SUMMARY OF PREPARED STATEMENT OF JOSEPH BARBIERI, CALIFORNIA DEPUTY ATTORNEY GENERAL, IN OPPOSITION TO H.R. 2372
There are good reasons why H.R. 2372 has generated strong bipartisan opposition. The bill proposes to modify the judicially-created ripeness doctrine (1) by establishing that a land use decision shall be deemed final, and therefore subject to a claim that it constitutes a taking, whenever a landowner meets certain minimum requirements and (2) by eliminating the requirement that landowners first must seek compensation using state procedures before resorting to federal court. By promoting the filing of taking claims in federal court, the bill will have a significant impact on local land use regulation because it gives developers greater leverage in the local process and discourages compromise in favor of litigation. This federalization of local land use disputes is particularly unwarranted because there is no empirical proof that existing ripeness requirements have prevented a significant number of meritorious taking claims from being heard.
Even if enacted, it is unlikely that H.R. 2372 would accomplish its objectives. The provisions in the bill that modify the final decision prong of the ripeness doctrine would be ineffective because "finality" is a substantive component of the taking doctrine that cannot be modified by legislation. Likewise, the provision that would eliminate the compensation requirement would be ineffective because a demonstration that one has unsuccessfully sought compensation in state court is a necessary element of a taking claim and not just a procedural hurdle. Issues concerning H.R. 2372's constitutionality and the meaning of its provisions would create more uncertainty in the law, not less.
The regulatory process can always be improved. Land use issues are matters of state and local concern, however, and any needed changes to the process should be sought on a state and local level and not in Congress.
BILL LOCKYER State of California
Attorney General DEPARTMENT OF JUSTICE
1515 CLAY STREET, 20TH FLOOR
OAKLAND, CA 94612-1413
September 13, 1999
PREPARED STATEMENT OF JOSEPH BARBIERI, DEPUTY ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, IN OPPOSITION TO H.R. 2372
I appreciate this opportunity to testify on behalf of California Attorney General Bill Lockyer with regard to H.R. 2372, the Private Property Rights Implementation Act of 1999. The bill raises significant questions about the role of the federal government in matters of traditional state and local concern. Forty State Attorneys General, including former California Attorney General Dan Lungren, opposed H.R. 1534, the predecessor to H.R. 2372. Mr. Lockyer opposes H.R. 2372.
The broad, bipartisan opposition to H.R. 1534 and now H.R. 2372 is striking. For legislation that purports to be only about procedure, it has raised grave concerns among a variety of groups representing a broad range of public interests. These concerns are well-founded. H.R. 2373 violates basic principles of federalism and interferes with the ability of local governments to engage in responsible land use and environmental regulation. This federal interference into areas of traditional state and local concern is particularly unjustified because there is no proof of a significant problem that needs to be resolved.
The following discussion considers (1) why, as a matter of policy, H.R. 2372 represents an unnecessary federal intrusion into matters of state and local concern; (2) why, if enacted, H.R.2372 would fail to accomplish its objective of facilitating the determination of taking claims in federal court; and (3) why any improvements to the local regulatory process must be developed at the state and local level.
I. H.R. 2372 IS AN UNNECESSARY FEDERAL INTRUSION INTO STATE AND LOCAL ADMINISTRATION OF LAND USE AND REAL PROPERTY LAWS
H.R. 2372 Federalizes Local Land Disputes and Interferes With Local Land Use Regulation. H.R. 2372 represents a significant federal intrusion into state and local administration of real property and land use laws, which are areas that have always been recognized as matters of intrinsic state and local concern. See, e.g., Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 402; BFP v. Resolution Trust Corp., 511 U.S. 531, 565 n.17 (1994). Although cast as legislation that eases procedural hurdles in federal court, H.R. 2372 will have a powerful impact on land use planning by local governments and will "federalize" many disputes that are now being worked out at the state or local level. The reasons why should be readily understood.
