Legal Comments on H.R. 4772: The Private Property Rights Implementation Act of 2006
CRS Report for Congress
Legal Comments on H.R. 4772: The Private
Property Rights Implementation Act of 2006
November 13, 2006
American Law Division
Congressional Research Service ˜ The Library of Congress
Legal Comments on H.R. 4772:
The Private Property Rights Implementation Act of 2006
H.R. 4772, titled the Private Property Rights Implementation Act of 2006,
passed the House in September 2006 and may, if the Senate acts, move forward
during the 2006 lame-duck session.
The bill combines process and substance. The process provisions would ease
or eliminate four current hurdles to a federal takings or substantive due process claim
being adjudicated in federal court on the merits — in those cases where government
interference with property rights is alleged. Those hurdles are abstention, the takings
ripeness requirements that the plaintiff must first obtain a final decision from the
land-use control agency and exhaust state court remedies, and certification of state
law questions to the state courts. The bill does not affect the property owner’s access
to state courts, which are also available to vindicate such claims.
The bill’s limitations on federal court abstention would allow the plaintiff to
preclude abstention by not including any claim of state law violation. The bill’s
elimination of the current state exhaustion prerequisite for a ripe takings claim may
well be beyond Congress’s authority if, as sound argument suggests, that prerequisite
is constitutionally based. The final decision definition in the bill involves a trade-off
between easing the procedural burdens on the property owner on the one hand, and
the routine give-and-take of local land-use negotiations and informational needs of
courts for applying the takings test on the other.
The substantive provisions of the bill provide “clarification” of takings and
substantive due process constraints on government interference with property rights.
As for federal takings claims, the bill declares that the Supreme Court’s test for when
exaction conditions on development constitute takings shall apply broadly — to both
exactions and other conditions on development, to both adjudicatory and legislative
conditions and exactions, and to both land dedications and monetary fees. Also,
when a taking claim involves a subdivided lot recognized as an individual property
unit under state law, that lot shall be deemed the “parcel as a whole” in the takings
analysis. As for substantive due process claims, the bill says that the criterion is
whether the government action is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.
The key issue with the substantive provisions is whether they are constitutional.
Suggesting unconstitutionality is the principle that it is the responsibility of the
courts, not Congress, to define the substance of constitutional guarantees. But there
are plausible counter-arguments — e.g., that the bill is merely a statutory overlay to
constitutional guarantees, not a redefinition of them. Leaving aside the
constitutionality question, the provisions expand the circumstances in which property
owners can prevail on takings and substantive due process claims. For example, in
requiring substantive due process claims to be assessed on a “not in accordance with
law” standard, the bill significantly lowers the bar relative to existing judicial
standards for such violations, which are typically more deferential to government.
Provisions of the Bill...............................................2
Limitations on Abstention.......................................3
Elimination of State Exhaustion Requirement........................4
Definition of “Final Decision”....................................6
A Threshold Matter: Congressional “Clarification” of
“Clarification” of Status in Takings Law of Conditions
and Exactions on Development..............................10
“Clarification” of Status in Takings Law of Subdivided Lots...........11
“Clarification” of When Property Deprivation Violates Substantive
Legal Comments on H.R. 4772: The Private
Property Rights Implementation Act of 2006
H.R. 4772, styled the Private Property Rights Implementation Act of 2006,
combines process and substance. Its process provisions would ease or eliminate
certain current hurdles to a federal takings or substantive due process claim being
adjudicated in federal court on the merits, where government interference with
property rights is alleged.1 Its substantive provisions would have the effect of
facilitating success on the merits when such claims are brought, through
“clarifications” of those same takings and substantive due process constraints. The
bill was reported by the House Committee on the Judiciary on September 14, 2006
and passed the House on September 29, 2006 (231-181). This report was prepared
on the possibility that the Senate may introduce similar legislation during the lame-
duck session of 2006, allowing some version of either bill to move toward enactment.
Although H.R. 4772 has previous incarnations,2 the current congressional
interest in the bill largely stems from the Supreme Court’s 2005 decision in Kelo v.
City of New London.3 That decision dealt with a related, but very different matter.
Although H.R. 4772 seeks to facilitate takings lawsuits by land owners aggrieved by
government interference, Kelo addressed the permissible public purposes underlying
direct condemnation suits by governments seeking to acquire land. Yet to be sure,
both Supreme Court decision and bill speak to property rights and aspects of the Fifth
Amendment Takings Clause’s protection of property rights, and public concerns
about property rights kindled by the decision plainly have enhanced interest in the
1 By way of background, a “federal takings claim” is brought by a property owner against
the government under the Fifth Amendment Takings Clause. That clause states: “[N]or shall
private property be taken for public use, without just compensation.” The property owner
alleges that the government’s action — either a physical invasion of his property or severe
regulation of its use or an exaction condition on development approval — is tantamount to
a taking, and thus should be compensated, even though the government has not formally
sought to take the property.
