September 18, 1972
Page 31087
Mr. JORDAN of Idaho. Mr. President, this is a very simple amendment. The purpose of this amendment is to make abundantly clear that in implementing a land-use plan, a State cannot deprive an individual of his property without due process and, if warranted, compensation.
The situation may arise where a land use plan will impose limitations or prohibitions upon the use of private property, short of condemnation. For example, a State in endeavoring to comply with the provisions of this measure could make a determination that a particular tract of land was in an area of critical environmental concern within the State. That would have the effect of severely limiting and prohibiting the use to be made of that land which could in turn cause economic hardship of the landowner.
A limitation of the use of land should be compensable even though such limitations do not amount to outright confiscation. The amendment provides the landowner with the right to go to court and have a determination made as to whether there has been a diminution in the use of his property and the amount of compensation to be awarded therefor.
Mr. President, I hope Senators and the distinguished chairman and manager of the bill will accept the amendment.
Mr. JACKSON. Mr. President, here again the amendment that is offered would strengthen and clarify the bill. I am in full accord with the intent of the amendment.
It is my position and the position of the committee that S. 632 in no way diminishes any person's right to go to court and to receive compensation if the use and enjoyment of his property has been so restricted as to constitute a taking.
Mr. MUSKIE. Mr. President, will the Senator yield?
Mr. JACKSON. I yield.
Mr. MUSKIE. I address my question to the Senator. As I read the language it is to reflect the right of any citizen under existing law to compensation where his land is taken for public purposes and it is not to substantially add to present law. It should be clear in the RECORD that this measure does not endorse payments for speculative land values, that may be lost because of re-zoning or because of land use limitations of any kind.
Mr. JORDAN of Idaho. Mr. President, I think the Senator has offered a clarification I would accept.
Mr. JACKSON. As I understand it, and the author of the amendment agrees, it does not add to nor detract in any way from any law that now applies, as it pertains to private property.
Mr. HANSEN. Mr. President, will the Senator yield for a question?
Mr. JORDAN of Idaho. I yield.
Mr. HANSEN. I understood it was the intent of the Senator to recognize that zoning could, indeed, adversely affect the property owner.
I live in an area that is largely in Federal ownership. My county of Teton is 97 percent in Federal ownership. Presently there are some remaining cattle ranches in the area. If it became impossible to continue a livestock operation there or economically infeasible to continue, and a landowner chose to make some other use of his property, it would be sold to land developers and it would then be subdivided.
My question is: According to the clarification by the Senator from Maine, would this amendment of the Senator from Idaho imply that if the zoning board or Land Use Planning Board said there could be no further subdivisions in an area, that that would be it and the owner of the land would not be entitled to any relief?
Mr. JACKSON. It would be up to the court to decide.
Mr. HANSEN. I ask the Senator from Washington because he cited the illustration of a zoning board action which affected the landowner because of a zoning ordinance.
Mr. JACKSON. I do not want to get into a complicated discussion as to what the law is. Zoning is a very confused area. The courts have held that the States in subdivisions have the police power to zone land. The courts have held this is not a taking of property. We are not trying to undo the law. Counsel says I am correct, and I think I am.
To re-zone retroactively gets into serious constitutional questions of taking property without due process of law. But when they zone–
Mr. HANSEN. What does the Senator mean by "zoning retroactively"?
Mr. JACKSON. Exactly that. I am talking here, however, about a zoning ordinance that goes into effect prospectively.
Mr. HANSEN. Then, let me cite an example. Let us assume that within this area there may be some large apple orchards. As I read the bill, on page 99, section 501, subsection (e) provides:
(e) The term "areas of critical environmental concern" means areas as designated by the State on non-Federal lands where uncontrolled development could result in irreversible damage to important historic, cultural, or esthetic values, or natural systems or processes which are of more than local significance, or could unreasonably endanger life and property as a result of natural hazards of more than local significance. Such areas shall include significant undeveloped agricultural, grazing, and watershed lands.
