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PRIVATE PROPERTY RIGHTS

IMPLEMENTATION ACT OF 2005

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 4772

JUNE 8, 2006

Serial No. 109–105

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

JUNE 8, 2006

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3

WITNESSES 

Mr. Joseph L. Trauth, Jr., Partner, Keating, Muething & Klekamp, PLL 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

Mr. Franklin Kottschade, President, North American Realty 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 21

Mr. Daniel L. Siegel, Supervising Deputy Attorney General, Office of the 

Attorney General, State of California 

Oral Testimony ..................................................................................................... 132

Prepared Statement ............................................................................................. 134

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

of Law 

Oral Testimony ..................................................................................................... 164

Prepared Statement ............................................................................................. 166

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions from Joseph L. Trauth, Jr., Partner, 

Keating, Muething & Klekamp, PLL ................................................................. 196

Response to Post-Hearing Questions from Franklin Kottschade, President, 

North American Realty ........................................................................................ 198

Response to Post-Hearing Questions from Daniel L. Siegel, Supervising Deputy Attorney General, Office of the Attorney General, State of California ..... 200

Response to Post-Hearing Questions from Professor Steven J. Eagle, Professor 

of Law, George Mason University School of Law .............................................. 202

Letters submitted for the Record by Chairman Chabot: 

Letter from Joseph M. Stanton, National Association of Homebuilders 

to the Honorable Jim Sensenbrenner, dated March 1, 2006 ..................... 205

Letter from R. Bruce Josten, Executive Vice President, Government Affairs, Chamber of Commerce of the United States of America, to the 

Members of the U.S. House of Representatives, dated March 8, 2006 .... 207

Letter from Bob Stallman, President, American Farm Bureau Federation, 

to the Honorable Steve Chabot, dated April 12, 2006 ............................... 208

Letter from Dan Danner, Executive Vice President, National Federation 

of Independent Business, to the Honorable Steve Chabot, dated May 

15, 2006 .......................................................................................................... 209

Letters submitted for the Record by Ranking Member Nadler: 

Letter from Terry L. Adkins, City Attorney, City of Rochester, Minnesota 

to the Honorable Steve Chabot and the Honorable Jerrold Nadler, 

dated June 9, 2006 ........................................................................................ 210

Page

IV

Letters submitted for the Record by Ranking Member Nadler—Continued

Letter from Rudolph W. Giuliani, Mayor, City of New York to the Honorable Patrick J. Leahy, dated October 28, 1997 ........................................... 261

Letter from The United States Conference of Mayors to the Honorable 

Arlen Specter and the Honorable Patrick Leahy, dated June 6, 2006 ..... 262

Letter from the National League of Cities, U.S. Conference of Mayors, 

National Association of Counties, National Conference of State Legislatures, Council of State Governments and the International City Management Association to the Honorable Steve Chabot and the Honorable 

Jerrold Nadler, dated June 8, 2006 ............................................................. 269

Letter from W. Paul Farmer, Executive Director and CEO, American 

Planning Association to the Honorable Steve Chabot and the Honorable 

Jerrold Nadler, dated June 11, 2006 ........................................................... 270

Letter from Timothy J. Dowling, Chief Counsel, Community Rights Counsel, to the Honorable Steve Chabot and the Honorable Jerrold Nadler, 

dated June 14, 2006 ...................................................................................... 272

(1)

PRIVATE PROPERTY RIGHTS

IMPLEMENTATION ACT OF 2005

THURSDAY, JUNE 8, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:03 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chairman of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

This is the Constitution Subcommittee of the Judiciary Committee, and we welcome everyone here this afternoon. We will have 

some other Members probably coming here shortly on both sides. 

The Constitution Subcommittee convenes today to discuss H.R. 

4772, the ‘‘Private Property Rights Implementation Act,’’ which I 

introduced earlier this year, along with the Democratic principal 

sponsor of the bill, Bart Gordon, to help all Americans defend their 

constitutional property protected rights. 

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 

the Government to take private property from one citizen and give 

it to private companies or other private individuals. 

The House of Representatives acted to correct that notorious decision by passing a bill, H.R. 4128, by the overwhelmingly bipartisan margin of 376–38. However, the Supreme Court, during its 

last term, handed down another—what many of us consider us to 

be bad decisions—that fails to protect the private property rights 

of all Americans. And correcting that decision through the legislation we will be discussing today should have the same bipartisan 

support, we hope. 

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

law, property owners are now blocked from raising a Federal fifth 

amendment takings claim in Federal court. 

And here is why. The Supreme Court’s 1985 decision in 

Williamson County v. Hamilton Bank requires property owners to 

pursue, to the end of all available remedies, for just compensation 

in State court before the private property owner can file suit in 

Federal court under the fifth amendment. 

Then, just last year, in the case of San Remo Hotel v. City and 

County of San Francisco, the Supreme Court held that, once a 

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

doctrine of claim preclusion requires Federal courts to dismiss the 

2

claims that have already been raised in State court, even though 

the property owner never wanted to be in State court with their 

Federal claims 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. These decisions set 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. 

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 Second 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’s taking action, also precluded them 

from ever bringing a fifth amendment takings claim in Federal 

court.’’

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

will correct the unfair legal bind that catches all property owners 

in what is effectively a Catch-22. This bill, which is based on 

Congress’s 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 lands. 

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 a property owner access to courts. 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 

claims in a Federal court. 

The bill would 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. 

3

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

And I recognize myself for 1 additional minute, without objection. 

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 

taxed under State law, then the adverse economic impact of a regulation—excuse me—then the adverse economic impact of 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 a whole collection of lots grouped together. 

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. 

I think we all look forward to discussing this legislation with our 

witnesses here this afternoon. We want to, again, thank them for 

appearing. 

And at this time I will yield to the gentleman from New York, 

Mr. Nadler, who is the Ranking Member of the Constitution Subcommittee, for the purposes of making an opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. I want to join you in 

welcoming our witnesses today. 

I think we all agree that the Constitution’s protection of property 

rights must be preserved. The Constitution provides for just compensation when Government takes property, but nowhere does it 

spell out exactly what a taking is. That has been left to those 

unelected Federal judges who, just yesterday, we were trying to 

strip of all authority to hear cases involving the Pledge of Allegiance. 

We were told by the sponsors of this legislation that Congress 

has the power to strip the Federal courts of their jurisdiction to 

hear a particular constitutional claim, so long as the State courts 

remained available to hear the claim. What a difference a day 

makes. 

Today, we have legislation that removes the most fundamentally 

local issues—zoning, environmental protection, infrastructure costs, 

development, sprawl—and plucks them out of the States and into 

the arms of those unelected Federal judges we didn’t trust yesterday. It is enough to make your head spin. 

Whatever dangers to the environment this legislation may pose, 

it is green in at least one respect: It is an outstanding example of 

recycling, taking us all back to those memorable days of Newt 

Gingrich’s contract on America. 

Later versions of that effort, which have been called kindler and 

gentler—and gentler, by at least one legal scholar, focused on procedural issues, a euphemism for forum shopping. 

This bill is a little less kind and a little less gentle. It greatly 

expands the definition of a taking. It appears to require the Government to provide compensation in many cases where the Constitution would not. It would allow developers to game the system 

by arbitrarily dividing their lots to squeeze money out of our communities. 

4

Let us remember what is involved in many of these so-called regulatory takings cases. What is involved is the protection of the environment and local planning areas. 

Should we have to pay off someone to keep them from degrading 

our water supply? That seems to be the claim of some developers 

who want to fill in wetlands at will. 

What shall we tell the communities devastated by Hurricane 

Katrina who are bracing for the next hurricane season and need 

remaining wetlands to protect them? Who pays for the damage 

caused by wetlands devastation? Other taxpayers. They are the 

ones who—who will have their taxes raised to build new water purification plants. 