H.R. 2372 facilitates and encourages the filing of lawsuits in federal court. It does this in two primary ways. First, the bill provides that a taking claim brought under the Federal Civil Rights Act, 42 U.S.C., § 1983, shall be ripe for adjudication upon a final decision rendered by any person acting under color of state law that causes actual and concrete injury. The bill then goes on to define a "final decision," essentially providing that a final decision has been reached if the applicant has made one meaningful application and has applied for one appeal or waiver, unless (1) an appeal or waiver is unavailable (2) the governmental agency cannot provide the relief requested or (3) reapplication would be futile. Second, H.R. 2372 provides that persons may bring taking claims under section 1983 without first having sought compensation in state court. H.R. 2372 thus seeks to lessen or remove the barriers to taking claims found in cases such as Williamson County Regional Planning Com. v. Hamilton Bank, 473 U.S. 172, 194 (1985).
The existing procedural requirements tend to insure that disputes involving state and local planning issues will be decided in state courts. H.R. 2372 would cause more taking claims to be filed in general and would encourage them to be filed in federal court. The broadening of the final decision requirement would mean that more lawsuits may be filed because developers would no longer need to explore project alternatives in the manner required under existing law. The elimination of the requirement that a landowner first seek compensation in state court would mean that taking claims can be filed directly in federal courts. And because H.R. 2372's "final decision" test would only apply in federal court, developers would have a much greater incentive to file in federal courts. Thus, it is no exaggeration to say that H.R. 2372 will increase taking litigation and "federalize" local land use disputes.
This increase in taking claims in federal court will have serious impacts on the ability of local government to engage in responsible land use planning. The threat of having to defend against expensive federal litigation means greater leverage for the developer in the negotiating process. Greater leverage means that local governments, often small entities with limited resources, will be faced continually with a serious dilemma: they will be induced to approve potentially harmful development that they might otherwise have conditioned or denied, or they will be required to undertake the expense of substantial federal litigation. The costs of defending these lawsuits, in turn, will indirectly affect the amount of resources that local governments can devote to planning in the future.
But H.R. 2372 may adversely affect local land use planning in another way. If H.R. 2372 were to become law, developers would be more inclined to go through the motions of complying with the administrative process, doing little more than what would be needed to meet the new ripeness standards. The bill encourages this "take it or leave it" attitude, because it provides developers with less incentive to modify projects to gain approvals. This change in approach, in turn, may affect how local governments work with the regulated community. Rather than adopt conciliatory positions and seek to work with the developer, land use planners may be advised to make their record to avoid a taking and to remain tightlipped in their dealings with applicants when disagreements arise. The local land use process-a process far more amicable than its detractors ever seem willing to acknowledge-will be directed away from negotiation and compromise and towards posturing and gamesmanship.
Consequently, by facilitating the filing of taking claims, H.R. 2372 will cause major and undesirable changes in the way local land use planning is performed. Even if the case could be made that developers are entitled to more leverage in the local planning process, there is no reason that the federal government should be responsible for providing it. If change is necessary, the answer is insisting on greater accountability at the local level. If developers believe that local planners are the problem, they should demand that their governmental employers exert better control. And if they believe that local government officials are the problem, they should work to elect different ones. Federal intervention, however, is not the solution.
H.R. 2372 Is Unnecessary. Despite the urgency attached to the need for reform, the bill's proponents have failed to demonstrate that there is a problem that merits this extraordinary federal intervention into local affairs. The supporting "studies" point to the frequency with which federal judges dismiss claims as unripe and to the length of time that it takes to move disputes through the administrative and judicial process. One recent study chronicles the 79 cases decided in the federal courts during a nine-year period that would have been affected had H.R. 2372 become law. Delaney and Desiderio, "Who Will Clean Up the 'Ripeness Mess,'" The Urban Lawyer, Spring 1999, Vol. 31, No. 2. Even accepting its recitation of the cases at face value-although it is difficult to ignore that the authors do not attribute even a single minute of delay to any action taken by the developer-this study and those like it do not justify federal intervention.
First, the studies disregard that most federal litigation is time-consuming. Although land use cases are likely to persist longer than others because they require exhaustion of an administrative process as well as a legal one, it is likely that a general study of federal litigation would show a large lapse of time between the date that a cause of action first arose and the date that it is reduced to final judgment. Federal litigation is lengthy in an absolute sense, and increasing the number of cases that federal courts must hear, as H.R. 2372 is intended to do, is likely to make the problem worse, not better.