I wish to ask the distinguished Senator if it could not very well be that through imposition of a zoning ordinance that that land, those apple orchards could be declared areas of critical environmental concern, and that it might be determined there should be no subdividing, no developmental efforts undertaken to do any building, or anything.
Mr. JACKSON. Under the provisions of this bill – and I am violently opposed to any Federal zoning – this is up to the local jurisdiction.
What the amendment does is to provide that the bill does not in any manner, shape, or form change any existing law, add to it or detract from it; it maintains the status quo, whatever it is.
There are lawyers who practice zoning law exclusively. I would not pretend to know the law on property rights under a given set of facts. I can only say that we are not telling them what to do by Federal zoning. This is up to the local entity which would have jurisdiction of property under the law in Wyoming.
Mr. HANSEN. I do not argue that. What concerns me is what results if the State authority, acting in conformance with this legislation, works up a State plan wherein certain uses and developmental activities may be precisely prohibited, and in the course of events it becomes economically unsound further to continue a dairy operation or an apple orchard.
Then, obviously, I can see where a landowner could be put at a very distinct disadvantage for reasons entirely beyond his control. Maybe the property goes into an estate. It may be that he would want to make other use of it.
I thought the purpose of the amendment of the Senator from Idaho was to recognize the inequity that would otherwise result from that situation and afford relief to the property owner to go into court and say, "I cannot continue to operate my apple orchard. I could sell this land for x dollars, but that use has been denied me by action of the State in its land plan, so I must think of other uses."
That would involve the difference in value from the use on the one hand that would yield the greatest economic return and the use on the other hand which would be countenanced by State land planning action would be so much less. I assume the purpose of the amendment was to say to that landowner that either the Federal Government or State would recognize that landowner's right to seek relief. Is that not correct?
Mr. JACKSON. May I answer the question?
Mr. HANSEN. I would be happy for the Senator to answer the question.
Mr. JACKSON. Let me make it very clear. This is up to the State of Wyoming.
Mr. HANSEN. I fully agree. I do not argue that point. I am not saying who has the authority.
Mr. JACKSON. Wait a minute. Look, I can give the Senator some cases.
Mr. HANSEN. I just want a simple answer to a very simple question.
Mr. JACKSON. Give me the question.
Mr. HANSEN. All right. I thought I did, but let me state it again.
Mr. JACKSON. All right.
Mr. HANSEN. Suppose I live in Virginia and I have a thousand-acre apple orchard.
Mr. JACKSON. Yes, right, and it has been zoned only for agricultural purposes and the persons involved, the people who own it, want to get a better price, and they want to subdivide it, and they subdivide it. This bill does not change anything. I submit that is the case over and over again that is going on in America. It is a very difficult situation. Farmlands are being gobbled up for subdividing and the question is, can the State, through its local subdivision, make a determination that that land shall be for agricultural purposes only?
Mr. TALMADGE. Will the Senator yield on that point?
Mr. JACKSON. Yes. I shall be happy to yield.
Mr. TALMADGE. It is my understanding each State must submit to the Secretary of the Interior a land use plan. Is that not correct?
Mr. JACKSON. This is correct.
Mr. TALMADGE. Suppose the State submits a land use program.
Mr. JACKSON. It is the program as a whole.
Mr. TALMADGE. And has broken down various areas within the State, and particular area should be restricted for agricultural purposes only, does the bill authorize that?
Mr. JACKSON. If the State makes the determination that certain areas should be assigned for agricultural purposes only, they would be conforming to the plan authorized by this bill.
Mr. TALMADGE. And then how could that be changed? Suppose it was an area of tremendous growth, taxes have shot up so high until it was confiscatory to continue for agricultural purposes, people want to come in there and buy land to build homes, and things of that nature. How would that plan then be changed from agricultural purposes to some other higher use value?
