II

104TH CONGRESS

2D SESSION S. 2070

To ensure that homeowners receive adequate notice of and opportunity to

comment on activities likely to adversely affect the value of their homes;

and to create procedures for homeowners to receive financial compensation for development which produces pollution and other impacts adversely affecting the value of their homes.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 12, 1996

Mr. WYDEN (for himself and Mr. WARNER) introduced the following bill;

which was read twice and referred to the Committee on Governmental Affairs

A BILL

To ensure that homeowners receive adequate notice of and

opportunity to comment on activities likely to adversely

affect the value of their homes; and to create procedures

for homeowners to receive financial compensation for development which produces pollution and other impacts

adversely affecting the value of their homes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Homeowners

5 Empowerment and Protection Act of 1996’’.
2

•S 2070 IS

1 SEC. 2. FINDINGS.

2 The Congress finds and declares that—

3 (1) there are 65,000,000 homeowners in the

4 United States, representing approximately two-thirds

5 of all households, who have a strong and justified in6 terest in preserving and enhancing the value of their

7 property;

8 (2) the value of a homeowner’s home is based

9 in large part on the location of the property relative

10 to other features of the built and natural environ11 ment, and the increase or decrease in the value of

12 a home over time is inextricably linked to changes

13 in the quality of the neighborhood and environment

14 in which the home is located, including—

15 (A) the quality of the water for drinking,

16 fishing, and swimming;

17 (B) the clarity and healthfulness of the air;

18 (C) the risk of flooding;

19 (D) the scenic beauty of the community;

20 (E) the presence or absence of offensive

21 odors and excessive noise;

22 (F) the health and abundance of wildlife

23 resources; and

24 (G) other factors;

25 (3) the value of homes in the United States is

26 frequently reduced, and sometimes destroyed, by cer-
3

•S 2070 IS

1 tain types of land development, industrial activity,

2 and other actions that occur on neighboring prop3 erties or at other locations, including sites upwind,

4 upstream, or upslope from private homes;

5 (4) protecting private homeowners from the ad6 verse affects of irresponsible actions of certain enti7 ties and individuals which cause injury to home8 owners’ property values is important not only to

9 homeowners but also to their communities and soci10 ety as a whole; and

11 (5) current public information and participation

12 procedures are often insufficient to provide individ13 ual homeowners with notice of activities and the op14 portunity to effectively participate in decisionmaking

15 procedures that have the potential to significantly

16 affect the value of their homes.

17 SEC. 3. HOMEOWNER RIGHT OF ACCESS TO INFORMATION

18 ABOUT ACTIVITIES THAT COULD REDUCE

19 THE VALUE OF THEIR HOMES.

20 (a) NOTICE.—

21 (1) GENERAL REQUIREMENT.—Within 90 days

22 after the enactment of this Act, the Director of the

23 Office of Management and Budget shall establish

24 uniform Federal procedures applicable to all agen25 cies under this section. In accordance with such pro-
4

•S 2070 IS

1 cedures, each agency shall require any person re2 quired to file any application to conduct property

3 impacting activity with the agency to provide the no4 tice described in this section. The Director shall des5 ignate a lead agency in the case of any application

6 under this section that involves more than one agen7 cy.

8 (2) APPLICATION TO CONDUCT PROPERTY IM9 PACTING ACTIVITY.—For purposes of this section,

10 the term an ‘‘application to conduct property im11 pacting activity’’ means an application for a permit,

12 license, or other approval form, or contract, lease, or

13 other arrangement, with an agency, that would au14 thorize the applicant, pursuant to Federal law, to

15 conduct an activity that generates pollutants or pro16 duces other adverse impacts with the potential to re17 duce the value of any private home.