A substantive due process claim has a somewhat different focus. It aims to “prevent
government power from being used for purposes of oppression, or abuse of government
power that shocks the conscience, or action that is legally irrational in that it is not
sufficiently keyed to any legitimate state interest.” Torromeo v. Town of Fremont, NH, 438st
F.3d 113, 118 (1 Cir. 2006). A substantive due process claim against a state or local
government is brought under the Due Process Clause of the Fourteenth Amendment; a
similar action against the United States is brought under the Due Process Clause of the Fifth
2 See H.R. 1534 in the 105th Congress and H.R. 2372 in the 106th. In each case, the bill
passed the House but failed to emerge from the Senate.
3 545 U.S. 469 (2005).
This report comments only on the legal and legally related policy issues raised
by H.R. 4772.
Provisions of the Bill
H.R. 4772’s process features, as noted, seek to facilitate access to the federal
courts by property owners with certain federal constitutional claims. The process
features do not affect the property owner’s access to state courts for adjudicating
those federal claims, which courts remain generally available. Rather, they offer the
property owner a second forum for federal claims. The key process features of the
bill are as follows:
1. section 2: in an action under 28 U.S.C. § 13434 in which the facts concern the uses
of real property, limits when a federal district can abstain from deciding the action,
requires that the court exercise jurisdiction even if the plaintiff has not first pursued
his state-court remedies, and limits when the court can “certify” a related question
of state law to the state courts (asking the state court to clarify a point of state law
and report back to the federal court), and
(against political subdivisions of states) or under the Tucker Acts (against the United
States) shall be ripe for adjudication upon a “final decision,” which exists if (a) the
government makes a definitive decision as to the permissible uses of the property,
and (b) one meaningful application to use the property has been denied and the
property owner has applied for but been denied one waiver and one appeal, unless
unavailable or futile.
These process features closely track approaches used in the earlier bills. There areth
a host of small changes, however. For example, H.R. 1534 (105 Congress) defines
4 28 U.S.C. § 1343 provides federal district courts with jurisdiction over actions brought
under 42 U.S.C. § 1983, explained in the following footnote.
5 42 U.S.C. § 1983, the Civil Rights Act of 1871, provides that —
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the person injured ....
Though originally intended to secure federally guaranteed rights for the newly freed slaves,
the broad terms of this act have lead to its being used in a wide diversity of situations, such
as Fifth Amendment takings claims.
6 The term “person” in 42 U.S.C. § 1983 has been held to cover municipalities, Monell v.
New York City Dep’t of Social Services, 436 U.S. 658 (1978), and other political
subdivisions of a state (that are not arms of the state), but not states themselves, Will v.
Michigan Dep’t of State Police, 491 U.S. 58 (1989). Thus, H.R. 4772 does not change the
situation of property owners when it comes to actions against states. In practice, of course,
the large majority of land use controls in the United States are imposed by political
subdivisions of states, such as municipalities.
“final decision” to require the property owner to seek, but be denied, one waiver or
one appeal. In contrast, H.R. 2372 (106th Congress) and H.R. 4772 require one
waiver and one appeal, seemingly a more demanding ripeness standard.
H.R. 4772’s substantive features are as follows:
1. sections 5-6: takings actions brought under 42 U.S.C. § 1983 (against political
subdivisions of states) or under the Tucker Acts (against the United States) are
subject to two “clarifications”: (1) conditions or exactions on land development
approvals shall be subject to the applicable takings test regardless of whether
legislative or adjudicatory in nature, or whether in the form of a monetary fee or land
dedication, and (2) each subdivided lot in a subdivision shall be regarded as a
separate parcel, if so treated under state law, and
2. sections 5-6: substantive due process actions under 42 U.S.C. § 1983 (against
political subdivisions of states) or against the United States, where based on property
deprivation, are subject to a “clarification”: the judgment shall be based on whether
the government action is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.”
These substantive provisions have no counterpart in the earlier bills.
Both H.R. 2372 (106th Congress) and H.R. 4772 impose a “duty of notice to
owners” — requiring federal agencies, when they limit the use of property in a
manner that may be affected by the bill, to give notice to property owners explaining
their rights under the bill. Finally, only H.R. 4772 contains a severability clause,
stating that if any of the bill’s provisions or their applications are held invalid, other
provisions and their applications shall not be affected.
