of 33 cases), the federal court dismissed 

the takings case because the claimant’s lawyer refused to follow 

state procedures for seeking compensation before suing in federal 

court.16 The Supreme Court repeatedly has ruled that the Constitution requires takings claimants to follow state compensation 

procedures first.17 Federal courts hardly can be faulted for applying 

this straightforward and binding rule. It is therefore disingenuous 

to suggest that these cases demonstrate hostility to property rights 

by federal courts or local governments. This statistic merely shows 

that a few takings claimants (33 over a nine-year period) tend to 

lose when their attorneys ignore the rules that apply to everyone. 

IV. H.R. 4772 DEPARTS FROM TRADITIONAL CONSTITUTIONAL

INTERPRETATION AND SIGNIFICANTLY CHANGES TAKINGS LAW

H.R. 4772 contains provisions that were not found in the 105th 

and 106th’s versions of this bill. These new provisions are found in 

Section 5 and give additional cause for concern. 


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18 Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987). 19Dolan v. City of Tigard, 512 U.S. 374 (1994). 20See, e.g., Rogers Machinery v. Washington County, 45 P.3d 966 (Or.App. 2002). 21Penn Central Transp. Co. v. New York City, 438 U.S. 104,131–133 (1978); See Hearing on 

H.R. 4772, the ‘‘Private Property Rights Implementation Act of 2005’’ Before the House Committee on the Judiciary, Subcommittee on the Constitution, 109th Congress (June 8, 2006) (testimony of Daniel Siegel, California Deputy Attorney General). At the hearing, Daniel Siegel stated, ‘‘the bill seeks to modify the existing ‘‘parcel as a whole’’ rule under which the courts analyze 

the owner’s entire property interests, rather than the particular portion of the property that is 

regulated, to determine whether the impact of the regulation on a parcel is ‘‘so onerous’’ as to 

amount to a taking.’’ 22 Id. 

Subsection 1 of Section 5 addresses conditions or exactions imposed on developers in conjunction with the grant of development 

authorizations. It does so in a highly ambiguous and confusing 

fashion. The language appears to be circular in the sense that it 

states that localities shall be liable under section 1983 if conditions 

or exactions are unconstitutional. 

The bill broadens the terms ‘‘condition’’ or ‘‘exaction’’ by adding ‘‘whether legislative or adjudicatory in nature, including but not 

limited to the payment of a monetary fee or a dedication of real 

property from the injured party.’’ Although the Constitution appears to supply the governing standard for the purpose of this provision, this language can be read as at least attempting to encourage the view that all kinds of conditions and exactions may be subject to the same heightened constitutional scrutiny regardless of 

whether they are legislative or adjudicatory in nature, and regardless of whether they involve the payment of money or dedication 

of real property. 

The U.S. Supreme Court has said that a heightened standard of 

review, including specifically the so-called ‘‘essential nexus,’’ or 

Nollan test,18 and the ‘‘rough proportionality,’’ or Dolan test,19

apply to certain exactions, in particular those involving dedications 

of entitlements to physically occupy private property imposed 

through adjudicatory procedures. 

The Supreme Court has not said that the rule applicable to exactions applies to any and all sorts of conditions. In particular, it is 

very doubtful under current precedent whether these demanding 

tests apply to conditions requiring payment of money or exactions 

imposed through general legislation. Virtually all courts that have 

addressed the issue have concluded that financial exactions imposed through legislative measures are not subject to these demanding tests.20 To the extent this subsection is designed to promote the opposite viewpoint, it departs from the established reading of the Constitution. 

Subsection 2 of Section 5 would override the so-called ‘‘parcel as 

a whole’’ rule, a proposition the Supreme Court has repeatedly reaffirmed by finding that takings jurisprudence ‘‘does not divide a 

single parcel into discrete segments and attempt to determine 

whether rights in a particular segment have been entirely abrogated.’’ 21 Instead, the Court focuses ‘‘both on the character of the 

action and on the nature and extent of the interference with rights 

in the parcel as a whole.’’ 22 There has long been a debate about 

whether regulatory takings claims should be evaluated by focusing 

on the restricted portion of a property or an owner’s entire contiguous ownership. The Supreme Court effectively resolved this debate in favor of the parcel as a whole rule in the 2002 decision in 


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23 535 U.S. 302 (2002). 24See e.g. Broadwater Farms Joint Venture v. United States, 232 F.3d 908 (Fed. Cir. 2000), 

District Intown Properties Ltd. v. District of Columbia, 198 F.3d 874 (D.C. 1999). 25 City of Coeur D’Alene v. Simpson, 136 P.3d 310, 320 (2006) (citations omitted). 