Second, the dearth of cases that would be affected by this legislation is noteworthy-approximately nine cases a year. This limited number of cases does not justify such a dramatic federal initiative. Nor is it a satisfactory response to say that many more lawsuits would be filed if H.R. 2372 were enacted. That simply confirms the worse fears of H.R. 2372's opponents that H.R. 2372 will significantly encourage federal litigation and greatly expand the leverage of developers in the planning process.
Third, even assuming that there are nine federal cases a year that involve a lengthy administrative and judicial process, the information has no probative value. There are thousands of land use decisions made by local governments each year. Seizing upon these statistical outliers-the worst cases in a large sample-proves little.
Fourth, it appears that many of these cases were dismissed as unripe because the plaintiffs failed to exhaust state compensation procedures before filing their federal action. If lawyers and their clients continue to ignore the state compensation prong of Williamson County ten or more years after it was announced, is it fair to profess indignation when federal judges following existing precedent dismiss their taking claims for the failure to pursue state court remedies?
Finally, there is an even more serious shortcoming underlying these studies-the assumption that meritorious taking claims are being dismissed. For example, of the 79 cases in the previously mentioned study, only two appear to have resulted in a finding that a taking occurred. There is a good explanation for this. There is a common misconception that a federal taking claim is an appropriate remedy whenever a developer believes that government has overly restricted the use of property, diminished its value, or made a mistake during the permitting process. But the taking doctrine is not a federal tort act for disgruntled developers. "[I]t is well-established that 'not every destruction or injury to property by governmental action has been held to be a "taking" in the constitutional sense.'" PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 82 (1980), quoting Armstrong v. United States, 364 U.S. 40, 48 (1960).
In fact, a taking claim is a very difficult thing to prove. Even in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Supreme Court acknowledged that instances in which governments deny all economically viable use are "relatively rare" and occur in only "extraordinary circumstance[s]." See also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 (1985) (regulatory takings occur only under "extreme circumstances"). Moreover, local governments generally are scrupulous to avoid taking private property. Once the administrative process is followed to its conclusion, land use agencies rarely deny permits. Although there are disagreements over the scope of permissible development, only in the most unusual cases will government's restrictions on development amount to a taking. Thus, while critics of the California courts frequently complain that its appellate courts have never upheld a damages claim for a regulatory taking, the obvious response is that these claims are difficult to prove and that regulatory agencies take care to avoid unconstitutional restrictions of property. Takings are rare, and H.R. 2372, which purports to leave substantive taking doctrine intact, should do nothing to make proving a taking claim any easier.
Given the lack of empirical evidence that meritorious taking claims are being dismissed from federal courts, this controversial legislation at best would appear to do little more than allow a handful of litigants each year to lose their taking claims on the merits rather than on procedural grounds. Congress should not involve itself in these matters of intense local and state concern just so that unsuccessful litigants who chose to bypass state remedies may feel better for having had their day in federal court.
H.R. 2372 Promotes an Adversarial Relationship Between Government and Developers. H.R. 2372 is divisive legislation. It pits developers as adversaries against government, and demonstrates an implicit disrespect for federal courts, state courts and local governments. Reasonable minds may disagree whether the dual ripeness requirements announced in Williamson County are a good idea, and it is certainly fair to debate the wisdom of the policy. Lower federal courts, however, are bound to follow Williamson County. It does not advance the debate to characterize federal judges as condescending or motivated by concerns about their workload. E.g., Hearings Before the Subcommittee on Courts and Intellectual Property on H.R. 1534, 105TH Cong., 1st Sess., p. 67 (testimony of Mandelker). It is ironic that this legislation, while seeking to make it more difficult for federal courts to dismiss cases on finality grounds, simultaneously encourages developers to bypass state courts and file more taking claims in federal court. This means that federal courts must adjudicate even more taking cases that, according to their detractors, they are unwilling to hear in the first place. More federal judges, not more cases, might be a better solution.