Limitations on Abstention
Abstention is a discretionary doctrine under which federal judges may decline
to decide cases that are otherwise properly before them. Grounded in principles of
comity and cooperative federalism, abstention holds that federal courts should not
intrude on sensitive state issues unless necessary. Rather, say proponents of
abstention, those controversies should be settled in the state courts. Thus, abstention
is an exception to the otherwise “virtually unflagging obligation of the federal courts
to exercise the jurisdiction given them.”7
Abstention is an option for a federal judge when a local land use regulation is
attacked in federal court as a taking.8 The federal judge may defer to the state courts
7 Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 817 (1976).
8 See, e.g., Kent Island Joint Venture v. Smith, 452 F. Supp. 455 (D. Md. 1978) (collecting
using any of three types of abstention. Pullman abstention9 arises in federal-court
challenges to state action in which resolution of an unsettled state law issue could
eliminate the need to decide (or could narrow) a difficult federal question. Burford
abstention10 counsels against federal adjudication in cases touching on a complex
state regulatory scheme concerning important matters of state policy more properly
addressed by state courts. Colorado River abstention instructs federal courts not to
dismiss or stay a federal action in deference to a concurrent state proceeding except
in “exceptional” circumstances.11 Courts are known to blend the various types of
H.R. 4772 directs that federal courts adjudicating civil rights claims involving
real property shall not abstain if the plaintiff does not allege a state law violation and
no parallel proceeding is pending in state court. This narrows the grounds on which
abstention currently may be invoked. Moreover, it is likely that this would preclude
abstention in most cases since plaintiff, to ensure that abstention does not occur,
would have only to delete any claims of state law violation from his complaint.
Elimination of State Exhaustion Requirement
In 1985, the Supreme Court announced that a Fifth Amendment takings claim
against a state12 is ripe for federal court adjudication only when the plaintiff has
exhausted his state court remedies, if available and not futile.13 The Court reaffirmed
this state exhaustion prerequisite in several later decisions.14 The requirement has
been a perennial bete noir of real estate developers and other property rights
advocates, who contend that state courts in many states are less friendly to their
interests than federal courts. Some scholars perceive a lesser institutional
competence or neutrality in state courts to handle federal constitutional claims,
though we are unaware of any authoritative, empirical study on this point.15 In any
event, property owners and developers argue that notwithstanding the availability of
state courts for vindicating their Fifth Amendment takings claims, there is a right,
given the federal nature of the claim, to being able to file in the first instance in a
federal forum as well.
land-use abstention decisions).
9 Announced in Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941).
10 Announced in Burford v. Sun Oil Co., 319 U.S. 315 (1943).
11 Announced in Colorado River Water Cons. Dist. v. United States, 424 U.S. 800 (1976).
12 All references to states in this report should be understood to include political
subdivisions of states.
13 Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).
14 See, most recently, San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S.
15 See, e.g., Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105 (1977); Gregory
Overstreet, The Ripeness Doctrine of the Takings Clause: A Survey of Decisions Showing
Just How Far Federal Courts Will Go to Avoid Adjudicating Land Use Cases, 10 J. Land
Use & Envtl. L. 91 (1994).
Landowners further complain that once the state exhaustion prerequisite is met,
relitigating the takings claim in federal court has been barred under any of several
legal doctrines. These doctrines, based on federal-state comity and considerations
of judicial economy by avoiding duplicative litigation, are the federal Full Faith and
Credit Act,16 res judicata (claim preclusion), collateral estoppel (issue preclusion),
and the Rooker-Feldman doctrine.17 The net effect of each is the same: the
landowner gets no “second bite at the apple” in federal court. Nor, says the Supreme
Court, does this offend any notion that persons asserting federal rights must have
access to federal courts. In a recent takings case raising this issue, the Court noted
that it has “repeatedly held ... that issues actually decided in valid state-court
judgments may well deprive plaintiffs of the ‘right’ to have their federal claims
relitigated in federal court,” and that “[t]his is so even when the plaintiff would have
preferred not to litigate in state court, but was required to do so ....”18
H.R. 4772 proposes to eliminate the state exhaustion requirement, so that a
takings claimant could go initially to federal court, bypassing the state courts. The
question, however, is whether state exhaustion is mandated by the terms of the Fifth
Amendment Takings Clause, in which case Congress cannot eliminate it by statute.
The alternative is that the requirement is merely “prudential” — imposed as a matter
of judicial discretion — in which case Congress can nullify it by statute.