Mr. JACKSON. It is a continuous process of changing the plan. Under this bill the State, as it can do now, would not be affected in any manner, shape, or form. It could change it and say this area now is within a large metropolitan area and this land can be subdivided and, of course, in most States, the taxes skyrocket.
Mr. TALMADGE. Will the Senator yield on that point?
Mr. JACKSON. Yes. I Want to emphasize to the Senator, this is a completely flexible plan. It is not a static matter. It is an ever-changing situation.
Mr. TALMADGE. Would the State make that determination or the local zoning authority do it under existing law?
Mr. JACKSON. That would be entirely up to the States, and if the States permitted local zoning authorities to do it, they could do it.
Mr. TALMADGE. What I am trying to get at–
Mr. JACKSON. It is left to the States entirely.
Mr. TALMADGE. So far as I know, under existing law virtually all zoning authority is regulated by zoning boards within specific subdivisions of government.
Now we are introducing a new area, to wit, the States, and the States must submit plans to the Secretary of the Interior, so we have two new layers of authority over the local zoning authority.
We have the State authority and finally the Secretary of the Interior. We have pyramided two more zoning authorities over local zoning authorities, so how is that going to affect the local zoning authorities in the future in making a decision as to whether a filling station could
be located here or a schoolhouse can be located here or a hospital can be located here or some other section that has been traditionally a local decision by local people?
Mr. JACKSON. Let me say, to get back to the basic authority, that is, that the authority to set out these plans resides within the police power of the respective States. I think the Senator will agree with me. The States, of course, will vary on this point.
What we are really wrestling with, I will say to my good friend from Georgia, is what the Governors complained about – that in the 50 States today we have some 80,000 governmental entities within the States that are involved in land use planning, and there is overlap, there is conflict, so that the decision making process is breaking down.
What we are trying to do here is to assist the States in bringing about a more orderly procedure.
I know that the State of Georgia controls the zoning over certain critical areas. That is what we are referring to here, where the States are involved, such as coastal marshland, and I think there are certain other proposals under consideration now.
In other words, in all States – not in all States, but in the States that are moving forward on this problem – they identify critical areas that need attention by the State government, that go beyond the purely local problem that the Senator has been talking about, and I do not want to see any interference with that.
The problem is to deal with these very large regional decisions, that can have an impact on the local communities without their being able to participate in it, which can, indeed, have an adverse effect on the State.
Mr. HANSEN. Will the Senator yield?
Mr. JACKSON. Yes.
Mr. HANSEN. Mr. President, I think we need to keep in mind the basic issue here. I do not argue with the police powers of a State to exercise authority in the areas of zoning, but what this bill does is to use both a carrot and a stick approach. It can withhold up to 21 percent of the funds that are available to airports. It can withhold up to 21 percent of the money that would be available for the expansion of primary highways and secondary highways. That could be a vital importance in every city, and to every citizen in this country. It can withhold up to 21 percent of the Land and Water Conservation Fund. Then the bill turns around and tells the States they do not have the choice of deciding whether they want to do those things, whether they intend of their own volition to exercise their police powers; but it says in effect to the States they have to do it, and that is why I think the question by the Senator from Georgia is very relevant to this question.
If the Federal Government is going to go that far, if it is going to go that far in saying the States have to do these things, then it seems entirely appropriate to me that the bill ought to recognize the injustice that can be done to a private landowner.
This is precisely the question that concerns people in the State of Wyoming, the fact that taxes escalate, land values rise, boards of county commissioners and equalization boards raise the property values, taxes can increase until old uses no longer can yield any return and the land has to be disposed of.
I thought what the amendment by the Senator from Idaho proposed was that realistically and fairly this is something we have to consider. It gives a landowner the right to go into court and petition the court to make a determination if he has been hurt, and if he has been hurt, then I suspect it would give him some relief. I do not see anything wrong with that. I am amazed we would say this has no place in the bill.
The PRESIDING OFFICER. The time remaining to the Senator from Washington has expired. Twelve minutes remain to the author of the amendment.