The bill's implicit criticism of federal judges makes its treatment of state courts even more inexplicable. There is no evidence that state courts are inhospitable to meritorious taking claims or that they subject litigants to needless or unjustifiable delay. Indeed, given the failure of developers to prove their taking claims in federal court, a more thoughtful approach might encourage their resort to local forums to resolve what, after all, are essentially local disputes. Instead, by eliminating the state compensation exhaustion requirement, H.R. 2372 allows developers to bypass state courts. And, having relaxed finality standards in federal court, H.R. 2372 affirmatively encourages filings in federal court, as applicants seek to take advantage of relaxed procedural rules that would apply in federal courts alone.
As for local governments, little needs to be said in their defense. Local planners each day are asked to interpret complex zoning and land use plans and comply with state environmental disclosure laws, and then apply these laws and policies to sophisticated development schemes with a broad range of physical and social impacts. Local governments, in making their ultimate use determinations, must balance the command of the law and the wishes of the developer with the concerns of other public and private interests who may be affected by the project. Development projects often must undergo multiple levels of administrative review, which allows a project to receive the full attention it deserves by specialized decision makers, as well as afford developers an administrative recourse when they are displeased with the outcome.
It is inevitable that disagreements over policy and the interpretation of the law will occur during this process, and that those disagreements will add to the time and expense associated with it. While individual planners justifiably may be criticized in individual cases, the dissatisfaction of many developers about cost and delay may result from a general skepticism about the value of modern land use and environmental regulation, as well as a reluctance to accept that there is a reciprocity of benefits to be gained from the regulatory process. These larger concerns about the wisdom and administration of local land use laws and policies must, of course, be directed to state and local governments. Political and philosophical disputes about local land use matters are not a federal concern, and it is inappropriate for the federal government to intervene by facilitating federal lawsuits that will alter the balance in the local regulatory process.
H.R. 2372 Discriminates In Favor of Developers. Finally, this legislation has been fairly criticized for elevating the rights of developers above other deserving civil rights claimants. This criticism has been made frequently with regard to the abstention provisions of the bill, which restrict abstention in real property cases and not others. There are several other observations on this point.
Most land use disputes involving state and local governments currently are litigated in state courts. A garden-variety challenge to the legality of state and local regulatory action under state and local laws is heard in state court. See, e. g., Cal. Code Civ. Proc., § 1094.5. Moreover, when third parties are dissatisfied with government action approving development projects, their remedies are almost exclusively under state law and in state court. See id. Although proponents of H.R. 2372 insist that developers who assert taking claims are necessarily entitled to present their claims in federal court, that is not necessarily the case. Under current law, taking claims against the States or their agencies must be filed in state court, see Will v. Michigan (1989) 491 U.S. 58, 71; even were H.R. 2372 enacted, this group of taking claims would remain relegated to state court. The requirement that persons alleging taking claims against local governments must first present their compensation claims in state courts makes them no worse off than their counterparts who allege that the State itself has engaged in a taking.
Therefore, most land use disputes involving state and local governments, many of which challenge the constitutionality of government action under the Fifth and Fourteenth Amendments, are now being resolved in state courts. There is no evidence that state courts are unable to resolve these disputes and there is no compelling reason why Congress must now federalize land use disputes for the group of dissatisfied developers unwilling to present their claims in state court.
The real issues involving modern land use regulation go far beyond those addressed in H.R. 2372, and any problems with the system must be addressed at the local level. Proponents of H.R. 2372 simply have not made the case that the federal government, in the guise of a procedural statute, should intercede on behalf of landowners in matters of almost exclusive state and local concern.
II. H.R. 2372 WOULD NOT CORRECT THE PROBLEM THAT IT PURPORTS TO SOLVE
The technical deficiencies of H.R. 2372 and its predecessor have been addressed by many of the legislation's opponents. To view these issues in a slightly different way, the following discussion considers how the federal courts might interpret H.R. 2372 should it become law. The conclusion is that H.R. 2372's attempted modification of the finality requirement and its elimination of the compensation requirement would be ineffective, and that H.R. 2372 would create even more uncertainty in the law and frustration for those who support its enactment.