The Supreme Court has come down on both sides of the constitutional versus
prudential issue. In the 1985 Supreme Court decision announcing the state
exhaustion rule, the Court explained that a property owner aggrieved by a state
property use restriction “has not suffered a violation of the Just Compensation
Clause” until he unsuccessfully seeks compensation through state procedures,19 and
further that “[t]he nature of the constitutional right” requires state exhaustion first.20
And in 1999, the Court noted that “had an adequate postdeprivation remedy been
available, [the property owner] would have suffered no constitutional injury from the
taking alone.”21 In direct contradiction of these statements, the Court in 1997
referred to the state exhaustion requirement in dictum as merely prudential,22
neglecting to mention contrary precedent. Later in the same opinion, however, the
Court arguably suggested the opposite.23 Most recently, in 2005, a four-justice
16 28 U.S.C. § 1738.
17 The Rooker-Feldman doctrine, named after the Supreme Court decisions that gave birth
to it, bars review of state court judgments by the lower federal courts. It stems from the
proposition that district courts lack appellate jurisdiction and therefore cannot hear appeals
of state court judgments.
18 San Remo, 545 U.S. at 342.
19 Williamson Cty., 473 U.S. at 195.
20 Id. at 194 n.13.
21 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 710 (1999).
22 Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733-734 (1997).
23 The state exhaustion requirement, it said, “stems from the Fifth Amendment’s proviso that
only takings without ‘just compensation’ infringe that Amendment.” Id. at 734.
dissent opined that the Court’s adoption of the state exhaustion requirement, whether
constitutional or prudential, “may have been mistaken.”24
On balance, the Court’s statements favoring a constitutional rather than
prudential basis for state exhaustion may be weightier, raising doubts as to whether
H.R. 4772 may validly dispense with it. Concededly, the four-justice dissent in 2005
raises the possibility that a one-justice change in the Court might produce a change
in the law someday; this report, however, analyzes the law as it stands right now.
Definition of “Final Decision”
The same Supreme Court decision that debuted state exhaustion in 1985
imposed a second ripeness requirement on federal takings claims: “a claim that the
application of government regulations effects a taking ... is not ripe until the
government entity ... has reached a final decision regarding the application of the
regulations to the property at issue.”25 The following year, the Court made clear that
obtaining a “final decision” might require the landowner to submit more than one
development proposal: “[r]ejection of exceedingly grandiose development plans does
not logically imply that less ambitious plans will receive similarly unfavorable
reviews.”26 For example, just because a developer is prohibited from building 100
houses on its tract does not necessarily mean that some lesser, but still profitable,
number of houses may not be permitted. Later decisions of the Court appear to relax
the requirement of formal development proposals by the land owner, recognizing that
in some circumstances it is clear how much development can occur, and thus the
taking claim is ripe, without multiple, or indeed any, proposals.27
The final decision requirement is seen by courts as essential to the court’s ability
to adjudicate a taking claim. Evaluation of a taking claim, they note, demands that
a court know how much development is being permitted on the property, so that the
fact-intensive balancing test applied to most regulatory takings claims can be applied.
On the other hand, property owners accuse land-use-control agencies of exploiting
the final decision concept to get landowners to abandon politically unpopular or
otherwise unpopular development — by requiring multiple submissions from the
landowner, each prepared at substantial expense, with no assurance that the proposal
will ever be deemed satisfactory.
H.R. 4772, as noted, seeks to define “final decision.” It would stipulate that a
final decision has occurred when (1) a “definitive decision regarding the extent of
permissible uses on the property” has been made, and (2) one “meaningful
application” to use the property has been submitted but denied and the property
24 San Remo v. City and County of San Francisco, California, 545 U.S. 323, 348 (2005).
25 Williamson Cty., 473 U.S. at 186 (emphasis added).
26 MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 353 n.9 (1986).
27 Said the Court in Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001): “once it becomes
clear that [an] agency lacks the discretion to permit any development, or the permissible
uses of the property are known to a reasonable degree of certainty, a takings claim is likely
to have ripened.”
