NCSL Letter to Senate pn States' Rights regarding Land Use and Regulatory Policy

NCSL Letter to Senate on States' Rights regarding
Land Use and Regulatory Policy

Letter sent to all Members of the U.S. Senate

Signed by:

Delegate James Hubbard
Vice-Chair, AFI Environment Committee

July 7, 1998

Honorable Trent Lott
United States Senate
Washington, DC 20510-2403

Dear Senator Lott:

I write on behalf of the National Conference of State Legislatures (NCSL) in opposition to H.R.1534, the so-called "Private Property Rights Implementation Act of 1997." NCSL opposes the bill, even as adjusted by a managers' amendment, because it presents a threat to state and local sovereignty. The real issue here, in our view, is not property rights, but states' rights.

NCSL's opposition to H.R.1534 is based on a policy resolution on "Environmental Federalism," adopted at our November 1997 meeting. As with all NCSL's policies, it was adopted by an affirmative vote of more than three-quarters of the states. The policy resolution passed by this overwhelming vote provides in relevant part: "NCSL opposes any attempt to preempt or circumvent the authority of state courts and local administrative bodies. Proposed federal legislation that would centralize decision-making in the federal courts for compensation for land use and other regulatory actions represents a major threat to our constitutional system of federalism…. Land use and regulatory policy must remain a primary responsibility of the states. The authority of state courts must be preserved."

When state and local land use policies are in dispute, local administrative bodies and state courts are the established and appropriate venue to handle these cases. As the Supreme Court recognized in Williamson County and related decisions, the federal courts are not able to fairly resolve Fifth Amendment "takings" issues until they are "ripe." When the state and local issues are resolved, then the Fifth Amendment issues are defined so that, if necessary or appropriate, the federal courts can effectively render a decision based on the U.S. Constitution.

By prematurely involving the federal courts in matters of state and local property regulation, as contemplated by H.R.1534, the federal courts would be asked to decide cases before they are ripe and implicitly, therefore, would be asked to render political rather than legal judgments on land-use policy questions. This would be dangerous, constituting both a threat to our constitutional system of federalism and to the integrity of our federal courts. Moreover, it is unlikely that federal judges have the resources, time and expertise to resolve the large volume of disputes that deal with local zoning and land use regulation in particular.

There is no justification for federalizing this area of law and policy. Please vote "no" on H.R.1534.

Sincerely,

James Hubbard
Maryland House of Delegates
Vice-Chair, AFI Environment Committee

National Conference of State Legislatures
AFI Environment Committee

Policy:
Environmental Federalism

NCSL staff contacts: Melinda Cross, Bill Waren

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