Should we have to pay off people if we want to control sprawl? 

How about if we make them pay for some or all of the costs of the 

new roads, sewers, water lines and schools that will be needed 

when they are done with their development? 

My friends on this Committee have often railed against trial lawyers who engage in forum shopping. Now this Committee appears 

prepared to legislate forum shopping to benefit one particular 

group: real estate developers. 

This legislation provides a new and preferential standard for one 

group asserting its rights under section 1983, real property owners, 

not other property owners, not people who have been denied the 

right to counsel, not the descendents of former slaves, or any of the 

other myriad groups who look to the courts to vindicate their rights 

and for whom section 1983, which deals with depravation of civil 

rights under color of law, was written. 

By all means, we should protect property rights. But we should 

not so distort the process to give some developers virtual immunity 

from legitimate land use and environmental legislation, as I very 

much fear that this bill would do. 

I look forward to the testimony of the witnesses, and I yield back 

the balance of my time. 

Mr. CHABOT. I thank the gentleman. 

And the chair would just note—I am sure it was a slip of the 

tongue—but it was the ‘‘Contract with America,’’ not the ‘‘Contract 

on America.’’

Mr. NADLER. It was most certainly not a slip of the tongue. 

[Laughter.] 

Mr. CHABOT. I stand corrected, as so does the Ranking Member. 

Do any of the other Members of the Committee present wish to 

make an opening statement? 

Okay, we will go right into introducing the distinguished witness 

panel that we have here this afternoon. 

Our first witness is Joseph Trauth. Mr. Trauth is a member of 

the Cincinnati law firm of Keating, Muething and Klekamp, where 

he practices zoning, planning and land use law. Mr. Trauth is a 

graduate of Xavier University and the University of Cincinnati’s 

School of Law. 

Prior to practicing law at his current—excuse me—Mr. Trauth 

served in the U.S. Peace Corps as assistant to the director of economic development in Western Samoa, as assistant to U.S. Congressman W.J. Keating, and as chairman of the Volunteer Lawyers 

5

for the Poor Foundation. He was also listed as Ohio’s ‘‘SuperLawyer’’ in 2004. 

And we welcome you here this afternoon, Mr. Trauth. 

Our second witness is Franklin Kottschade. 

Am I pronouncing that correctly, Mr. Kottschade? Thank you. 

Representing the National Association of Home Builders, a federation of more than 800 State and local associations, whose mission is to enhance the climate for housing in America. 

Five years ago, Mr. Kottschade was named party in a case called 

Kottschade v. City of Rochester that sought to overrule the Supreme 

Court’s Williamson County decision, but the Supreme Court ultimately decided not to hear his case. 

And we welcome you here this afternoon. 

Our third witness is Daniel L. Siegel. Mr. Siegel is the supervising deputy attorney general, in charge of the California attorney 

general’s land law section. He represents various State agencies in 

complex State and Federal land use lawsuits, including many taking factions. 

In this capacity, he has authored amicus curiae briefs on behalf 

of the California attorney general in takings cases such as Brown 

v. Legal Foundation of Washington and San Remo Hotel v. City 

and County of San Francisco. Mr. Siegel is graduate of the New 

York University School of Law. 

And we welcome you here this afternoon, Mr. Siegel. 

Our fourth and final witness is Professor Steven Eagle of George 

Mason Law School. Excuse me. Professor Eagle is an expert in regulatory takings and other aspects of property law, who has appeared before this Subcommittee many times. 

He is the author of a leading property law treatise and many 

other scholarly and popular articles on the subject. He also teaches 

a variety of programs for judges and the practicing bar. Professor 

Eagle received his J.D. from Yale Law School. 

We thank all our witnesses for taking their time out of very busy 

schedules, as we know, to appear before us this afternoon. 

And, Professor Eagle, congratulations, by the way, on a tremendous basketball season this year. We were all watching, and hoping, and praying. Since the University of Cincinnati in my district 

didn’t quite make it this year, we were pulling for you all. And we 

had staff people that were attending almost all your games. So a 

job well done. 

It is the practice of the Committee to swear in all witnesses appearing before us, so if you would all please stand and raise your 

right hands. 

Do you swear that, in the testimony you are about to give, you 

will tell the truth, the whole truth, and nothing but the truth, so 

help you God? 

Thank you. All witnesses have indicated in the affirmative. 

Finally, I would like to just explain to you what we call the 5-

minute rule here. Each of the witnesses will have 5 minutes. And 

each of the Members who are asking questions up here will also 

have 5 minutes. 

We even have a lighting system up there. When you begin speaking, the green light will come on. That will be on for 4 minutes. 

A yellow light will come on after 4 minutes to let you know you 

6

have about a minute to wrap up. And then the red light will come 

on. 

We would appreciate it if you would wrap up within that time, 

if at all possible. I won’t gavel you down immediately, but we are 

keeping pretty close track of time. So if you could stay within that, 

we would very much appreciate that. 

And, Mr. Trauth, you are recognized for 5 minutes. 

TESTIMONY OF JOSEPH TRAUTH, JR., PARTNER, KEATING, 

MUETHING & KLEKAMP, PLL 

Mr. TRAUTH. Thank you, Chairman Chabot, Ranking Member 

Nadler, Members of the Subcommittee. 

My name is Joseph L. Trauth, Jr. I am an attorney with the law 

firm of Keating, Muething & Klekamp in Cincinnati, Ohio, full 

service law firm. I am licensed to practice both in Ohio and Kentucky, and I have specialized during that period in land use law 

and real estate law. 

The primary purpose of H.R. 4772 is to simply and expedite access to the Federal courts for parties injured under the 5th and 

14th amendment of the United States Constitution. The bill is primarily concerned with regulatory takings. 

We often hear about the eminent domain cases, which are very 

high-profile, but every day we have regulatory takings, and I have 

seen it over the past 32-plus years. 

The following details the significant impact the bill would have, 

as well as the reasons its passage is necessary. My testimony focuses primarily on section II and section V of the bill. 

And I would like to say that this is not a developers’ bill; it is 

not a builders’ bill. It is a personal property rights bill, and those 

are the people that I represent every day. These are the personal; 

these are the people who own property personally, farmers, people 

who have held land in their family, people who have put all of their 

money into property. 

Section II of the bill is primarily aimed at granting property owners with Federal takings claims access to the Federal courts system. Currently, an aggrieved party must file suit in State court 

when municipalities or other governmental agencies violates his or 

her 14th amendment or fifth amendment property rights. Even if 

the property owner brings a purely Federal claim, he or she will 

be barred from filing in Federal court. 

The Williamson County case that was talked about early strips 

property owners of protected rights. Williamson County created 

three harmful effects for property owners. 

First, by requiring that fifth amendment takings cases to originate in State court, States have developed different standards interpreting what constitutes a taking and when a taking is unconstitutional. 

The second consequence of Williamson County is that the costs 

associated with litigating a taking claim have dramatically increased. 

And, finally, after San Remo Hotel v. San Francisco was decided 

in 2005, property owners were left with the possibility of never 

being able to bring their takings claims under the fifth amendment 

in a Federal court. 

7

The problem is with different State standards. There is no logical 

reason why the fifth amendment should mean different things depending upon which State you reside in. However, as a result of 

Williamson County, this is exactly what has happened. 

State courts, such as Ohio, have elevated themselves above the 

Supreme Court of the United States in regards to interpreting the 

Federal Constitution. 

The Supreme Court has established a two-part disjunctive test to 

prove unconstitutionality. Does the ordinance substantially advance the legitimate State interests? Or does it deny the owner 

with economically feasible use of his land? 

Unfortunately, in Ohio, back in 1990, Ohio created a conjunctive 

test. You had to prove both, and you had to prove both beyond fair 

debate, which was interpreted under case law as to mean beyond 

a reasonable doubt. 