owner has applied for but been denied one waiver and one appeal to an
administrative agency, unless unavailable or futile.28
The two key concepts in the definition — “definitive decision” and “one
meaningful application” — are undefined, and raise the spectre of much litigation
before their contours are known. Still, it is clear that the “final decision” definition
would benefit landowners and developers by increasing the likelihood that the initial
development proposal, unless patently unreasonable, will upon denial (and denial of
waiver and appeal) create a ripe taking claim that the court must address. The court
would not have the option of sending the landowner back to the land-use agency for
further, presumably scaled-back, proposals and/or negotiations. Such give-and-take
between developer and regulating authority is currently a routine part of the land use
control process in this country. Perhaps for this reason, the standard in the takings-
ripeness case law is “at least one meaningful application” for development approval,
not, as in the bill, “one meaningful application.”29
H.R. 4772 reduces the possibility that municipal authorities set on discouraging
a particular project could drag out the development-approval process and argue that,
as a result, the development proponent remains short of a final decision, hence a
viable taking claim. There are occasional reports that such bad faith dealing occurs,
though again we know of no definitive studies. However, the bill also raises the legal
issue of whether a court can competently assess the economic impact of the
government’s action — a central component of takings analysis — given that an
initial denial does not necessarily convey a clear sense of what property uses will be
allowed. In the Supreme Court’s famous phrase: “A court cannot determine whether
a regulation has gone too far unless it knows how far the regulation goes.”30 From
the municipality’s point of view, the bill creates pressure to accept the first-submitted
development proposal, knowing that denying it may land the municipality in federal
court defending a taking claim.
28 The “and” between items (1) and (2) arguably makes more sense if read as an “or.”
29 It should also be noted that in almost all the pertinent cases, submitting “at least one
meaningful application” for development approval is a prerequisite for invoking the futility
exception to the final decision requirement for ripeness. In H.R. 4772, the criterion is
applied to establishing the final decision itself.
30 MacDonald, 477 U.S. at 348 (internal quotation marks omitted).
A Threshold Matter: Congressional “Clarification”
of Constitutional Provisions
It is long-settled law that under the Constitution and the separation of powers
it embodies, it falls to the judiciary, not the Congress, to set forth binding
prescriptions as to what constitutional provisions mean. Plainly, Congress routinely
interprets the Constitution in the course of determining what legislation it may enact.
But laying down binding rules for the judiciary’s use is another matter. In the classic
words of Chief Justice John Marshall, “It is emphatically the province and duty of the
judicial branch to say what the law is.”31 More recently, the Court has reaffirmed that
“[t]he power to interpret the Constitution in a case or controversy remains in the
Judiciary”32 and similarly that “it is the responsibility of this Court, not Congress, to
define the substance of constitutional guarantees.”33
H.R. 4772 arguably lays out such impermissible congressional prescriptions for
judicial interpretation of the Constitution. Sections 5 and 6 of the bill do not use the
language of mere suggestion. They say, with apparent reference to the Takings
Clause, that the government “is liable” if certain circumstances obtain, and that the
case “shall be decided” based on a certain parcel as a whole (see below). Those same
sections instruct that an alleged deprivation of substantive due process “shall be
judged” by a particular review standard. Nor do the above judicial statements appear
to leave room for such congressional “clarification,” as the bill labels it, when a
constitutional provision has not been explicated by the courts. Indeed, there are few
if any constitutional provisions that could not benefit from further clarification, so
that an exception to the general prohibition where the law is unclear would easily
swallow the rule.
The committee report accompanying H.R. 4772 views section 5, addressing
section 1983 actions against political subdivisions of states, in a different way.34
Rather than imposing a reinterpretation of the Constitution as posited above, the
committee report notes that 42 U.S.C. section 1983, which section 5 amends, already
states that cases can be heard in federal court for ... “deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” All that section 5
does, the report says, is further define what is a “deprivation of any rights, privileges,
or immunities secured by the ... laws.”35 Further (though not raised by the committee
report), a well-settled principle of statutory construction says that where one reading
of a statute raises constitutional issues, a court should construe the statute to avoid
31 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
32 City of Boerne v. Flores, 521 U.S. 507, 524 (1997).
33 Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 365 (2001) (citing
City of Boerne).
34 H.Rept. 109-658, at 7 n.7 (2006).
35 It is unclear whether an analogous argument could be made in connection with section 6
of the bill, which applies to claims against the United States.
such problems unless such reading is plainly contrary to the intent of Congress.36 It
is unclear whether the committee report statement would be sufficient to deflect a
court from the possibly unconstitutional reading in the preceding paragraphs, given
what seems to be the more comfortable fit between that reading and the text of
Another possible circumvention of the constitutionality issue is offered, with
respect to property rights claims against the United States only (section 6), by
Congress’s constitutional power “to pay the Debts ... of the United States ....”37 The
Supreme Court has held that the term “Debts” includes not only legal obligations of
the United States, but also “those debts or claims that rest upon a merely equitable
or honorary obligation.”38 Further, “Congress may recognize its obligation to pay a
moral debt not only by direct appropriation, but also by waiving an otherwise valid
defense to a legal claim against the United States.”39 It would seem possible that a
court might regard section 6’s expansion of takings and substantive due process
claims against the United States as in the nature of, or analogous to, “waiving an
otherwise valid defense.”