Existing Ripeness Doctrine. The Supreme Court's cases "uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it." MacDonald, Sommer and Frates v. County of Yolo, 477 U.S. 340, 351 (1986). There are two components of the ripeness doctrine. A landowner alleging a taking in federal court must show that (1) the government entity has issued a final and authoritative decision with regard to the application of its regulations to the proposed use of the landowner's property and (2) the landowner has requested compensation through state procedures. Williamson County, 473 U.S. at 194; see MacDonald, Sommer and Frates, 477 U.S. at 348. In order to establish that the agency has made its "final decision" for the purposes of the ripeness doctrine, the applicant must allege an initial rejection of a development proposal and that there has been a definitive action by the agency indicating with some specificity what level of development will be permitted on the property. (MacDonald, Sommer and Frates, 477 U.S. at 351; Landmark Land Co. v. Buchanan, 874 F.2d 717, 720 (10th Cir. 1989). To obtain the agency's definitive position, the applicant at a minimum must submit at least one formal development plan and, after its rejection, seek a variance or propose a less intense use. See, e.g., Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1541 (11th Cir. 1991); Lake Nacimiento Ranch Co. v. County of San Luis Obispo, 841 F.2d 872, 876 (9th Cir. 1985), cert. denied, 488 U.S. 827 (1988). This has been referred to as the "MacDonald reapplication requirement." See Town of Sunnyvale v. Mayhew, 905 S.W.2d 234, 247 (Ct.App.Tex. 1994).
The Modification of the Finality Requirement Would Be Ineffective. Dissatisfied with these existing rules, the advocates of H.R. 2372 seek to obtain certainty through a mechanical test for determining when a taking claim is ripe. Presumably, a federal court would be required to decide a taking case on the merits if the landowner could demonstrate compliance with the test, regardless of how far along the administrative process had actually progressed.
Proponents of H.R. 2372 seriously underestimate the force of the ripeness doctrine. They perceive the doctrine as a procedural obstacle created by the courts to avoid deciding taking claims. By reducing the federal courts' discretion to determine finality, the argument goes, access to the federal courts will improve and many more taking claims will be decided. This view of finality misperceives the critical role that the ripeness doctrine plays in the adjudication of taking claims.
Finality in the context of a taking claim has two different but overlapping dimensions. First, it serves to define when a taking claim is ripe for adjudication. Second-and this is the aspect overlooked by H.R. 2372's adherents-it helps define whether a taking has in fact occurred. That is, there can be no injury and therefore, no taking, unless the government has taken final action. Furthermore, without a truly final decision, a court is simply not in a position to evaluate the nature of governmental action said to effect a taking.
This second dimension of finality is evident in the cases. Consider how the Supreme Court described the need for finality in Williamson County:
"Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause
. . . . [The factors specified in the Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)] cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. " Williamson County, 473 U.S. at p. 191 (emphasis added).
Later, the Court said:
"It is sufficient for our purposes to note that whether the "property" taken is viewed as the land itself or respondent's expectation interest in developing the land as it wished, it is impossible to determine the extent or the loss or interference until the Commission has decided whether it will grant a variance from the application of the regulations." Williamson County, 473 U.S. at 192 (emphasis added).
The Court made a similar observation in MacDonald when, in rejecting a taking claim as unripe, it stated:
"It follows from the nature of a regulatory taking claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone "too far" unless it knows how far the regulation goes. . . . No answer is possible until a court knows what use, if any may be made of the affected property." MacDonald, Sommer and Frates, 477 U.S. at 348, 350 (emphasis added).
It follows from this that there can be no constitutional injury unless there has been a final decision in this second, substantive sense. This point was illustrated in Landgate v. California Coastal Commission, 17 Cal.4th 1006 (1998). In that case the landowner contended that the Commission had taken his property because it denied a development permit for the construction of a house in the belief that the lot on which the development was proposed was illegally created. Even though the Commission's belief in the lot's illegality turned out to be mistaken, the Court found that the temporary delay occasioned by the Commission's erroneous decision did not constitute a taking. Treating the taking claim as ripe, the Court found no constitutional injury because the Commission's erroneous decision did not represent a truly final decision on the use of property: "The Commission could not be said to have reached a final and authoritative determination of the development on Landgate's lot until after the dispute about the legality of the lot had been resolved." Id. at 1010. There are other cases where taking claims have been denied on the merits where, due to a mistake in the regulatory process, the agency had not reached a truly final decision, even though the matter was considered ripe for review. E.g., Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 803 (Fed.Cir.1993); Smith v. Town of Wolfeboro, 615 A.2d 1252 (N.H.1992).
