PROPERTY RIGHTS: HOUSE JUDICIARY COMMITTEE REPORTS H.R. 2372
CRS Report for Congress
Property Rights: House Judiciary Committee
Reports H.R. 2372
Robert Meltz
Legislative Attorney
American Law Division
On March 9, 2000, the House Committee on the Judiciary reported favorably H.R.
2372. The bill, titled “Private Property Rights Implementation Act of 2000,” is aimed
principally at lowering the threshold barriers of ripeness and abstention encountered when
land owners file in federal court challenging local government actions as “takings.”1
Under the Fifth Amendment’s Takings Clause (which applies to state and local, not only
federal, actions), private property may not be “taken” for public use without just
compensation.
It is well-settled that takings may be effected not only by government appropriation
or physical invasion of private property, but by use restrictions as well. When use
restriction (as, typically, by local zoning) has a sufficiently severe impact on a property’s
economic use, courts find that a “taking” has occurred, and that the regulating government
must pay compensation.
Takings challenges to local government action may be brought in state or federal
court. In federal court, the plaintiff must surmount a wider array of threshold issues than
in state court before the taking issue can be reached. Some of these issues concern
“ripeness.” Ripeness doctrine requires that before a taking claim is heard by a federal
court, the plaintiff must obtain a “final decision” from the land-use regulating body
(including resubmission of scaled-down proposals in some cases, and pursuit of any
possible variances), and that any avenues for obtaining compensation from the state courts
be exhausted. Another threshold issue often encountered in takings cases against local
government is abstention, a doctrine that may lead a federal court to decline exercising
jurisdiction in deference to state forums for resolving the matter.
Studies show that a goodly portion of takings cases brought in federal court against
local government land-use regulation are dismissed on ripeness or abstention grounds.
H.R. 2372 aims to lower or eliminate these barriers, so that landowners have a federal
forum for resolving takings claims on the merits, as well as a state one. H.R. 2372 is thus
a “process” bill; it disavows any intent to change substantive takings law.
1 The bill applies to federal government actions as well, but this is not the bill’s focus and has been
universally disregarded in the congressional debate.
Congressional Research Service ˜ The Library of Congress
More specifically, H.R. 2372 targets federal district courts handling real-property-
related claims under 42 U.S.C. section 1983 (a common vehicle for bringing takings
actions). The bill instructs such courts not to abstain in an action lacking any claim of a
state law violation, if a parallel state proceeding is not pending. As for ripeness, the bill
sets out when state proceedings shall be deemed to result in a “final decision,” at which
point the federal judge must find the claim ripe. A final decision exists, the bill says, once
“one meaningful application” (as defined in case law) has been disapproved, and, if
available, “one appeal and one waiver” also. However, if the initial disapproval explains
in writing the development on the property that would be approved, the landowner, to
achieve ripeness, must submit another meaningful application “taking into account” that
explanation, and have that resubmission be disapproved, followed by “one appeal and one
waiver,” if available, and their disapproval. Appeals and waivers need not be applied for
if doing so would be “futile.” The local government’s failure to act on any of these
applications “within a reasonable time” would constitute disapproval.
Also, H.R. 2372 would eliminate entirely the ripeness rule that before coming to
federal court, the landowner must exhaust opportunities for state-court compensation.
While formally only a “process” bill, H.R. 2372 raises important issues. These areth
discussed at length in an earlier CRS report on a very similar bill in the 105 Congress
(H.R. 1534).2 Here, we briefly note some of the major ones.
1. Federalism. In some instances, the bill may result in federal courts involving
themselves in local land use matters earlier than they would otherwise. Bill opponents say
this contradicts congressional statements about respecting state and local rights, and slights
the state courts. Bill supporters contend that the bill merely places the Takings Clause on
an equal footing with other guarantees in the Bill of Rights.
2. Effect on developer/local government negotiations. Would H.R. 2372 give added
weight to a developer’s threat to bring a taking claim if the local government did not
approve its desired development scenario? Would local governments, particularly small
ones, find it more burdensome to litigate in federal court than state court?
3. Federal judges. Federal judges often express an aversion to getting involved in
local land use matters, or note the already heavy workload of the federal courts.
4. Adequacy of the record. What would be the effect of requiring federal courts to
decide takings claims on the merits in the absence of a detailed record?
5. State-exhaustion prong of ripeness. Is the state-exhaustion requirement
constitutionally based? If so, Congress may not eliminate it by statute.
The amendments to H.R. 2372 adopted in subcommittee and committee (all offered
by Rep. Canady) are of a minor or technical nature. All Democratic amendments were
rejected. A Senate bill, S. 1028, contains provisions similar to H.R. 2372, plus another
process-type approach restricted to takings claims against the United States. No action
has been taken on S. 1028.
2 Robert Meltz, “Property Rights” Bills Take a Process Approach: H.R. 992 and H.R. 1534 (CRS
Report 97-877, updated June 24, 1998), at 11-29.