Congress’s authority under the Fourteenth Amendment, section 5, to “enforce,
by appropriate legislation” the guarantees of that amendment does not alter the
analysis.40 As the Court has made clear, Congress’s power under section 5 is to
“enforce” those guarantees — that is, prevent or remedy violations — not to redefine
their substance.41 Nor has Congress shown a “history and pattern” of
unconstitutional actions by the states (here, the state courts) — a predicate for
invocation of Fourteenth Amendment section 5.42
Nor would it seem that sections 5 and 6 of the bill can be hung on Congress’s
authority in Article III of the Constitution to define the jurisdiction of courts created
36 See, e.g., DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575
(1988), quoting Hooper v. California, 155 U.S. 648, 657 (1895).
37 U.S. Const. art. I, § 8, cl. 1.
38 United States v. Sioux Nation of Indians, 448 U.S. 371, 397 (1980), quoting United States
v. Realty Co., 163 U.S. 427, 440 (1896).
39 Sioux Nation, 448 U.S. at 397.
40 The Fourteenth Amendment is relevant here because among its guarantees, in section one,
is that no state shall deprive any person of property without due process of law. This due
process requirement includes both substantive due process protections and, by incorporation
from the Fifth Amendment, the Takings Clause protection against government taking of
property without just compensation.
41 City of Boerne, 521 U.S. at 519 (“Congress does not enforce a constitutional right by
changing what the right is.”). Prior to City of Boerne, Congress’s power under section 5 of
the Fourteenth Amendment to define the substance of rights guaranteed by section 1 of the
Amendment was a closer question. See id. at 527-528, discussing Supreme Court’s earlier
decision in Katzenbach v. Morgan, 384 U.S. 641 (1966), “which could be interpreted as
acknowledging a power in Congress to enact legislation that expands the rights in § 1 of the
Fourteenth Amendment.” City of Boerne, however, rejected that reading of the decision.
42 See, e.g., Board of Trustees, 531 U.S. at 368 (2001).
under that article. As the titles and text of sections 5 and 6 make clear, those
provisions seek to address the meaning of constitutional provisions, not, in any direct
sense, the jurisdiction of Article III courts to hear them.
Moving past the constitutionality issue in sections 5 and 6, the following
compares the three prescriptions therein with existing takings and substantive due
process caselaw, to indicate the degree to which H.R. 4772 changes the law.
“Clarification” of Status in Takings Law of Conditions and
Exactions on Development
Local governments in the United States routinely impose conditions on allowing
the development of land. Some of these conditions take the form of requiring the
proponent of development to transfer something to the public, on the rationale that
he has some duty to offset the burdens imposed by the proposed development on the
community. Such “exactions” may be either dedications of acreage by the
landowner or payment of a monetary equivalent. A typical exaction might require,
before a development is approved, that the developer dedicate acreage for public
roads or walkways, or open space.
Such exactions, not to be takings, must both (1) have an “essential nexus” to the43
purpose of the development approval regime to which they are attached, and (2)
impose a burden on the landowner that is “roughly proportional” to the impacts of44
the proposed development. The burden of showing rough proportionality rests with
the government, and requires an individualized determination. This Supreme Court
test for “exaction takings” is generally considered to be more friendly to the property
owner asserting a taking claim than the default regulatory takings tests. For that
reason, the property rights bar has long sought its expansive application.
H.R. 4772 seeks to further this effort by property owners.45 First, it would apply
the exaction takings test to conditions as well as exactions. By contrast, the Supreme46
Court applies its exaction takings test only to exactions. In bringing in conditions
generally, H.R. 4772 makes that landowner-friendly test applicable to a vast array of
development prerequisites such as building code requirements.
43 Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).
44 Dolan v. City of Tigard, 512 U.S. 374 (1994).
45 The language of the pertinent provisions in bill sections 5 and 6 is circular in saying that
the government is liable when the condition or exaction is unconstitutional. We overlook
this drafting issue in our text comments.
46 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702 (1999) (“we
have not extended the rough proportionality test of Dolan beyond the special context of
exactions”); Lingle v. Chevron U.S.A. Ltd., 544 U.S. 528, 546 (2005) (“Both Nollan and
Dolan involved ... adjudicative land-use exactions — specifically, government demands that
a landowner dedicate an easement allowing public access to her property as a condition of
obtaining a development permit.”).
Second, H.R. 4772 would make the government liable regardless of whether the
exaction or other condition was imposed adjudicatively (by a ruling specific to the
landowner’s parcel) or legislatively (through a generally applicable ordinance).
