I
104TH CONGRESS
1ST SESSION
H. R. 971
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 compensa-
tion for development which produces pollution and other impacts ad-
versely affecting the value of their homes.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 16, 1995
Mr. WYDEN (for himself and Mr. GILCHREST) introduced the following bill;
which was referred to the Committee on Government Reform and Oversight
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 de-
velopment which produces pollution and other impacts
adversely affecting the value of their homes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Homeowners
Empowerment and Protection Act of 1995’’.
SEC. 2. FINDINGS.
The Congress finds and declares that—
(1) there are 65,000,000 homeowners in the
United States, representing approximately two-thirds
of all households, who have a strong and justified in-
terest in preserving and enhancing the value of their
property;
(2) the value of a homeowner’s home is based
in large part on the location of the property relative
to other features of the built and natural environ-
ment, and the increase or decrease in the value of
a home over time is inextricably linked to changes
in the quality of the neighborhood and environment
in which the home is located, including but not lim-
ited to the quality of the water for drinking, fishing,
and swimming, the clarity and healthfulness of the
air, the risk of flooding, the scenic beauty of the
community, the presence or absence of offensive
odors and excessive noise, the health and abundance
of wildlife resources, and other factors;
(3) the value of homes in the United States is
frequently reduced, and sometimes destroyed, by cer-
tain types of land development, industrial activity,
and other actions that occur on neighboring prop-
erties or at other locations, including sites upwind,
upstream, or upslope from private homes;
(4) protecting private homeowners from the ad-
verse affects of irresponsible actions of certain enti-
ties and individuals which cause injury to home-
owners’ property values is important not only to
homeowners but also to their communities and soci-
ety as a whole; and
(5) current public information and participation
procedures are often insufficient to provide individ-
ual homeowners with notice of activities and the op-
portunity to effectively participate in decisionmaking
procedures that have the potential to significantly
affect the value of their homes.
SEC. 3. HOMEOWNER RIGHT OF ACCESS TO INFORMATION
ABOUT ACTIVITIES THAT COULD REDUCE
THE VALUE OF THEIR HOMES.
(a) NOTICE.—
(1) GENERAL REQUIREMENT.—Within 90 days
after the enactment of this Act, the Director of the
Office of Management and Budget shall establish
uniform Federal procedures applicable to all agen-
cies under this section. In accordance with such pro-
cedures, each agency shall require any person re-
quired to file any application to conduct property
impacting activity with the agency to provide the no-
tice described in this section. The Director shall des-
ignate a lead agency in the case of any application
under this section that involves more than one
agency.
(2) APPLICATION TO CONDUCT PROPERTY IM-
PACTING ACTIVITY.—For purposes of this section,
the term an ‘‘application to conduct property im-
pacting activity’’ means an application for a permit,
license, or other approval form, or contract, lease, or
other arrangement, with an agency, that would au-
thorize the applicant, pursuant to Federal law, to
conduct an activity that generates pollutants or pro-
duces other adverse impacts with the potential to re-
duce the value of any private home.
(3) HOMEOWNERS REQUIRED TO RECEIVE NO-
TICE.—The notice under this section shall be pro-
vided by delivery, by certified mail, of individual
written notice to each homeowner whose property
lies within 1⁄4 mile of the perimeter of the site at
which the activity that is the subject of the applica-
tion will be carried out. The applicant shall also pub-
lish notice under this subsection at least 3 times in
the newspapers of general circulation in the affected
community. The agency may also provide notice
under this subsection by mail to the owner of any
home identified by the agency as reasonably likely to
by such application, the agency shall thoroughly inves-
tigate the potential impact of the proposed activity on the
value of private homes, and seek to identify alternatives
to the proposed action which reduce the adverse effects
on the value of private homes.
SEC. 4. HOMEOWNER RIGHT OF ACTION.
(a) RIGHT OF ACTION.—Whenever any person has
carried out any activity that—
(1) is authorized (or required to be authorized)
by a permit, license, or other approval issued by an
agency or pursuant to Federal law to such person,
or by a contract, lease, or other arrangement be-
tween such person and an agency, and
(2) generates pollutants or produces other ad-
verse impacts that cause or significantly contribute
to a total reduction in the value of one or more pri-
vate homes of $10,000 or more,
any owner of a private home, the value of which is reduced
by such activity, may commence an action against such
person under this section.