So to protect your constitutional fifth amendment right in Ohio, 

you have a criminal prosecution standard to meet in order to protect your federally granted fifth amendment property rights. That 

is just wrong; it is inappropriate. 

Kentucky and Indiana, who are in our region, have slightly different standards. Passing H.R. 4772 solves the problem of differing 

State standards. Its passage is necessary for Ohioans to fully enjoy 

their constitutional rights. 

Ohio essentially seceded from the fifth amendment and the 14th 

amendment for 8 years. And they still today require a criminal conviction standard for property owners to prove that his or her Fifth 

and 14th amendment rights have been trampled. Passing of this 

bill will reunite Ohioans with their 5th and 14th amendment 

rights. 

The exhaustion requirement of Williamson County can prohibitively increase litigation costs. I have two stories. One was a case 

that I had in Ohio, where an intersection next to an expressway 

was zoned for single-family housing. We fought it for 8 years in a 

State court before we got to a damage claim, and at that point in 

time my clients had to settle, because it had just gone on too long 

and was too costly. 

The second one is two parties, the township and the developer 

and the property owner, had signed a consent decree and the judge 

refused to sign the consent decree. This case is still going on today 

after 3 years, with no remedy in sight. 

San Remo preclusion is a problem. And as I said, the fifth section 

of the bill, I think, clarifies and defines multiple constitutional 

standards. It does not make a dramatic shift in the law. 

Finally, H.R. 4772 will provide uniformity to fifth amendment 

regulatory takings and eminent domain takings cases and ensure 

property owners rights throughout the United States as being adequately protected by the Federal courts. 

Again, this is not for Fortune 500 companies. This bill is not for 

developers. This is for citizens of the United States who own property and have a right to have that protected in the Federal court, 

and I think this bill will do that. And we urge its passage. 

Thank you. 

[The prepared statement of Mr. Trauth follows:]

8

PREPARED STATEMENT OF JOSEPH L. TRAUGH, JR.


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Mr. CHABOT. Thank you very much. 

Mr. Kottschade, you are recognized for 5 minutes. 

TESTIMONY OF FRANKLIN KOTTSCHADE, PRESIDENT,

NORTH AMERICAN REALTY 

Mr. KOTTSCHADE. Mr. Chairman, before I start, I would like to 

claim personal privilege to introduce my wife. 

Mr. CHABOT. Go right ahead. 

Mr. KOTTSCHADE. My wife, Bonnie, who is—we have been married 39 years. Thank you. 

Mr. CHABOT. We welcome you here, also, Mrs. Kottschade. 

Mr. KOTTSCHADE. Chairman Chabot, Ranking Member Nadler, 

Members of the Subcommittee, my name is Franklin Kottschade. 

I am a builder-developer from Rochester, Minnesota. And I am 

pleased to testify on behalf of the National Association of Home 

Builders in support of H.R. 4772, the ‘‘Private Property Rights Implementation Act.’’

Last year, the House took decisive and swift action in response 

to the United States Supreme Court’s Kelo decision. Unfortunately, 

misuse of eminent domain powers is not the only abuse of the fifth 

amendment protections. 

A more persuasive and subtle abuse of private property rights 

can occur when Government regulates the property as if they condemned it. When Government entities take private property rights 

through excessive regulation and then refuse to pay just compensation, property owners should be able to protect their constitutional 

rights in Federal court, just as has been done with other constitutional rights. 

H.R. 4772 levels the playing field in the regulatory takings context by allowing owners to bring takings claims directly to Federal 

court. I am one of the many litigants who attempted without success to address the violations of my constitutional rights in Federal 

court. 

In 1992, I embarked on a 14-year legal battle. I applied for approval of 104-unit development, consistent with existing zoning regulations. The city said yes, but imposed nine owners conditions 

that rendered the number of townhouses I could build to 26, and 

made the project economically infeasible. 

The city’s conditions would have added $70,000 to each townhouse, a 300-percent increase in an area where the average townhouse market was $125,000. 

Every effort I made to negotiate or appeal the decisions of the 

zoning board and the city common council was flatly denied. After 

9 years of negotiations with the city, I filed suit in Federal court 

in 2001. And 5 years after filing that suit, I still do not—I still 

don’t know if my fifth amendment rights were violated because a 

court has never heard the merits of my case. 

Federal courts refuse to hear my case, ruling that I must first 

defend my constitutional rights in State court, and yet the recent 

Supreme Court decision in San Remo confirms that once a takings 

plaintiff goes to State court, he will be unable to later access the 

Federal courts. 

As a result, property rights claims under the fifth amendment 

bear the unfortunate and unique distinction of never being heard 

20

in Federal court, unlike the protection of other provisions by the 

Bill of Rights. 

Accordingly, various studies show, undertaken by the National 

Association of Home Builders, over the past 15 years, only 19 out 

of 161 taking cases brought to Federal court were considered on its 

merits. Of course, this was before San Remo completely shut the 

door to the Federal court. 

And of 18 Federal appellate cases where the merits were 

reached, it took property owners on an average of 9.1 years to have 

a Federal court reach its final determination. This is wrong. 

Ironically, if my case were involved in building of a church instead of townhouses, I could have gone directly to Federal court, 

because Federal courts will hear the first amendment land use 

cases. Only property owners with fifth amendment claims are denied ever the specter of justice. 

Currently, municipalities and local governments hold all the 

cards. I learned recently of a case that clearly shows the system is 

broken, Koscielski v. City of Minneapolis. The property owner filed 

a claim in State court. Minneapolis had the case removed to Federal court, which the federal—which the Supreme Court rules 

under its ruling in the College of Surgeons. 

Once in Federal court, the city of Minneapolis argued that Mr. 

Koscielski’s takings were not ripe because he had not gone to State 

court. Yet it was the city of Minneapolis that requested the removal to Federal court in the first place. 

And this is not an isolated situation. The exact same thing happened in the Fifth Circuit. 

The Government’s abuse of the system in these cases is egregious. It wastes the court’s time and forces property owners on an 

expensive, wild goose chase through our courts. Congress must restore the balance between Government and property owners by 

passing this important legislation which will put the fifth amendment back on par with the rest of the Bill of Rights. 

Mr. Chairman, Members of the Committee, thank you for the opportunity to testify today. 

[The prepared statement of Mr. Kottschade follows:]

21

PREPARED STATEMENT OF FRANKLIN P. KOTTSCHADE


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Mr. CHABOT. Thank you, Mr. Kottschade. 

And, Mr. Siegel, you are recognized for 5 minutes. 

TESTIMONY OF DANIEL SIEGEL, SUPERVISING DEPUTY ATTORNEY GENERAL, OFFICE OF THE ATTORNEY GENERAL, 

STATE OF CALIFORNIA 

Mr. SIEGEL. Chairman Chabot, Ranking Member Nadler, Members of the Subcommittee, on behalf California Attorney General 

Bill Lockyer, thank you for this opportunity to testify. 

Forty attorneys general, Republicans as well as Democrats, oppose the predecessors to this bill. I would like to review why there 

has been such strong bipartisan opposition to these measures. 

First, they run counter to basic concepts of federalism. Most significantly, this bill would reduce the role of State courts in local 

land use disputes. State courts, however, are the best forum for resolving local disputes. 

As the Supreme Court explained just last year in its San Remo

decision, ‘‘State courts undoubtedly have more experience than 

Federal courts do in resolving the complex factual, technical and 

legal questions related to zoning and land use regulations.’’

Similarly, the newest Supreme Court member, Justice Alito, cautioned in an opinion he authored shortly before joining the Supreme Court that the Federal judiciary should reject procedural 

rules—reject procedural rules—under which it could be, ‘‘cast in 

the role of a zoning board of appeals.’’

This bill, however, would do just that: It would move local land 

use disputes out of the State courts and into the Federal courts, 

making them zoning board of appeals. 