Lower court decisions on whether the Supreme Court’s exaction takings test applies
only to adjudicatively imposed exactions, or to legislative exactions also, remain
divided. However, twice since announcing the test, the Supreme Court has suggested
that it is not to be extended beyond the factual context of the cases in which it was
announced — i.e., adjudicative exactions.47 Thus, there is a distinct possibility that
future case law may veer toward the adjudicative-only view.
Third, H.R. 4772 would make the government liable regardless of whether the
exaction or other condition took the form of a dedication requirement or a monetary
assessment. As above, the lower courts are divided on the reach of the exactions
takings test here — some saying that only physical dedication exactions are covered,
others that monetary assessments are covered also. But also as above, recent
Supreme Court caselaw hints at the ultimate resolution if the issue were presented:
the Court might exclude monetary assessments.48
“Clarification” of Status in Takings Law of Subdivided Lots
Takings law dictates that a court, in deciding whether a regulatory taking has
occurred, must look at the property owner’s loss relative to the value she retains —
requiring the court to define the “parcel as a whole” for assessing that residual value.
A court’s definition of the parcel as a whole in a given case can easily determine
whether a taking occurred. When the parcel as a whole is defined tightly around the
development-restricted portion of the tract, the relative loss to the takings plaintiff
is calculated as quite large (thus, a possible taking); when defined more broadly, the
relative loss is calculated as small (almost certainly not a taking).
Property owners and developers often contend that on a subdivided tract of land,
each individual subdivided lot should be deemed a separate parcel as a whole. On
this view, when a land-use agency bars development on wetlands occupying a portion
of the tract, a taking of the subdivided lots within that portion will likely be found,
since each such lot suffers a very large percentage of value loss. The tract owner thus
would be compensated for the restricted portion. H.R. 4772 adopts this approach,
instructing the courts to decide covered takings claims “with reference to each
subdivided lot, regardless of ownership ....”
Whether an individual subdivided lot, though surrounded by other lots in
common ownership, should be seen as the parcel as a whole in a takings case has not
been addressed by the Supreme Court. Indeed, the Court has not elaborated much on
47 See, e.g., Wisconsin Builders Ass’n v. Wisconsin DOT, 702 N.W.2d 433, 448 (Wis.
48 In Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2006), the Court described Nollan
and Dolan as each “[beginning] with the premise that had the government simply
appropriated the easement in question, this would have been a per se physical taking.”
(Emphasis in original.) If limited to physically invasive conditions, the exaction takings test
in Nollan and Dolan plainly would not apply to monetary exactions.
the parcel as a whole doctrine at all since it was announced in 1978.49 On the other
hand, every lower court decision of which we are aware on the subdivided-lot
question holds that individual subdivided lots are not to be regarded as separate
parcels as a whole, at least where the landowner is seeking to develop several lots as
part of a unified development plan.50 Thus the bill differs from existing case law.
More generally, the courts, in defining the parcel as a whole in each case, have
adopted an ad hoc approach. The effort, said the Court of Federal Claims, “must be
to identify the parcel as realistically and fairly as possible, given the entire factual and
regulatory environment.”51 By contrast, H.R. 4772 makes one single factor, the
owner’s drawing of subdivision lot lines, conclusive. Of course, this does promote
greater certainty than exists under the constitutional ad hoc analysis.
“Clarification” of When Property Deprivation
Violates Substantive Due Process
For the most part, federal judges have endorsed a very deferential substantive52
due process standard for scrutiny of state and local land-use restrictions. An
example is a recent decision for the Third Circuit by then-judge Alito adopting the53
strict “shocks the conscience of the court” test for such challenges. The First
Circuit has said that “even an arbitrary denial of a permit in violation of state law —54
even in bad faith — does not rise above the [due process] threshold ....” Rather,
substantive due process should be available to reign in local land use controls only55
in “truly horrendous situations.” These standards appear to be stricter than the
classic “arbitrary and capricious” standard.
H.R. 4772 would lower the bar for federal substantive due process claims
involving property, facilitating their being brought in federal court. It does this by
adopting verbatim the standard for judicial review of federal agency action prescribed
by the Administrative Procedure Act: “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.”56 Use of this standard would lower the
current unconstitutionality threshold both by adopting “arbitrary, capricious” in lieu
49 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130-131 (1978).
50 See, e.g., Tabb Lakes Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir. 1993); Broadwater
Farms Joint Venture v. United States, 121 F.3d 727 (Fed. Cir. 1997) (table entry; for text
of opinion, see 1997 Westlaw 428516); District Intown Properties Limited Partnership v.
