4772 , styled the Private Property Rights Implementation Act of 2006, combines process and substance. Its process provisions would ease or eliminate certain current hurdles to a federal takings or substantive due process claim being adjudicated in federal court on the merits, where government interference with property rights is alleged. Its substantive provisions would have the effect of facilitating success on the merits when such claims are brought, through "clarifications" of those same takings and substantive due process constraints. The bill was reported by the House Committee on the Judiciary on September 14, 2006 and passed the House on September 29, 2006 (231-181). Provisions of the Bill

H.R. The process features do not affect the property owner's access to state courts for adjudicating those federal claims, which courts remain generally available. For example, H.R. § 1983 (against political subdivisions of states) or against the United States, where based on property deprivation, are subject to a "clarification": the judgment shall be based on whether the government action is " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. " Moreover, it is likely that this would preclude abstention in most cases since plaintiff, to ensure that abstention does not occur, would have only to delete any claims of state law violation from his complaint. Definition of "Final Decision"

The same Supreme Court decision that debuted state exhaustion in 1985 imposed a second ripeness requirement on federal takings claims: "a claim that the application of government regulations effects a taking ... is not ripe until the government entity ... has reached a final decision regarding the application of the regulations to the property at issue." Such give-and-take between developer and regulating authority is currently a routine part of the land use control process in this country. More recently, the Court has reaffirmed that "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary" and similarly that "it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees." Moving past the constitutionality issue in sections 5 and 6, the following compares the three prescriptions therein with existing takings and substantive due process caselaw, to indicate the degree to which H.R. First, it would apply the exaction takings test to conditions as well as exactions. As above, the lower courts are divided on the reach of the exactions takings test here—some saying that only physical dedication exactions are covered, others that monetary assessments are covered also. "Clarification" of Status in Takings Law of Subdivided Lots

Takings law dictates that a court, in deciding whether a regulatory taking has occurred, must look at the property owner's loss relative to the value she retains —requiring the court to define the "parcel as a whole" for assessing that residual value. 4772 would lower the bar for federal substantive due process claims involving property, facilitating their being brought in federal court. As this report shows, the federal judicial aversion to involvement in local land-use disputes may be manifested through use of several legal devices—abstention, certification of state law questions to state courts in the hope of a clarification that avoids the federal question in the case, declining to find a final decision by the local land-use authority, and most significantly, insisting (per Supreme Court directive) that federal takings claims be litigated first in the state courts, with the consequence that relitigation in federal court generally is barred under various legal theories.
H.R. 4772, titled the Private Property Rights Implementation Act of 2006, passed the House in September 2006 and may, if the Senate acts, move forward during the 2006 lame-duck session.
The bill combines process and substance. The process provisions would ease or eliminate four current hurdles to a federal takings or substantive due process claim being adjudicated in federal court on the merits—in those cases where government interference with property rights is alleged. Those hurdles are abstention, the takings ripeness requirements that the plaintiff must first obtain a final decision from the land-use control agency and exhaust state court remedies, and certification of state law questions to the state courts. The bill does not affect the property owner's access to state courts, which are also available to vindicate such claims.
The bill's limitations on federal court abstention would allow the plaintiff to preclude abstention by not including any claim of state law violation. The bill's elimination of the current state exhaustion prerequisite for a ripe takings claim may well be beyond Congress's authority if, as sound argument suggests, that prerequisite is constitutionally based. The final decision definition in the bill involves a trade-off between easing the procedural burdens on the property owner on the one hand, and the routine give-and-take of local land-use negotiations and informational needs of courts for applying the takings test on the other.
The substantive provisions of the bill provide "clarification" of takings and substantive due process constraints on government interference with property rights. As for federal takings claims, the bill declares that the Supreme Court's test for when exaction conditions on development constitute takings shall apply broadly—to both exactions and other conditions on development, to both adjudicatory and legislative conditions and exactions, and to both land dedications and monetary fees. Also, when a taking claim involves a subdivided lot recognized as an individual property unit under state law, that lot shall be deemed the "parcel as a whole" in the takings analysis. As for substantive due process claims, the bill says that the criterion is whether the government action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
The key issue with the substantive provisions is whether they are constitutional. Suggesting unconstitutionality is the principle that it is the responsibility of the courts, not Congress, to define the substance of constitutional guarantees. But there are plausible counter-arguments—e.g., that the bill is merely a statutory overlay to constitutional guarantees, not a redefinition of them. Leaving aside the constitutionality question, the provisions expand the circumstances in which property owners can prevail on takings and substantive due process claims. For example, in requiring substantive due process claims to be assessed on a "not in accordance with law" standard, the bill significantly lowers the bar relative to existing judicial standards for such violations, which are typically more deferential to government.