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Res 19-98 RESOLUTION NO. 19-98 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, IN OPPOSITION TO LEGISLATION CURRENTLY PENDING IN THE UNITED STATES CONGRESS RELATED TO THE EXPANSION OF FEDERAL COURT JURISDICTION TO INCLUDE CONSIDERATION OF LOCAL ZONING AND LAND USE APPEALS WITHOUT HAVING PRIOR STATE COURT CONSIDERATION; DIRECTING THE CITY CLERK TO PROVIDE COPIES OF THE RESOLUTION TO APPROPRIATE OFFICIALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the United States Congress is currently debating HR 1534, a bill which would permit property owners to file a lawsuit in federal court alleging an unconstitutional taking of property as a result of action by local legislative bodies and/or zoning boards; and WHEREAS, under current law, the federal courts do not accept jurisdiction over such local takings cases unless all local zoning appeals and state court procedures have been exhausted; and WHEREAS, under the legislation now before Congress, aggrieved parties could take their cases immediately to federal courts, preempting local and state law procedures; and WHEREAS, by increasing the frequency of federal court litigation, the proposed legislation also could impose significant new litigation costs on cities such as Delray Beach, Florida, its taxpayers, and other governmental agencies; and WHEREAS, due to the potential cost of increased litigation which will likely result if the Congress and President adopt this legislation, the City Commission for the City of Delray Beach opposes any change to the current law including the current legislation. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the above recitals are adopted by the Delray Beach City Commission, and the City of Delray Beach opposes HR 1534, as it alters the jurisdiction of federal courts as it relates to takings litigation. Section 2. That the City Commission of the City of Delray Beach, Florida, urges other local governments to adopt a resolution opposing legislative changes to the federal courts takings jurisdiction. Section 3. That copies of this resolution be provided to appropriate officials. Section 4. That this resolution shall become effective immediately upon passage. PASSED ~ ~OPTED in special session on this the 10th day of March, 1998. ATTEST: City Clerk - 2 - Res. No. 19-98 [IT¥ DF DELRII¥ BEIII:H I~[TY ATrORNEY'$ I}FFII~£ FACSIMILE200 NW lst 407/278-4755AVENUE- DELRAY BEACH, FLORIDA 33444 DB~.~Y BEACH Wriler's ~ Liae: (~61) 243-'/090 1993 TO: David T. Harden, City Manager FROM: David N. Tolces, Assistant City Attorne'~ SUBJECT: Resolution Opposing Federal Takings Legislation Attached is a resolution for the City Commission to consider regarding the pending legislation which will affect the jurisdiction of federal courts with respect to takings cases. It is my understanding that the House of Representatives has approved the bill, and the Senate is presently considering a similar bill. Please call if you have any questions. DNT:smk Attachment CC: Alison MacGregor Harry, City Clerk ,5. P/ ~ Pr~nte~ C,'~ ~eCvcled Papgr FILE h1534.eh 105th CONGRESS 1st Session AN ACT 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 by final actions of Federal agencies, or other government officials or entities acting under color of State law; to prevent Federal courts from abstaining from exercising Federal jurisdiction in actions where no State law claim is alleged; to permit certification of unsettled State law questions that are essential to resolving Federal claims arising under the Constitution; and to clarify when government action is sufficiently final to ripen certain Federal claims arising under the Constitution. HR 1534 EH 105th CONGRESS 1st Session AN ACT 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 by final actions of Federal agencies, or other government officials or entities acting under color of State law; to prevent Federal courts from abstaining from exercising Federal jurisdiction in actions where no State law claim is alleged; to permit certification of unsettled State law questions that are essential to resolving Federal claims arising under the Constitution; and to clarify when government action is sufficiently final to ripen certain Federal claims arising under the Constitution. [Italic->] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled [<-Italic] , SECTION 1. SHORT TITLE. This Act may be cited as the 'Private Property Rights Implementation Act of 1997' SEC. 2. JURISDICTION IN CIVIL RIGHTS CASES. Section 1343 of title 28, United States Code, is amended by adding at the end the following: '(c) Whenever a district court exercises jurisdiction under subsection (a) in an action in which the operative facts concern the uses of real property, it shall not abstain from exercising or relinquish its jurisdiction to a State court in an action where no claim of a violation of a State law, right, or privilege is alleged, and where a parallel proceeding in State court arising out of the same operative facts as the district court proceeding is not pending. '(d) Where the district court has jurisdiction over an action under subsection (a) in which the operative facts concern the uses of real property and which cannot be decided without resolution of an unsettled question of State law, the district court may certify the question of State law to the highest appellate court of that State. After the State appellate court resolves the question certified to it, the district court shall proceed with resolving the merits. The district court shall not certify a question of State law under this subsection unless the question of State law-- '(1) will significantly affect the merits of the injured party's Federal claim; and '(2) is patently unclear. '(e) (1) Any claim or action brought under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) to redress the deprivation of a property right or privilege secured by the Constitution shall be ripe for adjudication by the district courts upon a final decision rendered by any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or territory of the United States, that causes actual and concrete injury to the party seeking redress. '(2) (A) For purposes of this subsection, a final decision exists if-- '(i) any person acting under color of any statute, ordinance, I of 3 03/06/98 17:23:57 '(i) any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or territor~ of the United States, makes a definitive decision regarding the extent of permissible uses on the property that has been allegedly infringed or taken; '(ii)(I) one meaningful application, as defined by the locality concerned within that State or territory, to use the property has been submitted but has not been approved, and the party seeking redress has applied for one appeal or waiver which has not been approved, where the applicable statute, ordinance, custom, or usage provides a mechanism for appeal