Mr. JORDAN of Idaho. I yield 1 minute to the Senator.
Mr. JACKSON. I think I can answer – I hope I can answer – the Senator from Wyoming. I gather the Senator is asking whether the Federal Government can interfere in these local zoning problems and say, "You cannot do this."
Mr. HANSEN. No, just to give them the right.
Mr. JACKSON. The right?
Mr. HANSEN. The landowner the right?
Mr. JACKSON. Well, the landowner has all the rights he had before.
Mr. HANSEN: If the Senator can cite one example where so far a landowner has been able to go into a court and petition that he has been adversely affected and has been entitled to a judgment on account of a zoning ordinance, I would be interested.
The PRESIDING OFFICER. The minute has expired.
Mr. JACKSON. Look, we are not involved in that.
Mr. HANSEN. As a landowner, I am involved in it.
Mr. JACKSON. I understand.
Mr. PASTORE. Mr. President, will the Senator yield?
Mr. JACKSON. Yes.
Mr. PASTORE. If this denial is given by State law, then it is a question of State law. It is a State edict.
Mr. JACKSON. Right.
Mr. PASTORE. It is not Federal.
Mr. HANSEN. But this bill emphasizes the responsibility of the States to make these edicts.
Mr. PASTORE. That is not so. As a matter of fact, they will lose 21 percent of the highway funds, 21 percent of airport expansion funds. That is the way I read it.
Look at page 99 of the bill–
Mr. PASTORE. Mr. President, will the Senator yield? As I understand it, there is a fundamental difference between the Senator from Washington and the Senator from Maine, in the fact that the Senator from Washington retains State jurisdiction. Am I right or wrong?
Mr. JACKSON. The Senator is correct.
Several Senators addressed the Chair.
Mr. JACKSON. Mr. President, may I just respond first to the Senator from Wyoming? This bill does not require State zoning. It simply requires that the States come in with an overall program.
The States may delegate it all locally to the cities or the counties subject only to review under State guidelines. And, as the Senator from Rhode Island pointed out, if people have been deprived, in their judgment, of their property by zoning – and as we all know, the law books are full of questions on the point of whether you have taken property by zoning – then that is a matter that the States have accomplished, and nothing else.
For example, take the farm situation. Some States have said, "You can only use this land for agricultural purposes. It is zoned." The facts are that if you could subdivide it, it would be worth five times as much. So you go into court and say, "I want to subdivide it" Well, the local judge will tell you, and the courts have so ruled, "That's too bad, you are zoned." We all know there have been some terrible scandals in this country–
Mr. HANSEN. Indeed there have; I would agree.
Mr. JACKSON (continuing). About changes in zoning in order to enhance the value of property.
But is all at the local level. For the most part we are not changing local zoning, adding to it or detracting from it.
I cannot solve the Senator's problems concerning the environment dealing strictly with local situations and problems by this bill. I would not attempt to, Mr. President.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. JACKSON. This is a matter of getting the States to exercise States' rights.
Mr. MUSKIE. Mr. President, will the Senator from Wyoming yield?
Mr. HANSEN. Yes, I am happy to yield as much time as the Senator desires.
The PRESIDING OFFICER. Who yields time?
Mr. JORDAN of Idaho. How much time does the Senator want?
Mr. MUSKIE. Does the Senator from Wyoming have time on his amendment?
The PRESIDING OFFICER. The Senator from Wyoming has 9 minutes.
Mr. HANSEN. I yield the Senator 2 minutes.
Mr. MUSKIE. The amendment of the Senator from Idaho has provoked discussion along the whole broad range of issues related to this bill. I would like to put a question in relation to his amendment.
Does the Senator, in offering this amendment, intend to create a cause of action which does not now exist under present law? As I understand, the Senator from Washington, in his reply to me, stated his belief that the Senator's amendment does not create a cause of action. Is it the Senator's intent, as one of the authors, to create a cause of action which does not now exist under current zoning law?