The final decision requirement therefore is essential to determining whether a taking has occurred and whether there has been injury in fact. This has important implications for H.R. 2372 and explains why H.R. 2372's imposition of arbitrary standards for determining ripeness is unlikely to effect any significant change.
How might a federal court analyze such a taking claim under H.R. 2372's finality standards? There are two likely possibilities. First, a court may find that H.R. 2372 impermissibly dictates the manner in which the court must decide cases. See Clark v. Valeo, 559 F.2d 642, 650-651 n.11, aff'd, 431 U.S. 950 (1977) ("To the extent this language may be read as suggesting a view that Congress may 'command' the judiciary to act contrary to the rules relative to ripeness the Supreme Court has developed 'for its own governance in the cases confessedly within its jurisdiction' . . . we respectfully disagree," citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (Brandeis, J., concurring)). If the Supreme Court has said that "it is impossible" or a "cannot determine" whether a taking has occurred unless there has been a truly final decision that informs the court as to how far the regulation goes, it is questionable whether a court may be compelled to reach a decision on the merits by legislation that arbitrarily determines what constitutes a final decision. If "no answer is possible," then no answer is possible, regardless of legislative insistence that the courts look for one. Moreover, a court in these circumstances might question whether H.R. 2372 impermissibly intruded on the judiciary's paramount authority to interpret the Constitution, at least to the extent that H.R. 2372 purports to redefine the manner in which a court must decide the merits of a constitutional taking claim.
Second, a court might construe H.R. 2372 narrowly and assume that there was no intent to dictate how the courts should analyze a taking claim. For the reasons already discussed, however, the court still would have to analyze whether an agency had rendered a truly final decision to determine the impact of government's regulations and whether a taking has occurred. This will lead to the very same outcome as under existing law-the developer will fail to establish a taking claim because he or she would fail to show how far the agency's regulations went. If, for example, a developer claimed that an agency's decision to deny a 100-unit subdivision effected a taking but failed to explore other alternatives for project approval, a court would have no way of ascertaining whether the agency's action constituted a taking without knowing whether the agency would have approved some lesser development. If this information would have been required under the old Williamson County/MacDonald standards-and the Court tells us that the nature of the inquiry demands it, see Williamson County, 473 U.S. at p. 191-the taking claim would fail even if the action were deemed "ripe."
The Elimination of the Compensation Requirement Would Be Ineffective. H.R. 2372 also attempts to modify existing ripeness standards by eliminating the second prong of Williamson County which requires that taking claimants demonstrate that they have unsuccessfully attempted to obtain compensation using state procedures. The constitutional issues raise by the elimination of this requirement was the subject of much discussion with regard to H.R. 1534. As critics have pointed out, eliminating the procedural hurdle does not solve the problem because the compensation requirement is an element of a cause of action for an uncompensated taking. The Court stated in Williamson County:
"If a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation . . . . [B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a section 1983 action." Williamson County, 473 U.S. at 195, 195 n. 13.
Were H.R. 2372 enacted, a court likely would view efforts to eliminate the Williamson County compensation requirement in one of two ways. First, it might interpret the provision as an effort to redefine substantive elements of the taking doctrine and declare it an unconstitutional encroachment on judicial authority to interpret the constitution. Or, it could view the provision as procedural only, but dismiss the taking claim on the merits for having failed to state one of the necessary elements of a taking claim. Either way, H.R. 2372 would not accomplish its objective.