Second, this bill facilitates the intimidation of local governments, 

instead of locally based collaborative—the use of a locally based collaborative process. A key supporter made this clear. 

In 2000, promoting a prior effort to alter these Williamson County requirements, the chief lobbyist for the National Association of 

Home Builders, Jerry Howard, declared that, ‘‘This bill will be a 

hammer to the head of these State and local bureaucracies.’’

He is right, especially when you consider whose head this hammer will be to. This will mainly be to the head of the approximately—excuse me, there are approximately 36,000 cities and 

towns throughout the nation. Ninety percent of them have populations of under 10,000. 

These small towns and cities, with their limited financial resources, will be highly intimidated by the threat of a Federal lawsuit. They will also be intimidated by the bill’s finality provisions, 

which facilitate the filing of premature lawsuits, if local governments try to work out reasonable compromises to often difficult 

land use issues. That is not good policy. 

Finally, this bill runs counter to separation of powers principles. 

The separation of powers defect is particularly stark in the section 

V of—section V of the bill, which is called a clarification. It is a 

new provision that was not in prior bills. 

It seeks to change—this bill seeks to change, for example, the 

test used by the courts in reviewing substantive due process challenges involving property rights disputes. 

133

As Justice Alito explained in an appellate decision he wrote 

shortly before joining the Supreme Court, ‘‘These land use disputes 

are judged under a ’shocks the conscience’ standard, not an arbitrary and capricious standard.’’ That was expressed holding. 

This bill, however, seeks to change the standard to an arbitrary 

and capricious standard that is not permitted under separation of 

powers principles. In City of Boerne v. Flores, the Supreme Court 

expressly held that Congress cannot dictate the standard that 

courts already use in reviewing constitutional challenges; that is 

the rule of the judiciary. A similar separation of powers problem 

permeates the rest of this bill. 

Is the current land use system—land use system perfect? No, of 

course not. With the tens of thousands of decisions being made 

each year, there are sure to be abuses. Most are corrected by the 

State court; moreover, State and local governments are continuously seeking to improve the system. 

This bill, however, is not the solution. It would federalize local 

land use issues. It facilitates the use of intimidation rather than 

a thoughtful, deliberative process. And it runs counter to separation of powers principles. 

On behalf of the California attorney general, I therefore respectfully urge that you reject this bill. 

Thank you. 

[The prepared statement of Mr. Siegel follows:]

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PREPARED STATEMENT OF DANIEL L. SIEGEL


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Mr. CHABOT. Thank you, Mr. Siegel. 

And our final witness here this afternoon will be Professor Eagle. 

Professor Eagle, you are recognized for 5 minutes. 

TESTIMONY OF STEVEN EAGLE, PROFESSOR OF LAW,

GEORGE MASON UNIVERSITY SCHOOL OF LAW 

Mr. EAGLE. Thank you, Mr. Chairman, Representative Nadler, 

and distinguished Members of the Subcommittee. 

My name is Steven Eagle. I am a professor of law at George 

Mason University, in Arlington, Virginia. I testify today in my individual capacity as a teacher of property, land use, and constitutional law. I write extensively on property issues. 

My prepared statement, Mr. Chairman, is somewhat technical. 

In my oral statement, however, I wish to stress principles more 

than technicalities. It is not my general inclination to suggest that 

more laws be passed, and that goes especially for Federal laws. I 

want America to be a nation under the rule of law and not a nation 

under the rule of laws in the plural. 

My own approach is one of subsidiarity, that decisions be made 

at the lowest appropriate level. I neither oppose local government 

nor want to deprive local officials of their legitimate powers. 

To the extent that completing the third edition of a 1,200-page 

treatise on regulatory takings makes me a student of the subject, 

Mr. Chairman, I would be the first to concede that the line separating private property rights and legitimate Government regulations is not always easy to draw. 

But at the same time, Mr. Chairman, we have to struggle with 

real issues. We ought not to create artificial ones for ourselves and 

for the public. 

Mr. Kottschade is a home builder. In a real sense, he represents 

the young families and others who are depending on him for places 

to live. The rest of us on this panel are employed in interpreting 

words. 

It is tempting to use language and to invent and defend unnecessary procedural requirements with the result of discouraging those 

with whom we disagree from seeking justice. We inveterate federalism in the United States, but federalism is inherently messy. 

No one knows what kind of politics, or religion, or personal characteristics might be acceptable to the people of a given community 

like its local officials. However, our Federal Constitution provides 

certain rights to individuals, and those rights sometimes work 

against the grain of what local officials want. This is the heart of 

our Bill of Rights. 

In Dolan v. City of Tigard, the Supreme Court declared, ‘‘We see 

no reason why the takings clause of the fifth amendment, as much 

a part of the Bill of Rights as the first amendment or the fourth 

amendment, should be relegated to the status of a poor relation.’’

The fact that State courts might be more aware of local preferences doesn’t prevent plaintiffs from bringing other kinds of 

claims involving the Bill of Rights to Federal courts, and that 

should be the case here, as well. 

Likewise, in a bond covenant case, United States Trust Company 

of New York v. New Jersey, the Supreme Court warned us that 

more judicial oversight is required when the State’s self-interest is 

165

at stake. In the regulation of real property, the financial interests 

of municipalities might well depend on keeping out uses that result 

in the expenditure of tax revenues, such as the creation of residences that will house school pupils. 

I support H.R. 4772, Mr. Chairman, because I think it will remove artificial impediments to individual property owners, vindicating their rights not to have their property taken without just 

compensation. 

My friend, Daniel Siegel, is concerned that H.R. 4772 would provide a hostile process involving land owners and local government, 

as opposed to a thoughtful and balanced process he thinks exists 

now. 

I would suggest, with respect, that salaried planning staffs and 

city attorneys are better able to use delay to advantage than home 

builders and land owners, who must pay property taxes, mortgage 

interests, and their own litigation fees. 

Under the final decision prong of Williamson County, localities 

have yet an additional incentive to avoid giving permanent applicants a straightforward response. If they are going to have to wait 

for a truly final decision, as Mr. Siegel indicates, they have a long 

time to wait. 

The Williamson County State compensation prong is one that 

many courts have mentioned. Yet, in the case of Lingle v. Chevron,

we saw that a phrase, long repeated by the Supreme Court, when 

first subject to re-analysis fell by the wayside. 

Likewise, Mr. Chairman, I think that, in this case, we will find 

that, when the Supreme Court finally does get down to examining 

Williamson County, it will decide that the State compensation 

prong is not necessary as a constitutional standard and makes little sense as a prudential standard. 

I hope, Mr. Chairman, that the Subcommittee understands that, 

if it and the Congress express the intent of having the process one 

where it is easier for individuals to vindicate their rights, that the 

Supreme Court probably will accept many of those provisions. And 

if it does not, Mr. Chairman, that is something that will have to 

be dealt with in the normal course of legislation and judicial adjudication. 

But most of the issues we are talking about are not written in 

stone, and for the Supreme Court to have the benefit of a clear expression of congressional intent and a congressional statute would 

be very salutary. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Eagle follows:]

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PREPARED STATEMENT OF STEVEN J. EAGLE


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Mr. CHABOT. Thank you, Professor Eagle. 

Members of the Committee will now have 5 minutes each to ask 

questions. And the Chair will recognize himself for 5 minutes for 

that person—that purpose. 

And, Mr. Trauth, I will begin with you. 

Can you describe what it takes under current law for a citizen 

to get into Federal court with a Federal free speech or religious discrimination claim and contrast that to what it takes for someone 

to get into court with a Federal property rights claim? 

Mr. TRAUTH. Yes. Mr. Chairman, today, for a free speech or religious discrimination claim, a person under the U.S. Constitution 

has direct Federal access to Federal courts. Under a taking claim, 

property rights claim, you have no access under the case law of 

San Reno in 2005. 