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning 

Agency.23 Many courts have recognized that the parcel as a whole 

rule applies regardless of whether the property is divided into separate tax lots or is otherwise divided up for other purposes.24

In overriding the established application of the parcel as a whole 

rule, Subsection 2 of Section 5 would allow a developer to divide 

up the lot in order to have a small section considered independently for takings purposes. For example, if a developer owned property, 99% of which was suitable for development, and 1% of which 

consisted exclusively of wetlands, the bill would allow the developer 

to divide that 1% into an independent parcel and claim a 100% loss 

that would be potentially compensable. The new rule would thus 

allow a developer to game the system and force taxpayers to pay 

‘‘compensation’’ for the developer’s ability to build on 99% of his 

land. The Constitution has never guaranteed the ability to build on 

every square inch of property regardless of the harm it would cause 

neighboring landowners and the community at large. This radical 

change in the parcel as a whole rule which would give developers 

a limitless ability to game the system and defraud taxpayers. 

Faced with an attempt by a plaintiff to divide a property in the 

manner permitted by this legislation, the Idaho Supreme Court 

had this to say: 

We cannot say, however, that the transfer and fact of separate ownership by themselves necessarily end the inquiry. 

Indeed, the City has questioned the purpose of the transfer 

and we believe the circumstances of the transfer may be 

entirely relevant to the denominator inquiry. To explain: a 

rule that separate ownership is always conclusive against 

the government would be powerless to prevent landowners 

from merely dividing up ownership of their property so as 

to definitively influence the denominator analysis. It is not 

pure fantasy to imagine a scenario wherein halfway 

through a takings suit, Landowner agrees with Company 

to transfer a parcel of Beachacre—which appears, as the 

waterward parcel does here, to be separate from Landowner’s other parcel-with a wink-and-a-nod agreement to 

transfer back after the suit or to jointly manage, use, and 

develop the property. As the Court of Claims explained in 

Ciampitti, supra, the purpose of the denominator inquiry 

is to define the property as realistically and fairly as possible in light of the factual circumstances. We cannot endorse a rule that turns a blind eye to all the relevant factual circumstances, including the purpose, character and 

timing of any transfer, especially one made during the 

course of a takings case.25

Finally, subsection 3 of Section 5 would provide that, in the case 

of alleged deprivations of property rights or privileges, a substantive Due Process claim should be evaluated based on ‘‘whether 

[the government action] is arbitrary, capricious, an abuse of discreVerDate Aug 31 2005 04:39 Sep 16, 2006 Jkt 049006 PO 00000 Frm 00048 Fmt 6604 Sfmt 6602 E:\HR\OC\HR658.XXX HR658

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26See, e.g., United Artists Theatre Circuit v. Township of Warrington, 316 F.3d 392 (3rd Cir. 

2003) (Alito, J.); See also Hearing on H.R. 4772, the ‘‘Private Property Rights Implementation 

Act of 2005’’ Before the House Committee on the Judiciary, Subcommittee on the Constitution, 

109th Congress (June 8, 2006) (testimony of Daniel Siegel, California Deputy Attorney General). 27 Hearing on H.R. 4772, the ‘‘Private Property Rights Implementation Act of 2005’’ Before the 

House Committee on the Judiciary, Subcommittee on the Constitution, 109th Congress (June 

8, 2006) (testimony of Daniel Siegel, California Deputy Attorney General). 28 Justice Powell Took no part in the decision. 29 473 U.S. at 186. 30 Id. at 191–95. 31Williamson, 473 U.S. at 190–91; see also McDonald, 477 U.S. at 350 (‘‘Whether the inquiry 

asks if a regulation has gone ‘gone too far,’ or whether it seeks to determine if proffered compensation is ‘just,’ no answer is possible until a court knows what use, if any, may be made 

of the affected property.’’). 32 526 U.S. at 721. 

tion or otherwise not in accordance with law.’’ The provision is apparently designed to overturn the widely accepted view that substantive due process claims should be evaluated under a ‘‘shocks 

the conscience’’ standard.26 Deputy Attorney General Siegel testified, ‘‘[u]nder that standard [the ‘‘shocks the conscience’’ standard], 

it is ‘‘insufficient’’ to allege that local government ‘‘arbitrarily applied’’ a land use restriction.’’ 27

V. H.R. 4772 IS LIKELY UNCONSTITUTIONAL

In its 1985, 7–1 28 opinion in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme 

Court held that a takings claim is not ripe for federal court review 

if: (1) the property owner had not obtained a ‘‘final decision’’ from 

the appellate administrative agency, and (2) the property owner 

had not first filed the claim in state court to challenge the government action.29 Importantly, the Court held that these requirements 

inhere in the nature of the Takings Clause of the Constitution. The 

Court found that the plaintiff needed to avail itself of the state’s 

and locality’s procedures in order to evaluate essential components 

of the takings claim—the economic impact of the regulation and 

whether the claimant was denied just compensation.30 This rule is 

‘‘compelled by the very nature of the inquiry required by the Just 

Compensation [Takings] Clause’’ because the factors applied in deciding a takings claim ‘‘simply cannot be evaluated until the administrative agency has arrived at a final definitive position regarding how it will apply the regulations at issue to the particular 