It is also likely that a court would reject any claim that the second prong of Williamson County was dicta. The Supreme Court itself has frequently reaffirmed Williamson County on this point, Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733-734; Presault v. ICC, (1990) 494 U.S. 1, 11 (1990); MacDonald, Sommer and Frates, 477 U.S. at 350, and numerous lower federal courts have enforced the requirement. In any event, the Supreme Court's recent decision in City of Monterey v. Del Monte Dunes, Ltd., 119 S. Ct. 1624 (1999) should end the discussion. There, in its consideration of a right to a jury trial, the Court reaffirmed the rule in Williamson County that the denial of compensation is an element of a taking claim and that, unequivocally, a "federal court cannot entertain a taking claim under section 1983 unless or until the complaining landowner has been denied an adequate postdeprivation remedy." Del Monte Dunes, Ltd., 119 S.Ct. at 1642-44.
H.R. 2372 Would Create More Uncertainty in the Law. Proponents of H.R. 2372 argue that its ripeness provisions are necessary to promote certainty in the law. It is undoubtedly true-as would be the case for any legal doctrine that has been interpreted by hundreds of courts-that courts have not uniformly interpreted the doctrine. The perceived uncertainty in the application of the ripeness doctrine, however, is inherent in the nature of the taking doctrine itself. Because the taking doctrine itself is the product of "essentially ad hoc, factual inquiries,'' Lucas, 505 U.S. at 1015, citing Penn Central Transp. Co., 438 U.S. at 124, it is not surprising that the ripeness element of the taking doctrine has developed in much the same fashion.
H.R. 2372 in any event would not afford the certainty promoted by its supporters. As just discussed, serious constitutional issues have been raised regarding the authority to legislate when a decision becomes final and to dispense with the compensation requirement. It is easy to foresee a variety of approaches among the federal circuits as they labor to discern the legality of this legislation, and there is little doubt that the Supreme Court itself ultimately would need to resolve these issues. Until H.R. 2372's legality is finally resolved, developers filing takings claims in federal court would have little assurance that they could rely on H.R. 2372's revision of the ripeness doctrine, and would face even further delays if they guess wrong.
Moreover, ignoring its potential constitutional deficiencies, the language of H.R. 2372 contains a number of interpretive problems that will lead to further uncertainty. As one example, section (e)(2)(A)(i) of H.R. 2372 requires that applicants obtain a "definitive" decision, in addition to following the other administrative steps for obtaining a final decision in subsections (A)(ii) and (A)(iii). "Definitive," however, is not defined. In Williamson County, the Court used the term "definitive" interchangeably with "final." Williamson County, 473 U.S. at 191, 192. Thus, the reference to a "definitive" decision in section (e)(2)(A)(i) could be read as importing the very judicial finality standards that the bill tries to avoid in sections (A)(ii) and (A)(iii). This may not be the drafters' intent, but it leaves uncertain exactly what "definitive" means.
As another example, section (e)(3) provides that "For purposes of this subsection, a final decision shall not require the party seeking redress to exhaust judicial remedies provided by any State or territory of the United States." This is the provision of the bill that is designed to eliminate Williamson County's compensation requirement. As drafted, however, the provision pertains only to the definition of a "final decision." Obtaining a "final decision" satisfies only the first prong of Williamson County; the need for exhausting state compensation procedures is separate and independent from the final decision requirement. On its face, therefore, section (a)(3) accomplishes nothing: the final decision requirement of Williamson County never required that applicants needed to pursue their compensation remedy in order to obtain a final decision. Again, this may not be the drafters' intent, but it creates further uncertainty about the bill's meaning.
Other concerns about ambiguities in the language of H.R. 2372 previously have been raised. The bill excuses the need to seek a waiver or appeal if "it cannot provide the relief requested." This phrase might be read to excuse a waiver if the developer asserts the need for monetary relief (because agencies ordinarily have no power to grant relief), or if the developer seeks some other extreme relief outside the scope of what the agency is authorized to provide. Similar concerns have been raised about the use of the word "infringed" in section (e)(2)(A)(i) and the phrase "taking into account" in section (e)(2)(A)(ii).
In summary, H.R. 2372 would not cure any of the perceived problems with the regulatory system or the access of landowners to the federal courts. Instead, it would create more uncertainty and more unproductive, protracted and expensive litigation.