Mr. CHABOT. We are talking about Federal rights under both 

issues, in essence, both? 

Mr. TRAUTH. What is that? 

Mr. CHABOT. I say that we are talking about a right that one 

would think one would have under the Constitution in both instances? 

Mr. TRAUTH. Yes, right. I mean, to be denied access to Federal 

court on a constitutional claim is ridiculous. When, you know, this 

is as sacrosanct as any other Federal right under the Constitution—even more so. I mean, our country was founded on private 

property rights. 

And, you know, not to be able to address that in Federal court, 

I think, is absurd. 

Mr. CHABOT. Thank you. 

Mr. Kottschade, I will go with you next, if I can. What has happened to your land since the Supreme Court denied your cert petition? 

Mr. KOTTSCHADE. Mr. Chairman, in March of 2003, the State of 

Minnesota Department of Transportation commenced condemnation proceedings against it. Now, this is very significant, and I just 

heard the testimony that the State and local governments are 

working to improve the system. I am not sure I can afford that. 

The reason I say that tongue-in-cheek is real simple: The city of 

Rochester attached conditions onto my property which devalued it. 

Now, the State of Minnesota has come in and is clipping the coupons. They have offered me, at this point, 10 cents on a dollar. 

When I challenged them on that, ‘‘Why are they doing that?’’ 

They said, ‘‘Well, you can’t get the permits anyway.’’

So there is a collaboration between local and State government, 

as was testified. I am not sure that, as a citizen of this community, 

of this nation, that I can afford that. 

Mr. CHABOT. Thank you. 

Let’s see, Mr. Siegel, if I could go to you next. In one case in Minnesota, a property owner filed his Federal takings lawsuit in State 

court first, as he was required to do so by the Supreme Court’s 

Williamson County case. Then the city removed the case to Federal 

court, as they are allowed to do under the Supreme Court’s College 

of Surgeons case. 

Then, the Federal court dismissed the property owner’s case because the property owner hadn’t litigated his case in State court 

183

first, even though that is exactly what the property owner was 

doing when the city removed the case to Federal court. 

Can you give me any example from any other area of law that 

results in such a hopelessly unfair Catch-22 for the average citizen? 

Mr. SIEGEL. Well, I have not read that case, the Minnesota case. 

But I what I believe happened, from my—reading the testimony of 

my co-witness here—is that, under the removal statutes, any party 

to a State action who believes that an action should have been filed 

in Federal court can remove the case into Federal court, which is 

like filing a complaint, a new lawsuit in Federal court. 

The court then looks at that new lawsuit and says, ‘‘Should this 

really be here in Federal court or not?’’ And it sounds like, in that 

case, in should never have been in the Federal court in the first 

place, so that Federal court put the court—the case back where it 

belonged, in State court, because there never had been an exhaustion of State court requirements, which is required under 

Williamson County. So it is just the way that the removal statutes work. And, you 

know, the Committee may want to look at the removal statutes, 

but that is how they operate. 

Mr. CHABOT. Mr. Kottschade? 

Mr. KOTTSCHADE. Mr. Chairman, for the record, the Federal—or 

the State moved to take that into Federal court under the College 

of Surgeons v. Chicago case, where the State can take court cases 

into Federal court, but I as a property owner am denied that right. 

And I guess the question is: Why isn’t a level playing field, that 

if the city can petition a takings case into Federal court, why can’t 

I, as an individual, go to State—or go into Federal court? 

Mr. CHABOT. In the little time that I have left, if I can go to you, 

Professor Eagle. Practically speaking, under current rules, can the 

average person expect to be able to litigate their Federal property 

rights claims up to and through the Federal court system today? 

And what financial and time barriers await such people who try to 

do so? 

Mr. EAGLE. No, Mr. Chairman, they cannot. If they file an as applied case, that is, that the regulation is unconstitutional, given 

their specific situation, it can take them up to a decade and several 

hundred thousand dollars of expenses to ripen their case for Federal court. 

And then, of course, under San Remo, they will be precluded 

from having the substance heard anyway. So that is absolutely a 

dead end. 

On the other hand, Mr. Chairman, there could be a facial challenge, saying that the regulation, under all circumstances, never 

conceivable can be constitutional, but, of course, that is impossible 

to win, so they lose right off. Either way, they have no chance. 

Mr. CHABOT. Thank you. My time has expired. 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes. 

Mr. NADLER. Thank you. 

Mr. Siegel, the bill makes certain changes to the ripeness doctrine. To what extent do you think that these changes to ripeness 

and other standards in section V, of the takings standard in section 

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V, present constitutional issues we have to deal with, not just statutory issues? 

Mr. SIEGEL. They very definitely present constitutional issues. 

And it is most stark in section V. 

For example, I gave one example concerning changing the standard of review and substantive due process cases, where in essence 

what this bill does is it directs the judiciary to change the law, 

change the judiciary’s interpretation of the Constitution. 

Another example is in the so-called partial as a whole provision. 

That is in subsection two of section V. And what this bill does is 

it says that if a property owner owns, say, 100 lots, and if one of 

those lots cannot be developed because it has a wetland, but the 

other 99 can, the court is directed to only look at that single lot 

that cannot be developed. 

That is not current law. As explained in District Intown and 

many other cases, the courts look at what is—whether or not a 

property holding is a unified holding or not, and that is the test 

that is used. 

This directs the courts to change their interpretation of the Constitution, and that is, on the separation of powers principles, there 

is—Congress does not have that authority. 

Mr. NADLER. Do you think this provision will be ineffective as 

passed? 

Mr. SIEGEL. Well, it will not only be ineffective, but it will—rather than helping developers, to the extent that developers rely on 

these provisions it is going to delay rather than speed up their lawsuits, because there is going to be litigation over this bill and 

whether or not it is valid. 

So there is going to be more confusion and more delay, rather 

than what its supporters are hoping for, which is to try to speed 

things up. 

Mr. NADLER. Okay, one more question, Mr. Siegel, before I go 

onto others. We have considered several bills over the years that 

are similar to this one. How is this one different? I am sure you 

are familiar with the other takings bills we have considered in the 

last few years. 

And should Members who voted for the other bills have any concerns that this contradicts those? 

Mr. SIEGEL. They should be very concerned about section V. Section V never appeared in any of the prior bills. It is described as 

a ‘‘clarification’’ of constitutional law, but what it is doing is attempting to make constitutional law, and that has never been done 

before in any of the prior bills. 

Mr. NADLER. Thank you. 

Mr. Kottschade, are there jurisdictions where a developer would 

fare better in State court than in Federal court? Would this legislation give the developer the choice of forum? 

Mr. KOTTSCHADE. Congressman, that is a great question. The 

short answer is: I do not want to go to court, period. I want to be 

able to develop. I want to be able to pull projects together. I—

but——

Mr. NADLER. Yes, but this—excuse me, but this bill—if you don’t 

want to go to court, this bill doesn’t affect it. 

185

The question is, if this—if you have to go to court, you feel you 

have to go to court, does this bill give you a choice of forums? 

Mr. KOTTSCHADE. What, Congressman, this bill would give me a 

right to go to court, Federal court, as I testified earlier. I don’t believe today, based upon a decision in Minnesota, that I have—can 

go to State court, because, if I do, I am going to get bounced into 

Federal court and I am going to get bounced out. 

So I think, after the—after the Koscielski v. Minneapolis, this is 

very important that we have this. 

Mr. NADLER. May I ask Professor Eagle the same question? 

Mr. SIEGEL. If I could——

Mr. NADLER. Mr. Siegel, go ahead? Whoever is most eager to answer. 

Mr. SIEGEL. We could change our names. 

Mr. NADLER. Whoever is the most eager to answer. [Laughter.] 

Mr. SIEGEL. Well, I would like to just quickly answer, which is 

that the removal statutes involve a very quick process. So if there 

is a concern, I think, if one has a good case, they should bring it 

in State court. 

