Developers and other property owners are urging Congress to pass two Bills aimed at forcing the government to pay fair market value for property that is over regulated to the point of inutility. One proposal is called the Private Property Rights Implementation Act, H.R. 1534. A similar Senate Bill, S-1204, is called the Property Owners Access to Justice Act.

The laws allow property owners to sue the government in federal Court once the state or federal government has denied a land use application or a waiver request. It is significant that this law applies to both state and federal agency denials. Examples of such land use denials would be construction permit denials, subdivision denials, and wetlands denials.

These are the kinds of land use applications that can be used by the government to effectively block any development without actually purchasing the property from the owner. The impact: the owner pays taxes, but cannot do anything with the property. In legal parlance, this is referred to as a regulatory taking because the impact of the government denial is the same as if it had taken title to the property without paying for it.

Historically, the government has avoided paying just compensation, as required under the United States Constitution, and State Constitutions, by embroiling the property owner in an administrative nightmare called the exhaustion requirement. Many Courts have held that an aggrieved property owner may not access the Courts until all administrative remedies are first exhausted. This can take many years, can be cost prohibitive, and in many instances, is down right futile.

Many have suggested that governments forces property owners to jump through these hoops with the hope that they will tire and the government will effectively obtain the property for free.

These new laws are aimed at streamlining the process so that an aggrieved property owner may have his or her day in federal Court before the legal process becomes cost prohibitive. In effect, it levels the playing field to give small property owners a realistic opportunity to face the government in Court.

The House Bill is sponsored by Representative Elton Gallegly, whose district includes Oxnard California. The companion Senate Bill sponsor is Senator Coverdell. The Senate Bill was introduced on September 23, 1997. Hearings on the House Bill were recently conducted.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.