III. ANY CHANGE TO THE REGULATORY PROCESS OF LOCAL GOVERNMENTS MUST OCCUR AT THE STATE AND LOCAL LEVEL
Given the complexity of modern life, it is inevitable that there will be "horror stories" of individual experience with the courts or the regulators. These stories are unfortunate but understandable. Sophisticated land use and environmental regulation is necessary to insure the orderly use of land and resources and to minimize human impact on a fragile environment. Moreover, the overburdened judicial process is lengthy, especially where it becomes necessary to employ the appellate process. And, because human beings of varying degrees of competence and diligence administer these systems, the results sometimes will be uneven.
Even when the system works efficiently, the combination of both the administrative and judicial processes will be time-consuming. Difficult issues of interpretation often arise, and they frequently require that courts send the affected parties back through the regulatory process or through further trial court proceedings before a matter can be finally resolved. Few people enjoy being caught in the middle of this, but sometimes this is the way law is made and clarified for the next group with similar problems.
When compared to the many thousands of land use decisions made every year and the typical length of time that the judicial process requires, the stories of extreme delay are isolated. There is no evidence that the land use system does not work reasonably well or that it has failed to improve the quality of life. Nevertheless, government needs to remain aware that its actions affect the lives of real people and to minimize, where reasonably possible, the time and inconvenience of going through the process. But there is no justification for a federal response to remedy these relatively few cases, especially where H.R. 2372 is unlikely to work as intended and where federal interference would alter the land use process by upsetting the existing balance between government and the regulated community.
If changes need to be made, they must be made at the state and local level. In California, many changes to expedite the administrative and judicial process have already been made. The Permit Streamlining Act, Cal. Gov. Code §§ 65920 et seq., requires that agencies decide the completeness of applications and approve or disapprove projects within specified time limits, or else risk that the application will be deemed approved by operation of law. The California Coastal Act requires that hearings be conducted within 49 days of the filing of an application, Cal. Pub. Resources Code § 30621, and, to keep the process moving, provides that any legal challenges be brought within 60 days after the Coastal Commission's decision, id., § 30601. The Coastal Act also forbids the taking of property, id., § 30010, and gives the Commission the flexibility to prevent a taking in situations where strict application of its substantive policies might have resulted in the denial of all economically viable use.
The California judicial system also promotes expeditious decision making. It requires that all judicial decisions, including appellate decisions, be made 90 days after argument. The California system also provides for rapid review of administrative decisions under its procedure for administrative mandamus. Cal. Code Civ. Proc, § 1094.5. Mandamus actions are conducted on an administrative record and often are heard on the court's law and motion calendar. In one recent case, for example, a party filed an action in April 1999 challenging the Coastal Commission's appellate authority. The Commission staff rapidly assembled a 21-volume administrative record and the parties agreed to an expedited briefing schedule. The matter was heard on the merits on August 25, 1999, and the trial court issued its judgment clarifying the manner in which the Commission should exercise its appellate jurisdiction. The Commission then rescheduled the matter for final disposition at its September 1999 meeting.
Much has been done and still can be done to streamline the administrative and judicial process. The impetus for change, however, must be directed at the state and local level. H.R. 2372 only tinkers at the margins of the perceived problems. This federal intrusion into local land use administration is unjustified and diverts attention from theareas where this much time and energy would be better spent.
H.R. 2372 offends principles of federalism because it injects the federal courts into resolving local land use disputes, matters of traditional state and local concern that typically are resolved in state courts. H.R. 2372 also upsets the balance between local governments and landowners by facilitating lawsuits and the threats of lawsuits by disappointed developers. It will change the dynamics of the land use process by encouraging both developers and government to act with litigation in mind, rather than promoting conciliation and compromise in the regulatory process. The need for this divisive federal incursion into local affairs remains unproven, justified as it is by inconclusive evidence from a tiny fraction of all land use decisions in this country. Moreover, the "procedural" problems that H.R. 2372 purports to correct are linked to the very core of the taking doctrine, a constitutional matter within the province of the courts. This legislation would create even more uncertainty than is believed to exist in the present system.
For these reasons, the California Attorney General strongly opposes H.R. 2372. Thank you for the consideration of our views.