Legislative Updates

FEDERAL LEGISLATIVE ACTIVITIES

S. 1313

On June 27, 2005, Senator John Cornyn (R-TX) introduced legislation entitled "The Protection of Homes, Small Businesses, and Private Property Act of 2005" (S. 1313).  This bill is in direct response to the U.S. Supreme Court decision in Kelo v. City of New London, 545 U.S. ___ (2005).  In his remarks introducing the bill, Senator Cornyn said:  "The protection of  homes, small businesses, and other private property rights against government seizure and other unreasonable government interference is a fundamental principle and core commitment of our nation's Founders." 

The legislation makes clear that the power of eminent domain is only for public use, and not for economic development. The legislation would apply to the eminent domain power of the federal government as well as to eminent domain exercised by state and local government through the use of federal funds. The bill is currently before the Senate Judiciary Committee.

H.R. 3058

The Kelo decision touched a nerve in Congress as well, and resulted in a flurry of legislative activity. During consideration of the Transportation-Treasury-Housing spending bill (H.R. 3058), the House adopted an amendment offered by Rep. Scot Garrett (R-NJ) that would prohibit the use of funds under the bill to enforce the Supreme Court decision. The amendment was adopted by a vote of 231-189 and H.R. 3058 later passed the House.

H.R. 3135

House Judiciary Chairman James Sensenbrenner (R-WI) and Ranking Member John Conyers (D-MI) unveiled a similar bill, H.R. 3135.

H. Res. 340

Also in response to the Kelo decision, fifteen Representatives introduced House Resolution 340 expressing their "grave disapproval" of the majority's opinion in Kelo, finding that the opinion "nullifies the protections afforded private property owners in the Takings Clause of the Fifth Amendment." 

Resolution 340 further provides that state and local governments should only use eminent domain power for "purposes that serve the public good in accordance with" the Fifth Amendment and any exercise of this power that does not comply with this purpose "constitutes an abuse of government power and an usurpation of the individual property rights[.]"

To view the full text of any of these bills, or the resolution, please see the link below, and type in the corresponding bill or resolution number in the box in the upper left hand corner of the web page:  http://thomas.loc.gov/

STATE LEGISLATIVE ACTIVITIES

Florida  - S.B. 360

The Florida State Legislature recently passed SB 360, which amended Florida’s Growth Management Act.  The bill imposes a number of new requirements on local governments such as.  For example, local governments must ensure that their comprehensive plans are financially viable, follow procedures to ensure an adequate water supply and follow procedures to ensure adequate school construction.  The Bill also amends the land stewardship area program to require a plan amendment before a land stewardship area can be established and it adds to the 10-acre residential density limitation that exists for small-scale amendment review within rural locales that are of critical concern.  Lastly, the Bill creates the Century Commission for a Sustainable Florida, the School Concurrency Task Force and the Florida Impact Fee Review Task Force.

Louisiana - H.B. 853

Louisiana recently passed legislation to create the St. Bernard Parish Housing, Redevelopment and Quality of Life Commission.  The legislation also provides for the formation of a program by the Parish to use public and private resources to prevent the spread of slums and to rehabilitate slums using development projects. 

Nevada - H.B. 236

In June, Nevada passed Assembly Bill No. 236, which makes a number of changes to the law regarding alternative energy uses.  Specifically, the bill modifies the law requiring utilities to allow homeowners to use a net metering system so that utilities will not be required to allow new metering systems when the cumulative capacity of the metering systems is equal to 1% of the utility’s peak capacity.  The bill also creates an exception from certain permit requirements for electric plants with a generating capacity of 150 kilowatts or less that use renewable energy as their main source of energy.  Lastly, the bill eliminates several of the obstacles that stood in the way of the development of infrastructure to harness solar and wind energy. 

Oregon - Measure 37

This measure became effective on December 2, 2004.  As passed, it creates a claim for compensation for the enactment or enforcement of a land use regulation if the land use regulation restricts the use of the property and has the effect of reducing the fair market value of the property. Under the measure, state and local governments have a choice to:

(1) Pay compensation (based on date of acquisition by a family member or a legal entity owned by any one or combination of family members) and continue to apply and enforce the land use regulation; or (2) Modify, remove, or not apply (“waive”) the regulation to allow the owner to use the property for a use permitted at the time the owner acquired the property.

Washington - E.H.B. 1848

On August 1, 2005, new legislation designed to address construction defect litigation will take effect amending Washington's multiunit residential building statutes. The Revised Code of Washington (RCW) sections affected are RCW 64.34.415, 64.34.410, and 64.34.100. In addition, the legislation added a new section to Chapter 64.34, and added a new chapter to Title 64. Of particular interest are the new subsections 11 and 13 that provide for arbitration and mandatory mediation, respectively.  Under subsection 11, a party can file a demand for arbitration with the court between 30 and 90 days after filing or service of a complaint. Further, arbitration cannot be compelled without giving timely notice in compliance with subsection 11. Subsection 13 requires parties to engage in mediation within seven months of either the filing or service of the complaint, whichever is later. This provision also requires the parties to meet prior to mediation to attempt to resolve or narrow the scope of disputed issues, including issues related to repair plans. [ return to top ]