Federal & State Legislative Updates

FEDERAL LEGISLATIVE UPDATES

H.R. 4772

Titled "The Private Property Rights Implementation Act of 2006," the central goal of this bill is to allow property owners immediate access to federal court in suits that only assert federal constitutional claims against local government units, and there is no state suit pending at the time the federal suit is filed.  The bill is intended to address the main barrier to federal court adjudication of takings claims that derives from the Supreme Court’s 1985 Williamson County decision, which has been interpreted to require property owners to first pursue state judicial remedies for compensation before they even have the potential to access federal courts.  The bill would also: clarify the steps a landowner must pursue to receive a “final decision” from a land use body to ripen a takings claim; establish that the standard for due process claims against government units is the traditional, deferential “arbitrary and capricious” standard, not the “shocks the conscience standard” that some federal courts have approved; provide that any excessive exactions or conditions to approve a permit can provide the basis for a Fifth Amendment claim, whether an exaction seeks the payment of a fee or the dedication of land; , or whether the exaction is legislative or adjudicatory in nature; and clarify that the appropriate “denominator” in takings cases concerning subdivided land is each individual lot, where such a lot is taxed or otherwise treated as an independent unit under state or local law. 

A hearing on H.R. 4772 before the Constitution Subcommittee of the House Judiciary Committee is expected in the next few months. For a copy of the bill, please click here.

STATE LEGISLATIVE UPDATES

Alabama House Bill 14

Alabama House Bill 14: Alabama is considering legislation that would allow municipalities to pre-zone territory that has been proposed for annexation into the municipality.  These zoning classifications would become effective if and when the territory is actually annexed and would only apply to those portions of the territory that are actually annexed.  At this stage, the bill has been reported favorably from the House Committee on County and Municipal Government.

California Assembly Bill 2484

California Assembly Bill 2484: A bill was recently introduced in the California Assembly that would limit the availability of density bonuses for developers.  These bonuses allow developers to exceed the density requirements that would normally apply when they set aside a specific percentage of units for disadvantaged groups such as senior citizens and individuals with very low incomes.  This bill would prohibit the use of density bonuses where the allowable density exceeds: “40 units per acre in metropolitan jurisdictions; 25 units per acre in suburban jurisdictions; 20 units per acre in nonmetropolitan cities and counties; and 15 units per acre in unincorporated areas in nonmetropolitan counties…”

California Senate Bill 1177

California Senate Bill 1177: A bill introduced in the California Senate would make it easier for developers to obtain density bonuses by eliminating the requirement that developers show that the bonuses are necessary to make the development “economically feasible.”  This Bill has been referred to the Senate Committee on Transportation and Housing.

Connecticut House Bill 5043

Connecticut House Bill 5043: A Bill in the Connecticut House of Representatives would restrict development near beaches and bird sanctuaries.  Specifically, the Bill would prohibit zoning regulations from authorizing commercial uses and certain residential uses, on land that abuts a bird sanctuary if that sanctuary is located in two or more municipalities.  The Bill would also prohibit zoning regulations from authorizing the same uses on land “abutting a beach on the harbor of a river in a city (1) which was consolidated in 1895, (2) has a mayor and board of alderman form of government, and (3) has a population in excess of one hundred thousand.”  This Bill has been referred to the Joint Committee on Planning and Development.

Indiana Senate Bill 35

Indiana Senate Bill 35: The Indiana legislature is considering a law that would require local government agencies to apply the ordinances that were in effect when a developer began the permitting process.  This requirement would be in place for three years after the process was begun and it would apply not only to the initial permit application, but to all applications for permits and approvals concerning the same subject matter as the original application.  However, this rule would not apply if the development is not completed within seven years.  This Bill has passed the Senate and has been referred to the House Committee on Local Government.