to or waiver by an administrative agency; or '(II) one meaningful application, as defined by the locality concerned within that State or territory, to use the property has been submitted but has not been approved, and the disapproval explains in writing the use, density, or intensity of development of the property that would be approved, with any conditions therefor, and the party seeking redress has resubmitted another meaningful application taking into account the terms of the disapproval, except that-- '(aa) if no such reapplication is submitted, then a final decision shall not have been reached for purposes of this subsection, except as provided in subparagraph (B); and '(bb) if the reapplication is not approved, or if the reapplication is not required under subparagraph (B), then a final decision exists for purposes of this subsection if the party seeking redress b~s applied for one appeal or waiver with respect to the disapproval, which has not been approved, where the applicable statute, ordinance, custom, or usage provides a mechanism of appeal or waiver by an administrative agency; and '(iii) in a case involving the uses of real property, where the applicable statute or ordinance provides for review of the case by elected officials, the party seeking redress has applied for but is denied such review. '(B) The party seeking redress shall not be required to apply for an appeal or waiver described in paragraph (1) (B) if no such appeal or waiver is available, if it cannot provide the relief requested, or if the application or reapplication would be futile. '(3) For purposes of this subsection, a final decision shall not require the party seeking redress to exhaust judicial remedies provided by any State or territor~ of the United States. '(f) Nothing in subsection (c), (d), or (e) alters the substantive law of takings of property, including the burden of proof borne by the plaintiff.'. SEC. 3. UNITED STATES AS DEFENDANT. Section 1346 of title 28, United States Code, is amended by adding at the end the following: '(h) (1) Any claim brought under subsection (a) that is founded upon a property right or privilege secured by the Constitution, but was allegedly infringed or taken by the United States, shall be ripe for adjudication upon a final decision rendered by the United States, that causes actual and concrete injury to the party seeking redress. '(2) For purposes of this subsection, a final decision exists if-- '(A) the United States makes a definitive decision regarding the extent of permissible uses on the property that has been allegedly infringed or taken; and '(B) one meaningful application to use the property has been submitted but has not been approved, and the party seeking redress has applied for one appeal or waiver which has not been approved, where the applicable law of the United States provides a mechanism for appeal to or waiver by an administrative agency. The party seeking redress shall not be required to apply for an appeal or waiver described in s~bparagraph (B) if no such appeal or waiver is available, if it cannot provide the relief requested, or if application or reapplication to use the property would be futile. '(3) Nothing in this subsection alters the substantive law of 2 of 3 03/06/98 17:23:57 takings of property, including the burden of proof borne by the plaintiff.' SEC. A. JURISDICTION OF COURT OF FEDERAL CLAIMS. Section 1491(a) of title 28, United States Code, is amended by adding at the end the following: '(3) Any claim brought under this subsection founded upon a property right or privilege secured by the Constitution, but allegedly infringed or taken by the United States, shall be ripe for adjudication upon a final decision rendered by the United States, that causes actual and concrete injury to the party seeking redress. For purposes of this paragraph, a final decision exists '(A) the United States makes a definitive decision regarding the extent of permissible uses on the property that has been allegedly infringed or taken; and '(B) one meaningful application to use the property has been submitted but has not been approved, and the party seeking redress has applied for one appeal or waiver which has not been approved, where the applicable law of the United States provides a mechanism for appeal or waiver. The party seeking redress shall not be required to apply for an appeal or waiver described in subparagraph (B) if no such appeal or waiver is available, if it cannot provide the relief requested, or if application or reapplication to use the property would be futile. Nothing in this paragraph alters the substantive law of takings of property, including the burden of proof borne by the plaintiff.' SEC. 5. DUTY OF NOTICE TO OWNERS. Whenever a Federal agency takes an agency action limiting the use of private property that may be affected by the amendments made by this Act, the agency shall give notice to the owners of that property explaining their rights under such amendments and the procedures for obtaining any compensation that may be due to them under such amendments. SEC. 6. EFFECTIVE DATE. The amendments made by this Act shall apply to actions commenced on or after the date of the enactment of this Act. Passed the House of Representatives October 22, 1997. Attest: Clerk. 3 Of 3 03/06/98 17:23:57 Federal Preemption: "Takings" During the last ~veek of February, the Senate Judiciary. was expected to mark up legislation that would significantly limit the abilin' of state courts and local administrative bodies to regulate land use within their communities. Action by the full Senate is expected to quickly follow, possibly within a matter of days. The full House al- ready passed the takings legislation in October 1997 by a 248 to 178 mar- gin. Some property, owners allege a portion of the value of their propers? has been unfairly reduced or taken by the action of local legislative bod- ies and/or zoning boards. Under current law, the federal judiciary, does not get invoNed in these disputes until and unless ali local zoning ap- peals and state-court procedures have been exhausted. Under the legislation now before Congress, aggrieved par- ties could take their cases immediately to federal courts, preempting local and state laws and procedures. By increasing the frequency of federal court litigation, the proposed legisla- tion also could impose significant new litigation costs on cities, counties, and their taxpayers. At its Janua~' meeting, the ICMA Executive Board endorsed a set of recommendations by ICMA's Gov- ernmental Affairs and Policy Com- mittee (GAPC). Among the recommendations approved was op- position to federal preemption of local and state authority, including "takings" legislation. The GA.PC encourages ICMA members to bring this important issue to the attention of their legislative bodies. For more information, contact Michael Lawson at ICMA, 202/962- 3634; e-mail, mlawson@icma.org.