Federal Courts Could Referee Neighborhood Zoning Flaps

When the Dolan family of Tigard, Ore., wanted to expand its plumbing and electrical supply business, city officials said they would first have to dedicate about 10 percent of their lot for a bicycle path, green way, and improvements to a storm-drainage system.

Fine, said the Dolans, but you'll have to compensate us for taking part of our property. After a four-year legal battle with local and state regulators, the Dolans finally won their case in the United States Supreme Court.

Such cases could become much more common if legislation passed by the House of Representatives becomes law.

The Private Property Rights Implementation Act would make it easier for landowners and developers to file suit in federal court if they disagree with the decisions of local zoning and land-use boards. The issue is a profound one that has constitutional ramifications, and it is a move that could potentially impact any American who wanted to build a new house or even add a family room to an existing dwelling.

Supporters say it's only fair, since businesses and individuals can be tied up for years (and spend large sums in legal fees) trying to "fight city hall" just so they can build a house or make a legitimate profit on a real estate investment.

"Currently, owners must exhaust all judicial processes, administrative procedures, and appeals at the state level before their case can be considered for a federal court hearing," says Russell Booth, president of the National Association of Realtors. "In practice, the process takes many years and is extremely costly to property owners who are denied use of their land and have to bear the costs of pursuing legal and administrative remedies."

The realtors association, with nearly 720,000 members, and the 190,000-member National Association of Home Builders are the most powerful advocates for the just-passed House bill and a companion measure now being considered in the US Senate.

But powerful critics are lined up as well: the National Governors' Association, the National League of Cities, the US Conference of Mayors, and the attorneys general of 37 states.

In a joint letter to Congress, these opponents called the measure a "significant infringement on state and local sovereignty."

Elizabeth Osenbaugh, solicitor general in the Iowa Department of Justice, warns that it "would drastically expand federal court jurisdiction."

Courts have declared that agencies can regulate land use to protect public health and safety, for example. And private property might be impacted legitimately by things deemed to be worthwhile, such as building a new highway. Agencies might even prohibit development on, say, wetlands or steep hillsides.

But under the Fifth Amendment to the US Constitution, government entities may not take a person's property "without just compensation." Just how that is interpreted, however, involves complicated assessments, subtle readings of the law, and different political and personal values.

"Clearly there is a sharp division of views in this country over the appropriate level of government involvement in land use," says John Humbach, a law professor at the Pace University School of Law in White Plains, N.Y., who specializes in such issues.

In Professor Humbach's view, "The basic problem with the [proposed] law is that it will upset the balance that presently exists between those who desire to see land developed and those who see a need to ensure that, bit by bit, the nation's land base isn't destroyed."

Mr. Humbach and other critics also find it ironic that Republican lawmakers (most of those pushing the proposed law) would weaken the authority of local officials by elevating land-use matters to the federal level - in effect, federalizing local zoning laws.

But at the practical level, supporters say the measure simply restores a constitutional right that has been eroded by bureaucracies.

The bill "is intended to restore some balance to the relationship between those who regulate and those who are regulated," said Carl Goldberg in congressional testimony on behalf of the National Association of Homebuilders. "It responds to the maxim that 'justice delayed is justice denied.' "

Although the bill has passed in the House and is likely to pass in the Senate, it faces a veto fight.

Following the House vote last week, Vice President Al Gore said the measure "would radically change our tradition of working out land use disputes at a local level before hauling local officials into federal court."

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