Monday, August 14, 2006

Changing Section 1983 To Allow Land Use Claims In Federal Court

John Baker has a commentary in the Legal Times today (subscription required, unfortunately) discussing the so-called Private Property Rights Implementation Act, which would change Section 1983 to allow landowners to bring land use lawsuits in federal courts.  Here's an excerpt:

Complaining about the high percentage of land-use disputes dismissed by federal judges, developers lobbied hard in 2000 for a bill designed to nullify the U.S. Supreme Court's decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), which required plaintiffs in federal takings claims to seek compensation in state court before filing those claims in federal court. Although it passed the House, the bill met a deserved death in the Senate.

Six years later, Rep. Chabot has resurrected his failed 2000 bill and has tacked on a stunning new section. It would amend the Ku Klux Klan Act of 1871, 42 U.S.C. ยง1983, to require all judges presiding in suits that allege that property rights were taken in violation of substantive due process to judge the defendant's conduct according to 'whether it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'
This statutory expansion of substantive due process claims erases the line between constitutional violations and mistakes in the interpretation or application of state land-use statutes and local ordinances. As then-Judge Samuel Alito Jr. recognized in 2003, 'every appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority.'  Conservative Judge Richard Posner made a similar observation when he wrote, 'If the plaintiffs can get us to review the merits. .. under state law, we cannot imagine what zoning dispute could not be shoehorned into federal court in this way, there to displace or postpone consideration of some worthier object of federal judicial solicitude.'

If the bill becomes law, small communities with the courage to say no to developers would find themselves debating the meaning of their own ordinances in federal courtrooms, often located hundreds of miles away. And because any land-use decision 'not in accordance with law' would thereby become a constitutional violation actionable under Section 1983, developers would finally achieve their long-standing goal: to make taxpayers foot the bill for attorney fees incurred in fights about the meaning and application of local law. . . .

The test for substantive due process violations that judges would be required to follow under this bill does not come from the text or legislative history of the due process clause of the 14th Amendment or from any federal appellate court's current interpretation of substantive due process. Instead, Chabot appears to have borrowed it, word for word, from the Administrative Procedure Act of 1946 -- a statute that has nothing to do with constitutional interpretation or federal court review of state and local government decisions.  The notion that 'the federal government knows best' has never had a place in conservative jurisprudence, particularly in areas traditionally of local concern, such as zoning. But this bill would federalize nearly every kind of local dispute regarding land-use regulation.

The best thing about Chabot's bill is that he has chosen an unconstitutional means of accomplishing his dubious ends.  Congress has authority to create new rights by statute, but this bill does not attempt to do that. Instead, the bill takes a path of greater legal resistance by directing federal judges on how they must read existing language in the U.S. Constitution. It explicitly instructs judges how they are to interpret the 14th Amendment's due process clause.

Ben Barros

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Land Use, Takings | Permalink

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