(b) NOTICE OF INTENT TO SUE AND VOLUNTARY
CLAIM RESOLUTION PROCEDURES.—At least 30 days
prior to filing an action under this section, a homeowner
shall deliver a notice of intent to sue to the defendant and
to the head of the agency to which the application to con-
duct property impacting activity is submitted or required
to be submitted or which has authority to enter into the
contract, lease, or other arrangement. If either the home-
owner or the defendant requests that the agency resolve
the claim, the agency head shall convene a meeting of the
parties and use his or her best efforts to arrive at a just
resolution of the claim in order to avoid unnecessary litiga-
tion costs. Such efforts shall not affect the right of the
homeowner to bring an action under this section at any
time after the expiration of the 30-day period referred to
in this subsection.
(c) BURDEN OF PROOF.—In any action under this
section, the homeowner shall have the burden of dem-
onstrating that the activity conducted by the defendant
caused or contributed to a reduction in the value of the
homeowner’s home.
(d) CLASS ACTIONS.—Similarly affected homeowners
are authorized to file suit under this section in accordance
with rule 23 of the Federal Rules of Civil Procedure in
Federal district court in the district where his or her home
is located.
(e) REMEDY.—Any homeowner authorized to bring
suit under this section shall be entitled to recover an
amount equal to the reduction in the value of the home-
owner’s home caused or significantly contributed to by the
activity referred to in subsection (a), except that such
compensation may not exceed the median value (as deter-
mined by the court) of all private homes in the immediate
vicinity of the homeowner’s home.
(f) ATTORNEYS FEES.—Any homeowner who receives
compensation under this section shall be awarded reason-
able attorney’s fees, including the cost of expert witnesses
and other reasonable costs.
(g) INJUNCTION.—In addition to providing com-
pensation under this section, whenever any activity that
is the subject of an action under this section constitutes
a violation of any Federal statute, regulation, permit, li-
cense, contract, lease, or other arrangement or form of
approval, the court may enjoin such activity.
(h) JURISDICTION.—The United States district court
shall have original jurisdiction, concurrent with State
courts, of any action brought under this section.
(i) FRIVOLOUS
OR OTHERWISE IMPROPER LAW-
SUITS.—If the court dismisses any action under this sec-
tion after finding that the plaintiff’s case was frivolous,
dilatory, abusive, or brought to harass the defendant or
for any other improper purpose, in addition to any other
sanction available to the court under the Federal Rules
of Civil Procedure, the court may, upon motion by the de-
fendant, order the plaintiff to pay the defendant’s reason-
able attorney’s fees and other expenses reasonably in-
curred by the defendant in participating in the litigation.
(j) STATUTE OF LIMITATIONS.—No action may be
brought under this section with respect to any private
home or homes after the date 5 years after the date on
which the total reduction in the value of such home or
homes has reached $10,000.
(k) SAVINGS PROVISIONS.—
(1) PROHIBITION
OF
LIMITATION
ON
OTHER
CLAIMS.—No provision of this Act shall be construed
to limit the rights of any person to pursue any claim
or cause of action under the Constitution or any
other law (including a claim or cause of action con-
cerning real or personal property).
(2) PROHIBITION
OF
USE
AS
CONDITION
PRECEDENT.—Commencement of a suit under this
Act, or receipt of compensation under this Act, shall
not be a condition precedent for any claim or cause
of action under any other authority of law.
SEC. 5. EFFECTIVE DATE.
This Act shall apply to each permit, license, or other
form of approval issued by an agency after the date 180
days after the enactment of this Act and to each contract,
lease, or other arrangement entered into by an agency
after the date 180 days after the enactment of this Act.
SEC. 6. DEFINITIONS.
As used in this Act:
(1) AGENCY.—The term ‘‘agency’’ has the
meaning given that term in section 551(1) of title 5,
United States Code.
(2) POTENTIAL TO REDUCE THE VALUE.—An
activity that generates pollutants or produces other
adverse impacts shall be considered to have the po-
tential to reduce the value of any private home
whenever such activity may result in physical dam-
age or any other unlawful or objectively unreason-
able interference with the use and enjoyment of a
private home.
(3) PRIVATE HOME.—The term ‘‘private home’’
means any owner occupied dwelling, including any
multi-family dwelling and any condominium.
(4) REDUCTION
IN
VALUE.—For any private
home affected by an activity referred to in section 4,
the term ‘‘reduction in value’’ means the difference
(estimated based on values at the time an action is
brought under this section) between the fair market
value of the home, and the fair market value of the
home in the absence of such activity.
(5) PERSON.—The term ‘‘person’’ means any
individual, corporation, partnership, or other organi-