State and Local Reporter - 08/05/2003 (Plain Text Version)

Debora Trimpe, Chair
Flower Mound, Texas

View Graphical Version | Subscribe to NAHB Publications | Email our Editor...
NAHB Home Page| Browse other NAHB e-publications |Search back issues

In this issue:
Brookings' Report on Impact Fees Is Flawed, Says NAHB
Texas Adopts Major Building Industry Reform Package
Big Picture Look at State, Local Governments' Fiscal Crises
Notice and Opportunity to Repair Legislation Recap
New IRS Web Site for Sec. 527 Groups
Legal News: Two Precedent-Setting Cases Could Reach Supreme Court
Get State, Federal Legislative Information on Enhanced NAHB Web Site
NAHB-Supported Federal Tax Bill a Plus for Builders and Small Businesses
SLGA Conference Helps Alaska Association Advance NOR Bill
Industry News
Tools Available to Promote Positive Industry Image

Legal News: Two Precedent-Setting Cases Could Reach Supreme Court

Supreme Court Asked to Hear Minnesota Takings Case
On behalf of Rochester, MN, multifamily developer Frank Kottschade, NAHB recently asked the U.S. Supreme Court to decide if private property owners should be able to bring federal constitutional claims in federal courts — just like claimants asserting their free speech, privacy or other rights under the U.S. Constitution — rather than being forced to have those claims decided by state court judges.

When they contest local land use regulations that infringe upon their constitutional rights under the Fifth Amendment, property owners typically have to wait eight to 10 years and spend hundreds of thousands of dollars to have their case litigated in state court before they can bring a takings case into federal court.

And studies show that lower federal courts routinely dismiss land use cases on such jurisdictional grounds without hearing the merits of the case.

Landowners can be denied the right to litigate federal constitutional issues in federal court entirely if the judge decides that the earlier state trial was sufficient.

NAHB has requested the Supreme Court to hear oral arguments in Kottschade v. City of Rochester, MN. In that case, Kottschade was unable to construct 104 townhomes on a 16-acre property when the city’s planning and zoning commission recommended conditions for approving his plan that reduced the housing that could be built there by 75%.

Kottschade unsuccessfully attempted to have his case heard by the U.S. District Court for the District of Minnesota, which said that the case needed to be heard in state court.

NAHB Reacts To U.S. v. Deaton Wetlands Decision
National Association of Home Builders Executive Vice President and CEO Jerry Howard recently issued the following statement in reaction to the June 12 decision by the U.S. Fourth Circuit Court of Appeals in U.S. v. Deaton; that regulation under the Clean Water Act includes manmade roadside ditches:

“The appeals court’s ruling in U.S. v. Deaton has performed the aquatic equivalent of alchemy. With this decision, the court has transformed virtually every front and back yard in the mid-Atlantic lying next to a man-dug ditch into waterfront property.

“Congress never intended for ordinary rural roadside drainage ditches, which are ubiquitous next to interstate highways and county roads, to be 'tributaries' under the Clean Water Act. The environmental value of manmade ditches that are clogged with vegetation and floating leaves for just a few weeks and dry during the rest of the year should not be comparable to, and in some cases exceed, the environmental value of streams that run into the Chesapeake Bay.

“The Clean Water Act is a vitally important environmental law designed to protect the nation’s navigable waters. However, this ruling dilutes the Act’s strength and distorts the power of those entrusted with the responsibility of providing effective, efficient protection of our aquatic heritage.

“Builders need clear guidance on the regulatory process under the Clean Water Act, but this decision will only muddy the nation’s regulatory and legal waters. We will consider all available avenues of recourse to restore balance to the Clean Water Act, including review before the Supreme Court.”