Mr. HANSEN. In responding to the Senator from Maine, let me observe that credit must first be given to the Senator from Idaho. I am a cosponsor of the amendment; I endorsed it, and I think it has great merit. Certainly the Senator from Idaho may speak more knowledgeably than I can, but it is my understanding that what this amendment proposes to do is to recognize that under the Federal coercion that this bill imposes upon State governments, situations may arise where a landowner would be adversely affected, and this amendment would provide him with the only possible redress.
I am not a lawyer, but if that does help clarify the Senator's understanding as to my intentions, I am delighted.
Mr. MUSKIE. May I say, as one who was once a lawyer – it has been a long time, but I have been involved in that profession – as I read the Senator's language, it does not do what he thinks it does. I think that is what has projected this disagreement. The Senator may disagree with me, but as I read this language it does not create a cause of action, but simply recognizes that whatever causes of action exist under current law will continue to exist without any diminution under this bill. That is what I wanted reassurance about from the manager of the bill. I gather that the Senator from Wyoming understands this language to do something it does not do.
Mr. HANSEN. Well, I suspect we must leave it to the courts to determine what was intended by Congress. I assume that the Senator from Maine endorses the concept of the amendment as he interprets it; am I night about that?
Mr. MUSKIE. The Senator is correct. I had questions about the meaning of the language.
Mr. HANSEN. Then I take it he will support it.
Mr. MUSKIE. But as far as the language is concerned, the interpretation which I take to be that of the manager of the bill is the interpretation I support.
Mr. JORDAN of Idaho. Mr. President, we have had a very interesting discussion about the language of the bill generally, but I think we had better read the language of the amendment as stated:
Any person having a legal interest in land of which the State has prohibited or restricted the full use and enjoyment thereof, may petition a court of competent jurisdiction to determine whether the prohibition diminishes the uses of the property so as to require compensation for the loss and the amount of compensation to be awarded therefor.
As an example that I did not previously state, but I will state now, of how an individual might suffer an economic hardship: A State, on its own or under the direction of the Secretary might designate a mountain area, a lake area, or a beach area, as an area of critical environmental concern. Unfortunately for Mr. X, a man nearing retirement age who has purchased land in one of these areas intending to construct a retirement home for himself, construction of residences is now prohibited under the management plan for such area.
Mr. X has made a substantial investment in a building site, but he can no longer build, and as land within an area of critical environmental concern, his land has lesser value. He has suffered an economic hardship, and is entitled to redress from the courts.
Mr. PASTORE. Mr. President, will the Senator yield?
Mr. JORDAN of Idaho. I yield.
Mr. PASTORE. As a very distinguished former Governor of his State, the Senator certainly would not tolerate denying an individual that right. From what the Senator has read, it is very clear that this is what the State is doing.
Mr. JORDAN of Idaho. That is exactly right.
Mr. PASTORE. That is the point I am making: Why do we fault the Federal Government? We should not fault the Federal Government, because that is the doing of the State, and any Governor who tolerates that is not worth his salt.
Mr. COOK. Mr. President, will the Senator yield? It is not a matter of whether or not that particular Governor may be worth his salt, may I say, because I think what he is doing, and I am inclined to want to extend the colloquy, if we could, relative to the proposition submitted by the Senator from Maine, because I think we are setting in a second level between the right of a property owner to use his property as he desires and the right of eminent domain, and between there, we now see that we are not going to exercise this right to acquire, but we are going to exercise the right to determine that something is in a serious environmental area, that we are not going to acquire it, yet we are going to compensate if in fact there is a decision made that a loss has resulted.
So I think in fact we have established something. If the Senator does not think so, I am rather amazed, because I think we do have this problem, and I think this amendment may cure the problem, but I worry about the phrase "a court of competent jurisdiction." I worry about questions such as we have in many environmental bills, as to whether one has a right to bring this action either in a State court or a Federal court, or whether or not this is clear in the amendment and the ramifications thereof, and I think it does present a problem.