18 (3) HOMEOWNERS REQUIRED TO RECEIVE NO19 TICE.—The notice under this section shall be pro20 vided by delivery, by certified mail, of individual

21 written notice to each homeowner whose property

lies within 1 22 ⁄4 mile of the perimeter of the site at

23 which the activity that is the subject of the applica24 tion will be carried out. The applicant shall also pub25 lish notice under this subsection at least 3 times in
5

•S 2070 IS

1 the newspapers of general circulation in the affected

2 community. The agency may also provide notice

3 under this subsection by mail to the owner of any

4 home identified by the agency as reasonably likely

5 to suffer a reduction in value as a result of the pro6 posed activity.

7 (4) NOTICE CONTENTS.—The notice referred to

8 in paragraph (2) shall describe the nature of the ap9 plication to conduct property impacting activity, the

10 potential impacts of the proposed activity on the

11 value of private homes, potential impacts on home12 owners and other members of the public, the name

13 and telephone number of the applicant and an agen14 cy representative assigned to provide further infor15 mation about the application, and any opportunities

16 available for homeowner or other affected members

17 of the public to comment on the proposed activity.

18 (b) PUBLIC RESPONSE; IDENTIFICATION OF ALTER19 NATIVES TO REDUCE PROPERTY IMPACTS.—In addition

20 to and not in lieu of any other procedures established by

21 law, each agency shall establish a toll-free telephone num22 ber which homeowners may call to register concerns about

23 the potential effects on property values of an application

24 for a proposed activity or to request additional information

25 concerning applications to conduct property impacting ac-
6

•S 2070 IS

1 tivities filed with the agency and opportunities to submit

2 public comment. If requested by an applicant or any home3 owner whose property is reasonably likely to suffer a re4 duction in value as a result of the activity to be authorized

5 by such application, the agency shall thoroughly inves6 tigate the potential impact of the proposed activity on the

7 value of private homes, and seek to identify alternatives

8 to the proposed action which reduce the adverse effects

9 on the value of private homes.

10 SEC. 4. HOMEOWNER RIGHT OF ACTION.

11 (a) RIGHT OF ACTION.—Whenever any person has

12 carried out any activity that—

13 (1) is authorized (or required to be authorized)

14 by a permit, license, or other approval issued by an

15 agency or pursuant to Federal law to such person,

16 or by a contract, lease, or other arrangement be17 tween such person and an agency, and

18 (2) generates pollutants or produces other ad19 verse impacts that cause or significantly contribute

20 to a total reduction in the value of one or more pri21 vate homes of $10,000 or more,

22 any owner of a private home, the value of which is reduced

23 by such activity, may commence an action against such

24 person under this section.
7

•S 2070 IS

1 (b) NOTICE OF INTENT TO SUE AND VOLUNTARY

2 CLAIM RESOLUTION PROCEDURES.—At least 30 days

3 prior to filing an action under this section, a homeowner

4 shall deliver a notice of intent to sue to the defendant and

5 to the head of the agency to which the application to con6 duct property impacting activity is submitted or required

7 to be submitted or which has authority to enter into the

8 contract, lease, or other arrangement. If either the home9 owner or the defendant requests that the agency resolve

10 the claim, the agency head shall convene a meeting of the

11 parties and use the best efforts of the agency to arrive

12 at a just resolution of the claim in order to avoid unneces13 sary litigation costs. Such efforts shall not affect the right

14 of the homeowner to bring an action under this section

15 at any time after the expiration of the 30-day period re16 ferred to in this subsection.

17 (c) BURDEN OF PROOF.—In any action under this

18 section, the homeowner shall have the burden of dem19 onstrating that the activity conducted by the defendant

20 caused or contributed to a reduction in the value of the

21 homeowner’s home.

22 (d) CLASS ACTIONS.—Similarly affected homeowners

23 are authorized to file suit under this section in accordance

24 with rule 23 of the Federal Rules of Civil Procedure in
8

•S 2070 IS

1 Federal district court in the district where such homes are

2 located.