Illinois Senate Bill 2290

Illinois Senate Bill 2290: A Bill in the Illinois Senate would require the State of Illinois to have a “comprehensive and unified policy for the allocation of resources for affordable housing and supportive services for historically underserved populations…”  The Act seeks to increase the quantity of quality affordable housing for underserved groups such as senior citizens and individuals with long income, particularly in areas that are close to centers of employment, transportation, and other amenities.  This Bill has passed the Illinois Senate and has been referred to the House Committee on Rules.

Mississippi House Bill 1323

Mississippi House Bill 1323: Bills were recently passed in the Mississippi House and Senate to help residents of Hancock, Harrison and Jackson counties rebuild homes that were destroyed in Hurricane Katrina.  Under these Bills, if a resident owned a home that did not meet the standards for minimum lot size and that home was destroyed in Hurricane Katrina, the resident would be able to rebuild the home without having to comply with the current lot size requirements.  However, the proposed law would only apply if: “(a) the square footage of the new residential structure is not greater than the square footage of the residential structure that was destroyed; (b) the use and purpose of the property will remain the same as it was before Hurricane Katrina; and (c) the construction of the new residential structure is begun before September 1, 2007.”

New Hampshire Senate Bill 140

New Hampshire Senate Bill 140: A Bill that is making its way through the New Hampshire legislature would authorize the acceptance of payments in-lieu of other forms of mitigation for the preservation and restoration of wetlands and adjacent areas.  The Bill would require that the payments be used for the restoration or creation of wetlands, the preservation of adjacent upland areas, or to support the administration of this program.  The Bill passed the Senate and the House, but the House attached an amendment so the Bill is awaiting Senate concurrence.

New York Senate Bill 722

New York Senate Bill 722: A Bill in the New York State Senate aims to establish statutory authorization for moratoriums.  The Senate perceived the need to create a comprehensive scheme for moratoriums given that moratoriums are widely used yet there are no guidelines for their use.  The Bill would authorize the legislative bodies of any city to institute a moratorium on the issuance of permits and approvals when necessary to: (1) respond to emergencies that affect public health or safety; (2) prevent harm to natural resources; or (3) allow time to conduct studies for the preparation of land use regulations or comprehensive plans.  The Bill contains a number of exceptions as well as restrictions on duration.  The Bill passed the Senate and was sent to the Assembly.  However it was recalled from the Assembly and returned to the Senate.

New York Assembly Bill 2050

New York Assembly Bill 2050: A Bill that has passed the New York State Assembly and is at the committee stage in the Senate would condition the award of density bonuses on the provision of affordable workforce housing.  The Bill would apply to local governments on Long Island.  In order for these governments to award density bonuses for developments containing five or more residential units, ten percent of the units must be set aside for affordable workforce housing.  There would be an exception where the local government determines that providing workforce housing on a particular site would have an adverse impact on health, safety or the environment.  In that case, the developer can make payment into a trust fund for affordable workforce housing or construct affordable workforce housing on another site.

Virginia House Bill 699

Virginia House Bill 699: The Virginia General Assembly is presently considering a Bill clarifying that public money can be expended the power to eminent domain exercised to redevelop blighted areas.  The Bill makes provisions for the sale of redeveloped properties to persons with low to moderate incomes.  This Bill has passed the House and is presently at the committee stage in the Senate.

Virginia House Bill 93 – Senate Bill 224

The Virginia General Assembly has passed legislation clarifying that localities have the authority to require environmental site assessments.  The legislation would also give localities the ability to require the disclosure and remediation of contamination and other harmful environmental conditions.  This legislation is presently awaiting action by the Governor.

Wisconsin - Senate Bill 448

With the signing of SB 448, Wisconsin became the 28th state to enact notice and opportunity to repair (NOR) legislation that makes it easier and less expensive for builders and home owners to resolve construction defect disputes. The new law requires home owners to give builders written notice of an alleged construction defect prior to filing a lawsuit. The builder then has 30 days to inspect and offer to remedy the defect within a reasonable period of time, offer to settle the claim via monetary payment, or choose to reject the claim altogether and allow a home owner to proceed with a lawsuit.

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