District of Columbia, 198 F.3d 874, 880 (D.C. Cir. 1999).
51 Ciampitti v. United States, 22 Cl. Ct. 310, 319 (1991).
52 See generally Joseph D. Richards and Alyssa A. Ruge, “Most Unlikely to Succeed”:
Substantive Due Process Claims Against Local Government Applying Land Use
Restrictions, 78 Fla. B.J. 34 (2004).
53 United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa., 316 F.3d 392 (3d Cir.
54 Baker v. Coxe, 230 F.3d 470, 474 (1st Cir. 2000).
55 Id. at 474.
56 5 U.S.C. § 706(2)(A).
of prevalent case law applying more deferential standards, as discussed above, and
by adding the criteria “an abuse of discretion, or otherwise not in accordance with
As to the last criterion, Congress may opt to consider whether every action of
a local land-use agency (or the United States) that is not in accordance with any law,
even state and local ones, should be transformed into a federal constitutional
violation. True enough, not all courts have adopted hands-off standards in due
process challenges to local zoning.57 Still, our research reveals none that has declared
any unlawful action unconstitutional. Moreover, the decisions that are highly
resistant to involving the federal courts in local land-use matters are more recent and
more numerous.58 The Supreme Court too has been resistant to expanding the use
of substantive due process outside the context of so-called fundamental interests
(which currently do not include property interests).
H.R. 4772, like its precedents, raises some broad issues of legal policy.
The first arises from the aversion of federal judges, expressed in numerous
decisions in recent decades, to inserting themselves into local land-use disputes. For
example, the Eighth Circuit cautioned that “We are concerned that federal courts not59
sit as zoning boards of appeals.” The Ninth Circuit has said: “The Supreme Court
has erected imposing barriers in [its leading takings ripeness decisions] to guard60
against federal courts becoming the Grand Mufti of local zoning boards.” And the
Eleventh Circuit echoed with “federal courts do not sit as zoning boards of review.”61
There are many other such judicial statements. Quite recently, the Supreme Court
suggested sympathy with this view, noting that “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.”62
As this report shows, the federal judicial aversion to involvement in local land-
use disputes may be manifested through use of several legal devices — abstention,
certification of state law questions to state courts in the hope of a clarification that
avoids the federal question in the case, declining to find a final decision by the local
57 See, e.g., La Salle Nat’l Bank v. Cook County, 145 N.E.2d 65 (Ill. 1960).
58 An example is Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 467 (7th Cir.
1988), where Judge Posner wrote for the court: “Something more is necessary than
dissatisfaction with the rejection of a site plan to turn a zoning case into a federal case; and
it should go without saying that the something more cannot be merely a violation of state
(or local) law. A violation of state law is not a denial of due process of law.”
59 Littlefield v. City of Afton, 785 F.2d 596, 607 (8th Cir. 1986).
60 Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989).
61 Spence v. Zimmerman, 873 F.2d 256, 262 (11th Cir. 1989).
62 San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323, 347 (2005).
land-use authority, and most significantly, insisting (per Supreme Court directive)
that federal takings claims be litigated first in the state courts, with the consequence
that relitigation in federal court generally is barred under various legal theories.
H.R. 4772 embodies the contrary view, long espoused by property rights
advocates, that takings claims are entitled to the same unobstructed access to federal
courts as other federal constitutional claims, such as those under the First or Fourth
Amendment. They argue that a federal court would never turn away a free speech
claim under section 1983 on the ground that its constitutionality had not first been
tested in state court. And, as noted, they contend that a federal forum should be
available for the adjudication of a federal constitutional right, whether or not the
Constitution requires it. Whether this equating of the Takings Clause and other
constitutional guarantees takes full cognizance of textual differences is another
The broader issue is federalism and the occasional congressional rhetoric to the
effect that the federal government should minimize its involvement in local matters.
H.R. 4772 runs contrary to this ideal, but in doing so has much company. Congress
in recent decades has fostered greater federal court involvement in formerly state
court matters in such areas as product liability, criminal law, and class actions.63 In
the land use area at issue here, Congress has articulated its own standard, enforceable
in federal court, for the application of local land use restrictions to religious
Finally, H.R. 4772 is likely to prompt charges that it will add more cases to an
already overburdened federal judiciary. It is beyond the scope of this report to
address the merits of this potential criticism, nor has it stopped Congress from
approving new avenues for federal court litigation in the past.
63 Class Action Fairness Act of 2005, 28 U.S.C. § 2711-2715, 1332, 1453.
64 Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc-5.