land in question.’’ This Supreme Court authority indicates that 

H.R. 4772 unconstitutionally attempts to circumvent these constitutionally mandated ripeness requirements through a statutory 

mechanism.31

Significantly, the Supreme Court reaffirmed this principle in 

1999. In 1999, in Del Monte Dunes, the Court stated, ‘‘A federal 

court... cannot entertain a takings claim under § 1983 unless or 

until the complaining landowner has been denied an adequate post 

deprivation remedy. Even the State of California, where this suit 

arose, now provides a facially adequate procedure for obtaining just 

compensation for temporary takings such as this one.’’ 32 H.R. 4772 

would therefore appear to make cases prematurely—and unconstitutionally—‘‘ripe’’ for review, even if the claimant had not pursued 

available State remedies. 


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33 CRS stated specifically, ‘‘[a]bstention is indeed invoked by federal courts to dismiss or stay 

non-real-property-related section 1983 claims.’’ Robert Meltz, CRS Memorandum, ‘‘Property 

Rights’’ Bills Take a Process Approach: H.R. 992 and H.R. 1534, (September 22, 1997). 34See, e.g., Amerson v. State of Iowa, 94 F.3d 510 (8th Cir. 1996). 35See, e.g., Mann v. Jett, 781 F.2d 1448 (9th Cir. 1985). See also Bullock v. Woodside, 2000 

U.S. App. LEXIS 12814 (9th Cir. 2000) (the abstention doctrine outlined in Mann applies only 

to criminal prosecutions). 36See, e.g., Manney v. Cabell, 654 F.2d 1280 (9th Cir. 1990), cert. denied, 455 U.S. 1000 

(1982), See also Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984) (abstention in Manney was 

proper because the law which was at issue in the case was ‘‘unusual.’’) 37See, e.g., Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978). Winters identified three times when 

abstention is proper: (1) when the state statute is unclear or the issue of law uncertain; (2) when 

resolution of a federal issue depends upon the interpretation given to a state law; and (3) when 

the state law is susceptible to an interpretation that would avoid or modify the constitutional 

issue. Id. 38Tiger Inn v. Edwards held that abstention is proper for the state court to clarify the state 

court position on the applicable law. 636 F. Supp. 787 (D.N.J. 1986). 39See, e.g., Allen v. McCurry, 449 U.S. 90 (1980) (individual required to litigate a Fourth 

Amendment search and seizure claim in a state criminal proceeding is completely barred from 

asserting his federal constitutional claim in a subsequent Section 1983 action in federal court); 

Heck v. Humphrey, 512 U.S. 477 (1994) (abstention may be appropriate when there is a parallel 

state-court criminal proceeding). 

VI. H.R. 4772 ELEVATES PROPERTY RIGHTS OVER OTHER

CONSTITUTIONAL RIGHTS

H.R. 4772 elevates property rights over other constitutional 

rights by giving claimants with takings claims expedited access to 

the federal courts, while leaving in place requirements that plaintiffs with other constitutional claims exhaust state court procedures before filing a case in federal court. This turns the very purpose of Section 1983 actions completely on its head by making 

property rights the civil right most explicitly and prominently protected by Section 1983. Section 1983 was adopted as part of the 

Civil Rights Act of 1871 and was specifically designed to halt a 

wave of lynchings of African Americans that had occurred under 

guise of state and local law. 

In numerous instances, courts have stated that prior to filing a 

constitutional claim under 42 U.S.C. § 1983 in federal court, the 

plaintiff must first pursue state court remedies. The CRS finds that 

Federal courts invoke the abstention doctrine against many Section 

1983 claims—not just those Section 1983 claims that involve 

takings of property.33 This has occurred, for example, in cases involving constitutional challenges to the termination of parental 

rights,34 detention in violation of the 6th Amendment right to 

counsel,35 confinement for juvenile offenders in violation of the 8th 

Amendment,36 denial of Medicaid benefits in violation of 1st 

Amendment religious protections,37 gender discrimination,38 and 

many others.39 If we are going to give property owners the ability 

to ‘‘jump the line’’ into federal court, it seems only fair that we 

should extend this same right to other Section 1983 plaintiffs. 

CONCLUSION

In conclusion, H.R. 4772 presents a substantial number of concerns. We believe that H.R. 4772 serves as an assault on the principles of federalism. This legislation encourages forum shopping 

with no evidence that there is a need for increased access to federal 

courts for takings claims. Significantly, H.R. 4772 departs from traditional Constitutional interpretation and makes substantive 

changes in takings law. In fact, this bill could be deemed unconstitutional itself. We also take issue with this bill elevating property 


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rights over the very civil rights 1983 was enacted to protect. It is 

for these reasons that we must submit dissenting views on H.R. 

4772. 

JOHN CONYERS, Jr. 

DEBBIE WASSERMAN SCHULTZ. SHEILA JACKSON-LEE. CHRIS VAN HOLLEN. 

Æ 


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