I am surprised. My understanding is that Mr. Kottschade never 

brought his case, even after the—being thrown out of Federal 

court, never brought his case in State court, which is surprising, 

because that is——

Mr. NADLER. Why should he bring it into State court, as opposed 

to Federal court, if he can do it in either? 

Mr. SIEGEL. Well, he can bring his case to State court. What he 

is saying is that he would be removed to Federal court under a removal—he—under a removal statute, which is——

Mr. NADLER. Yes, but are there cases where you would be advantaged in bringing it in Federal court, as opposed to State court, and 

vice versa? 

Mr. SIEGEL. I don’t think so. 

Mr. NADLER. Okay. 

Professor Eagle? 

Mr. EAGLE. If I may answer that, Mr. Chairman, if you look at 

City of Chicago v. International College of Surgeons itself, I think 

it is no accident that the International College of Surgeons wanted 

this matter heard in State court. The Illinois courts have a tradition of taking property rights more seriously than the courts of 

some other States. 

But there is nothing incongruous about this, Mr. Nadler, because 

when a plaintiff chooses to bring an action, the plaintiff almost always has the right to pick the cause of action and to bring that 

case in the applicable court. So this is the same treatment that the 

International College of Surgeons wanted that any other plaintiff 

would get. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Arizona, Mr. Franks, is recognized for 5 

minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Professor Eagle, I would like to ask you first, you know, some of 

the critics of the legislation, H.R. 4772, have somehow said that 

this would federalize local disputes. But isn’t it true that Federal 

186

constitutional property rights and the procedural rules that ultimately govern them is truly a Federal issue? 

Mr. EAGLE. Well, as I said earlier, Mr. Franks, I think that the 

Bill of Rights of the Constitution does understand that individuals 

have certain rights. 

One of those rights is the right not to be deprived of property 

without just compensation, and this should be treated in the same 

fashion as other rights within the Bill of Rights. And, thus, I think 

it certainly is amenable to hearing in Federal court. 

Mr. FRANKS. Thank you. 

Well, Mr. Chairman, I might then just take, based on that, take 

a moment to respond to something that was said earlier, that 

somehow a day had changed a great deal of this Committee’s focus. 

The central premise of the United States Constitution and its 

declaration is that governments are instituted among men to protect their basic, God-given rights. And among those are life, liberty 

and property, in the Constitution and in life, liberty and the pursuit of happiness in the declaration. 

And it occurs to me that the right of property, as outlined in the 

Constitution, is a very basic, foundational, constitutional right. 

And far from moving from our concept of yesterday, when we in 

this Committee, in the full Committee, we were doing what we 

could to tell courts that they had failed in protecting the rights of 

freedom, freedom of religion, in telling people that they could not 

say the words ‘‘under God’’ in the Pledge of Allegiance, we were, 

at that time, trying to protect a basic constitutional right: life, liberty and property being the first three of those. 

And here again today, the reason that we are putting this in the 

courts, wanting to put this into the Federal courts, is simply because people like Mr. Kottschade and others are unable to get a 

clear hearing on the Federal issue of property rights. 

And far from holding the courts to be the—the Supreme Court 

from being the ultimate arbiter, if, indeed, the Supreme Court is 

the ultimate arbiter of all of those issues and the Constitution is 

not, then I ask myself: Why are we here? Why don’t we just close 

the doors, and go home, and let the courts do it all, if they are the 

ultimate arbiter? 

The truth is, as Members of Congress, we are given a great 

charge to protect those basic, federal, Constitution rights; among 

those are life, liberty and property. 

And I think that is what we are trying to do here, Mr. Chairman. 

Thank you. 

Mr. CHABOT. Thank you very much. Does the gentleman yield 

back? 

Mr. FRANKS. I yield back. 

Mr. CHABOT. Okay. The gentleman’s time is expired. 

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, I think the last comment from the gentleman 

from Arizona shows how complicated some of these things are, but 

it can be boiled down to the idea that, if we agree with what the 

courts are going to do, we want them to hear the case as quickly 

187

as possible. If we don’t think we are going to agree with what the 

courts are going to do, we don’t want them to hear it at all. 

So, Mr. Siegel, there is a concept of exhausting administrative 

remedies. At some point, you want the case to remain through the 

normal steps of administrative procedure, that is the little zoning 

board, the city council, and wherever else you have to agree to it. 

When is it appropriate for the case to be ripe for a Federal review 

of a Federal constitutional right? 

Mr. SIEGEL. Well, the courts have explained, most recently in the 

Pallazzolo decision, that, when the permissible uses of property are 

known to a reasonable degree of certainty, then the case is ripe. 

The courts want to know what uses of property are permitted, so 

it can decide whether or not there has been such an economic impact on the property, that is, as the court recently explained, so onerous as to amount to a direct appropriation. 

But to make that determination, is this imposition so onerous 

you have to know what local government is doing? And there needs 

to be a reasonable degree of certainty, according to the courts. 

Mr. SCOTT. Well, the way it is working now in practice is you 

never get there. 

Mr. SIEGEL. Oh, certainly cases get there all the time. I mean—

and people complain sometimes about the California—California 

courts——

Mr. SCOTT. No, because, if you stuck—you never get to a Federal 

court review—let me back up. You think there ought to be somewhere in the process a Federal review of a Federal constitutional 

right? 

Mr. SIEGEL. Oh, I am sorry, no, I misspoke if I implied that. The 

court has been clear, going back to Allen v. McCurry, a case decided, I believe, in 1981, that there is no right to have a 1983 action heard in Federal court. 

If there is a meaningful opportunity to be heard in a State court 

and one has been given that opportunity, that can bar, through collateral estoppel, the right to a Federal hearing and access to a Federal court. 

That was not a property rights case. It was not a—it was a 

search and seizure case. In San Remo, the court explained that the 

same principle applies in that search and seizure case to a property 

rights case, so there is not an absolute right to go to Federal court. 

Mr. SCOTT. So, in those cases, there would never be a Federal—

following that line of thinking, there can in some cases be no Federal review of a Federal constitutional right? 

Mr. SIEGEL. There can’t—there would be Federal review, but not 

by a Federal district court or court of appeal. There could be Federal review by the United States Supreme Court, because the—

once a State court has reached its decision, if it involves the interpretation of Federal law or Federal Constitution, there is the right 

to petition for certiorari to the United States Supreme Court. 

And, in fact, many of the takings case that, you know, takings 

litigants at least know about are just such cases. The first English

case, the Nolan case, the Pallazzolo case are all cases that came 

out of the State court systems. Property owners said, ‘‘Wait a second; we disagree with the way the State courts are interpreting the 

Constitution.’’

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The United States Supreme Court stepped in to decide whether 

or not the State courts were interpreting the Constitution properly 

or not. 

Mr. SCOTT. And if the State is hanging things up so that it takes, 

as has been pointed out, an average of over 9 years to get there, 

does that seem like a reasonable length of time to get—finally get 

a Federal review of a Federal right? 

Mr. SIEGEL. Nine years, I think, is a long time for any case to 

proceed. That is a reality, in some situations, in some courts, not 

just in takings law, but in any law. 

There has been no comparison that I have seen of how long it 

takes for a takings case, which—a ripe takings case to go from 

being filed to being to an ultimate decision versus other cases. I 

don’t think there is any difference between how any—you know, in 

terms of the length of time it takes for any case to be litigated. 

As you say, in my State——

Mr. SCOTT. Let me—I don’t mean to cut you off, but my time is 

just about up, and I wanted to ask another question on section V 

in the bill, which kind of redefines deals with takings, what is the 

present law? And how does that section change present law? 