3 (e) REMEDY.—Any homeowner authorized to bring

4 suit under this section shall be entitled to recover an

5 amount equal to the reduction in the value of the home6 owner’s home caused or significantly contributed to by the

7 activity referred to in subsection (a), except that such

8 compensation may not exceed the greater of—

9 (1) the median value (as determined by the

10 court based on tax assessments) of all private homes

11 in the immediate vicinity of the homeowner’s home;

12 or

13 (2) $500,000.

14 (f) ATTORNEYS FEES.—Any homeowner who receives

15 compensation under this section shall be awarded reason16 able attorney’s fees, including the cost of expert witnesses

17 and other reasonable costs.

18 (g) INJUNCTION.—In addition to providing com19 pensation under this section, whenever any activity that

20 is the subject of an action under this section constitutes

21 a violation of any Federal statute, regulation, permit, li22 cense, contract, lease, or other arrangement or form of

23 approval, the court may enjoin such activity.
9

•S 2070 IS

1 (h) JURISDICTION.—The United States district court

2 shall have original jurisdiction, concurrent with State

3 courts, of any action brought under this section.

4 (i) FRIVOLOUS OR OTHERWISE IMPROPER LAW5 SUITS.—If the court dismisses any action under this sec6 tion after finding that the plaintiff’s case was frivolous,

7 dilatory, abusive, or brought to harass the defendant or

8 for any other improper purpose, in addition to any other

9 sanction available to the court under the Federal Rules

10 of Civil Procedure, the court may, upon motion by the de11 fendant, order the plaintiff to pay the defendant’s reason12 able attorney’s fees and other expenses reasonably in13 curred by the defendant in participating in the litigation.

14 (j) STATUTE OF LIMITATIONS.—No action may be

15 brought under this section with respect to any private

16 home after the date 5 years after the date on which the

17 total reduction in the value of such home is $10,000.

18 (k) SAVINGS PROVISIONS.—

19 (1) PROHIBITION OF LIMITATION ON OTHER

20 CLAIMS.—No provision of this Act shall be construed

21 to limit the rights of any person to pursue any claim

22 or cause of action under the Constitution or any

23 other law (including a claim or cause of action con24 cerning real or personal property).
10

•S 2070 IS

1 (2) PROHIBITION OF USE AS CONDITION

2 PRECEDENT.—Commencement of a suit under this

3 Act, or receipt of compensation under this Act, shall

4 not be a condition precedent for any claim or cause

5 of action under any other authority of law.

6 SEC. 5. POTENTIAL TO REDUCE THE VALUE.

7 An activity that generates pollutants or produces

8 other adverse impacts shall be considered to have the po9 tential to reduce the value of any private home whenever

10 such activity may result in physical damage or any other

11 unlawful or objectively unreasonable interference with the

12 use and enjoyment of a private home.

13 SEC. 6. DEFINITIONS.

14 As used in this Act:

15 (1) AGENCY.—The term ‘‘agency’’ has the

16 meaning given that term in section 551(1) of title 5,

17 United States Code.

18 (2) PRIVATE HOME.—The term ‘‘private home’’

19 means any owner occupied dwelling, including any

20 multi-family dwelling and any condominium.

21 (3) REDUCTION IN VALUE.—The term ‘‘reduc22 tion in value’’ means, with respect to private home

23 affected by an activity referred to in section 4, the

24 difference (estimated based on values at the time an

25 action is brought under this section) between the
11

•S 2070 IS

1 fair market value of the home, and the fair market

2 value of the home in the absence of such activity.

3 (4) PERSON.—The term ‘‘person’’ means any

4 individual, corporation, partnership, or other organi5 zation or entity other than a Federal, State, or local

6 government agency.

7 SEC. 7. EFFECTIVE DATE.

8 This Act shall apply to each permit, license, or other

9 form of approval issued by an agency after the date 180

10 days after the enactment of this Act and to each contract,

11 lease, or other arrangement entered into by an agency

12 after the date 180 days after the enactment of this Act.

Æ