Federal takings bill raises anger at the local level | AspenTimes.com
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Federal takings bill raises anger at the local level

Sarah S. Chung

Local environmental groups and the Aspen City Council are up in arms over a federal property rights bill that proposes to involve federal courts much sooner in the land-use appeal process.

Called the Private Property Rights Implementation Act of 1999, H.R. 2372 would radically change the way local land-use decisions are appealed. In short, the bill, if approved, would shortcut an appeal from the state court system into federal court.

The bill is being introduced as a means “to simplify and expedite access to the Federal courts for injured parties whose rights and privileges, secured by the United States Constitution, have been deprived.”

But City Councilman Terry Paulson objects to federal authorities potentially dictating what should happen at the local level.

“It’s like the Constitution’s being used against us,” Paulson said. “For 200 years the Constitution was used to protect the common man. Now it’s like, if you have a lot of money, you can do whatever you want. This could turn into a pretty ugly situation.”

One co-sponsor of the bill, however, is Pitkin County’s representative, Congressman Scott McInnis. According to McInnis spokesman Josh Penry, the bill simply provides another “channel to pursue compensation from an improper takings.”

“The way the law is currently written, a lot of times a citizen is denied due right to seek redress,” said Penry, who called the current system “unduly cumbersome. …”

The congressman is a strong supporter of property rights.”

An appeal to a decision made by a local jurisdiction currently must “exhaust judicial remedies provided by any State” before the case enters the federal court system. That generally means an appeal must go through local district court, court of appeals and the state Supreme Court before it becomes a federal case, said Herb Klein, an Aspen attorney who specializes in land-use cases.

“Now it’s really tough to get to federal court on land-use cases,” he said.

If approved, H.R. 2372 could make it possible to take a denial at the city or county level straight to federal court.

One provision in the bill allows that “the party seeking redress shall not be required to apply for an appeal [within state] … if the application or reapplication would be futile.”

The bill also directly overturns the current law by noting a party seeking redress need not “exhaust judicial remedies” in the state before taking a case to federal court.

“Federal courts ultimately have the final say, but there has been a lot of back and forth volleying between state and federal courts,” Penry said. “We’re not saying federal courts are better, we’re just trying to streamline the process.”

But one local property owner questions how a federal judge could make a better land-use decision than city, county or state officials who are bound to be more familiar with the property and the surrounding area.

“My guess is that taking power away from local authorities is a bad idea,” said Aspen Airport Business Center owner and North Forty developer John McBride.

At the local level, Paulson has rallied enough support from fellow council members to phone in the council’s objection to H.R. 2372 and also send a letter protesting the bill.

Paulson was made aware of the proposed legislation through an e-mail sent by the Sierra Club. It said: “The bill would empower big developers to use the threat of premature, costly federal court litigation to coerce small communities into approving projects that will harm homeowners and the environment.”

The bill is scheduled to be debated on the floor of the House of Representatives today. It has 112 co-sponsors, with McInnis and U.S. Rep. Bob Schaffer being the two co-sponsors from Colorado.

“This is clearly a direct attack on the smart-growth movement,” remarked former county commissioner Michael Kinsley. “The general intrusion of the federal government on local issues is a profound contradiction to most conservative thinking. Those who most support this should be the least.”


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