Mr. SIEGEL. Present law is that as—one of the takings provisions 

under this bill says that, in analyzing a parcel in a subdivision, 

say, with a hundred different lots, you, under this bill, only look 

at the particular lot that is being regulated, while current law says 

that you look at the parcel as a whole. 

Mr. SCOTT. You mean——

Mr. SIEGEL. You look at if all the lots are part of the same development, they were purchased at the same time, they were part of 

the same scheme, then the courts have been treating those in cases 

such as Tab Lakes and District—I am sorry, I am forgetting the 

name of the case now—as a single unit, rather than this discrete 

little unit. 

Mr. SCOTT. Is that the only change by section V? 

Mr. SIEGEL. No, no. There is an attempt to change the Nolan/

Dolan standards, to extend what is—as Professor Eagle pointed 

out—at least strongly, implicitly current law, that those cases, for 

example, do not apply to fee impositions. And this bill attempts to 

apply them to fee impositions. 

It also attempts to change the rule articulated in Dolan that legislative decisions are given deference, and this bill attempts to take 

away that deference. So those are two changes of existing constitutional law, as interpreted by the United States Supreme Court. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Well, Professor Eagle, with respect to the deference—if I understood Mr. Siegel’s last comment—what we really 

do in section V is to clarify the standard. The Supreme Court has 

never used ‘‘shock the conscience’’ as a test in a property takings 

case; it is usually police work. 

What we go back to is an arbitrary and capricious standard, is 

that right? 

189

Mr. EAGLE. Yes, sir. And if I may, let me just make a much more 

general comment about this notion that this bill would go against 

existing law. 

There was a very insightful colloquy in the oral argument in San 

Remo—which I had the privilege of attending—where the attorney 

for the city said that the court had never considered the interaction 

of issues of preclusion and the Williamson County doctrine. 

And Justice O’Connor said, ‘‘Well, it is clear we didn’t, so now we 

are faced with the consequences of that. And it looks to me like the 

lower courts have run pretty far with Williamson County.’’

And that is exactly what has happened. There are decisions in 

some of the lower courts that reached the results that Mr. Siegel 

has indicated, but the Supreme Court’s view of these has not yet 

been definitively determined. And I certainly don’t think, apart 

from what the Chair has, in my view correctly, pointed out to be 

this Committee’s independent duty and Mr. Franks has pointed out 

to be this Committee’s independent duty to look at the Constitution. 

The fact of the matter is that the Supreme Court itself has not 

really definitely ruled in the Constitution on these issues. And even 

in the International College of Surgeons case, the Chicago case, we 

are talking about how that interacts with the decision of the court 

in Williamson County. 

And the point is: The court didn’t consider it; the court didn’t 

even mention Williamson County. 

Mr. FEENEY. We address a lot of unaddressed issues, at least 

from the Supreme Court. I actually have a parochial interest here, 

and I want to make sure that my understanding is correct. 

In Florida, for—we have different guaranteed constitutional 

rights if property is taken by the State or a subdivision thereof, a 

country or a city, for example, attorney’s fees on top of fair market 

value. There is actually—you know, by and large, property owners 

would rather be condemned by the State than by the feds, for that 

reason. 

My question is, supposing a property owner condemned by a 

State or a subdivision thereof opted—wanted to opt for a Federal 

court under this law, once it was passed in Florida, the Federal 

court, as I understand it, would be applying State law in the remedy stage, including attorney’s fees. Does everybody agree with 

that? 

Mr. EAGLE. Well, I think the question would be what body of 

law—what right that the plaintiff is seeking to have vindicated in 

court. 

Mr. FEENEY. Well, assuming that—okay, I have put the bunny 

in the hat, as my professors used to say. Assuming that the property owner can establish a regulatory takings under the fifth 

amendment in a Federal court by a State subdivision, would the 

property owner then be eligible for attorney’s fees? 

Mr. Siegel, do you have an opinion on that? 

Mr. SIEGEL. I do not believe, if it was based upon Federal law, 

unless——

Mr. FEENEY. Supposing the statute—supposing the State statute 

of Florida said that, if a State subdivision takes your property, you 

190

are entitled to attorney’s fees? In that case, at the remedy stage, 

wouldn’t they get—avail themselves as the property owner of——

Mr. SIEGEL. In State court, they would. What I am struggling 

with and I have don’t have the answer to is, if the Federal court—

if the property owner seeks to have a State compensation claim 

also brought into Federal court and have the Federal court decide 

that, and if the Federal court decides to accept that claim under 

pendant jurisdiction——

Mr. FEENEY. Well——

Mr. SIEGEL [continuing]. Then it might——

Mr. FEENEY [continuing]. I would like to put that question in 

writing. Basically, the question is, supposing there is a regulatory 

taking, a rezoning issue, for example, by a State subdivision, but 

I, as a property owner, I decide to go to Federal court. 

And so I will put that in writing. Maybe we can all do collectively 

some research about how this would impact the rights of Florida 

property owners, which is preeminent in my mind on occasion. 

Mr. Siegel, I was interested in the question about a property 

owner—whether 9 or 10 years is a reasonable length of time to 

wait for all—to all your State remedies and processes to expire before you eventually get to a Federal court on an important Federal 

principle. 

And aside from the fairness of that, how about the mere fact 

that, you know, if I acquire property when I am 50 and have a life 

expectancy of 70, the 10 years that I am tied up—I can’t use my 

property while I am having courts decide what my rights are—

hasn’t half the value to me effectively been taken, merely because 

the Government has an endless amount of resources? They are taxing me to pay to promote their position, and I have to pay out of 

my pocket during that 10-year period. 

Do you have sort of a moral problem with the fact that there is 

an imbalance between the resources, typically, between a private 

property owner and the Government? 

Mr. SIEGEL. Well, let me answer the delay question from the 

point of view of my State. Delay in having justice issued is a problem in property rights cases and in any other kind of case. It is a 

very serious problem. 

In California, we therefore have the Trial Court Delay Reduction 

Act, which forces trial courts to move cases along. We also have—

quickly, and it has that time limit in which cases need to be 

brought to trial. 

We also have strict limits on the amount of time an appellate 

court can take to issue a decision and the California Supreme 

Court. So that delay is a problem for property owner and for any 

other litigant, and it is something that has been addressed in our 

State and should be addressed. 

It should be—what we are saying, though, is the whole system 

of reviewing these property rights disputes should not be federalized. It should be addressed in the Florida courts, and in the California courts, and in any other State courts. And the States have 

been and should continue to work on making their systems fair and 

efficient. 

And, yes, it is a very serious problem to have a 9-year delay for 

a litigant. 

191

Mr. CHABOT. The gentleman’s time has expired. 

Mr. FEENEY. Could I ask unanimous consent just to follow up on 

that point? 

Mr. CHABOT. Yes. I think Mr. Kottschade would like to answer 

the question, as well. 

Mr. FEENEY. Well, wonderful. And if—but with the—with the patience of my colleagues, on that point, Mr. Siegel, you said it is a 

very serious problem. 

If States aren’t as efficient in California at resolving issues, do 

you think that the mere length of time that it takes to go through 

the State process and resolve all of your—expedite or go through 

all of your procedural rights, before you ever get to Federal court, 

you think, in and of itself—and I would like to hear Professor Eagle’s and perhaps Mr. Trauth’s opinion on—could that be a fifth 

amendment problem? 

Mr. SIEGEL. Well, these aren’t just——

Mr. FEENEY. If a State is not as efficient as California and if it 

is taking 10 or 15 years before I could actually figure out what I 

can do with Black Acre, in and of itself, is the length of time a 

fifth—does that implicate the fifth amendment, potentially? 

Mr. SIEGEL. Let me just make one point before answering that, 

which is that, when one goes to State court, they are not just going 

to State court to bring procedural, technical challenges. They are 

going to State court to bring their claim for just compensation, because the takings clause prohibits the taking of property without 

just compensation. 

And what is being litigated is not some technicality. It is as I am 

as—am I entitled to just compensation? And the Florida court or 

the California court is saying either, ‘‘Yes, your property was 

taken; you were denied compensation; you have the right to 

money,’’ or the court will say, ‘‘No, this was not a taking; you are 

not entitled to just compensation.’’

Mr. CHABOT. The gentleman’s time has once again expired, but 

the other witnesses were asked to respond. 

And, Mr. Kottschade, if you would like to—Professor Eagle, did 

you want to respond to anything on that? 

And Mr. Trauth? 

Okay, and then Mr. Kottschade? I don’t care which order you go. 

Mr. KOTTSCHADE. Congressman, I really appreciate your question, in terms of 9 years, 10 years, but I want you to remember 

that I am 14 years into this. And, by the way, another couple of 

years and this is going to be old enough to vote; that is how long 

it has been going on. 

And I don’t—I honestly don’t know when the end is near. And 

that frightens me, because, you know, when I started this project, 

purchased this land, I was 50—I was 50 years old. Tomorrow, I will 

become 65. 

Does this mean—and my wife keeps asking me when, when, 

when? And, you know, I can’t honestly answer here. Will this be 

another 10 or 15 years? There has got to be an end to it, and so 

your question is a great question. Thank you for asking it. 

Mr. TRAUTH. Yes, Congressman Feeney. I think the problem is 

an equal protection problem, to a certain extent, because, why 

192

should one constitutional right be treated differently than another 

constitutional right? 

And, in the one, like a first amendment issue or a religious freedom issue, you are entitled to go directly to Federal court, but here, 

where you have go a property right, you know, which a fairly substantial right under the U.S. Constitution 5th and 14th amendment, you can’t go to Federal court. 

And the reason that I want to be able to have the option to go 

to Federal court with a property owner is that Federal courts are 

usually more efficient in handling these cases than our State 

courts. I mean, I have seen it over, and over, and over again in 

State courts, where you get lost in the black hole, literally, and you 

never get out. 

And that is what happened with Mr. Kottschade. 

The other issue deals with costs. It is not going to cost the Government—governmental entities any more. Most of them actually 

have insurance. So the property owner is fighting the governmental 

entity who is insured with their own fund; so, the balance is clearly 

unequal. And, therefore, access to Federal court is a must. 

And, again, I get back to the fact that this is not a developer 

issue. It is not a home builder issue. It is a personal property 

rights issue. 

Mr. CHABOT. And Professor Eagle, this will be our last response. 

Mr. EAGLE. Yes. I think, Mr. Feeney, that the answer to the 

question is that the delay is not the delay in a given court proceeding, as much as the fact that the needless complexities and 

technicalities we have causes remands, re-hearings by appellate 

courts, other remands. 

And you also have the fact that administrative agencies take a 

long time to process situations and also may gratuitously and 

wrongfully bring actions, such as has happened in California, 

where an agency tries to assume jurisdiction when it doesn’t have 

the basis to do so. 

That could be litigated for 2 or 3 years until it finally gets back 

to the agency it is supposed to be—that is supposed to have jurisdiction over the matter. And this is simply attributed to a normal 

administrative delay. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

Mr. Nadler is recognized to make a point? 

Mr. NADLER. Thank you. I just wanted to be observed, and then 

I am going to make a unanimous consent request. 

As we have discussed these issues, we are all conscience of the 

fact of how we lucky we are that we never have similar delays in 

the Federal courts. 

Mr. Chairman, I ask unanimous consent to place the following 

letters in opposition, one from the United States Conference of 

Mayors, one from the National League of Cities, and one from 

former Mayor Giuliani of New York City in opposition to this legislation into the record. 

Mr. CHABOT. Without objection, so ordered. 

Mr. NADLER. Thank you. And I also ask unanimous consent that 

all Members have 5 legislative days to revise and extend their remarks and to include additional materials in the record. 

Mr. CHABOT. Without objection, so also ordered. 

193

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. CHABOT. Okay. The gentleman’s time has expired. 

I want to thank the panel very much for their testimony this 

afternoon. It was really excellent. And I think you gave us an opportunity to consider this from many different angles. 

And the Committee will further consider this in the near future 

and, in that consideration, your contribution will be a big part of 

that. So thank you for doing that. 

If there is no further business to come before the Committee, we 

are adjourned. Thank you. 

[Whereupon, at 3:15 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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RESPONSE TO POST-HEARING QUESTIONS FROM JOSEPH L. TRAUTH, JR., PARTNER, 

KEATING, MUETHING & KLEKAMP, PLL


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RESPONSE TO POST-HEARING QUESTIONS FROM FRANKLIN KOTTSCHADE, PRESIDENT, 

NORTH AMERICAN REALTY


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RESPONSE TO POST-HEARING QUESTIONS FROM DANIEL L. SIEGEL, SUPERVISING DEPUTY ATTORNEY GENERAL, OFFICE OF THE ATTORNEY GENERAL, STATE OF CALIFORNIA


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RESPONSE TO POST-HEARING QUESTIONS FROM PROFESSOR STEVEN J. EAGLE, 

PROFESSOR OF LAW, GEORGE MASON UNIVERSITY SCHOOL OF LAW


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LETTER FROM JOSEPH M. STANTON, NATIONAL ASSOCIATION OF HOMEBUILDERS TO

THE HONORABLE JIM SENSENBRENNER, DATED MARCH 1, 2006


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LETTER FROM R. BRUCE JOSTEN, EXECUTIVE VICE PRESIDENT, GOVERNMENT AFFAIRS, 

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, TO THE MEMBERS

OF THE U.S. HOUSE OF REPRESENTATIVES, DATED MARCH 8, 2006


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LETTER FROM BOB STALLMAN, PRESIDENT, AMERICAN FARM BUREAU FEDERATION, TO

THE HONORABLE STEVE CHABOT, DATED APRIL 12, 2006


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LETTER FROM DAN DANNER, EXECUTIVE VICE PRESIDENT, NATIONAL FEDERATION OF

INDEPENDENT BUSINESS, TO THE HONORABLE STEVE CHABOT, DATED MAY 15, 2006


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LETTER FROM TERRY L. ADKINS, CITY ATTORNEY, CITY OF ROCHESTER, MINNESOTA

TO THE HONORABLE STEVE CHABOT AND THE HONORABLE JERROLD NADLER, DATED

JUNE 9, 2006


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LETTER FROM RUDOLPH W. GIULIANI, MAYOR, CITY OF NEW YORK TO THE

HONORABLE PATRICK J. LEAHY, DATED OCTOBER 28, 1997


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LETTER FROM THE UNITED STATES CONFERENCE OF MAYORS TO THE HONORABLE

ARLEN SPECTER AND THE HONORABLE PATRICK LEAHY, DATED JUNE 6, 2006


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LETTER FROM THE NATIONAL LEAGUE OF CITIES, U.S. CONFERENCE OF MAYORS, NATIONAL ASSOCIATION OF COUNTIES, NATIONAL CONFERENCE OF STATE LEGISLATURES, COUNCIL OF STATE GOVERNMENTS AND THE INTERNATIONAL CITY MANAGEMENT ASSOCIATION TO THE HONORABLE STEVE CHABOT AND THE HONORABLE

JERROLD NADLER, DATED JUNE 8, 2006


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LETTER FROM W. PAUL FARMER, EXECUTIVE DIRECTOR AND CEO, AMERICAN PLANNING ASSOCIATION TO THE HONORABLE STEVE CHABOT AND THE HONORABLE

JERROLD NADLER, DATED JUNE 11, 2006


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LETTER FROM TIMOTHY J. DOWLING, CHIEF COUNSEL, COMMUNITY RIGHTS COUNSEL, 

TO THE HONORABLE STEVE CHABOT AND THE HONORABLE JERROLD NADLER, DATED

JUNE 14, 2006


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