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As part of the development, Spring Creek, which runs from east to west through the property, was relocated in 1983–1984. The creek was placed in a new channel to minimize flooding in the area and the old stream bed was abandoned. The stream relocation work was done with the knowledge and approval of the Corps of Engineers. Representatives of the Corps were at the job site. The new stream is slow moving and contains large amounts of vegetation and wildlife. The abandoned channel runs through several sites in the park which the city wishes to sell as business locations. The Corps informed the city at the time of the channel relocation that the remainder of the industrial park was not considered to be wetlands and that there would not be a problem with continued development.
The Corps of Engineers has now changed its position. Mr. Dean Allan, the city's economic development director recently toured the area with Corps representatives. Mr. Allan was informed that the Corps considers the abandoned stream bed to be a wetland. In fact, the Corps representatives several times referred to the wetland as "our property" and informed Mr. Allan that the city could do nothing with it except with permission of the Corps of Engineers. The city or its buyers will be required to provide a mitigation area if any of that wetland is used for development. The Corps does not consider the new stream channel to be a replacement or mitigation for the abandoned stream channel.
The unreasonable and changed position taken by the Corps of Engineers makes it extremely difficult, if not impossible, for the city to complete development of the industrial park. The action of the Corps has, in effect, deprived the city of the ability to sell the remaining sites. Approximately 35 acres of property has been effectively taken by the wetlands regulations. Similar property in other industrial parks in Utah County is selling for $40,000 per acre and higher. That is a taking of property for which the city should be compensated. In addition to depriving the city of the value of the property, the action of the Corps will also end the industrial development which was to have provided jobs for area residents. A substantial portion of the several million dollars of federal and local money invested in the park will be wasted.
If enacted, S. 605 will give Springville City and other property owners in similar situations protection against regulatory deprivation of property as described above.
Section 502(4) of the proposed legislation excludes local governments such as Springville City from the definition of private property owner. Because of that exclusion, it appears that the city would not have any right to the administrative appeal process and other rights under Title 5. State and local governments, in their capace ity as property owners, should have the same rights under the act as a private individual. We are concerned that unless the definition is changed, federal agencies such as the Corps of Engineers will be able to regulate lands owned by the city with relative impunity as is the present practice. The committee should consider amending the definition so that state and local governments can also have rights under Title 5 of the bill.
We also wish to point out that the federal government has acted inconsistently with regard to Springville City Industrial Park. Not only has the Corps of Engineers changed its position with regard to what portions of the park are considered wetlands, it is telling the city that it cannot do what another agency, the Economic Development Administration, approved and encouraged the city to do. Very truly yours,
DELORA P. BERTELSEN,
THE UNIVERSITY OF UTAH,
COLLEGE OF LAW,
Salt Lake City, UT, July 10, 1995. Hon. ORRIN G. HATCH, Chairman, Judiciary Committee, U.S. Senate, Washington, DC.
DEAR CHAIRMAN HATCH: We respectfully submit the following comments to be included in the record of the field hearing on private property rights held in Salt Lake City on Monday, July 3, 1995. (These comments reflect the professional views of the undersigned faculty, and not a position of the University of Utah College of Law.)
As a preliminary matter, we would like to request that future field hearings in Salt Lake City be announced publicly sufficiently in advance that we and other members of the public may submit timely requests to testify. We learned of the hearing informally, from a colleague in Washington D.C., just one week in advance. One of us, Associate Dean John Martinez, who has published extensively and who teaches a seminar in the area of property rights, promptly called your office in Washington to request an opportunity to testify at the hearing, but was told that the witness list had already been closed. It is unfortunate that we and other members of the public who may have been able to contribute informed and diverse viewpoints to the Committee were not able to do so due to inadequate public notice.
From a substantive perspective, we believe that federal legislation on property rights is unnecessary and unwise. The due process, equal protection, contracts and just compensation clauses of the Constitution, along with over a century of judicial interpretation and implementation, properly reflect the careful balance that must be struck between the rights of private property owners to use their property responsibly and the rights and needs of the general public to be protected against dangerous or inappropriate uses of that property. As the Supreme Court and the lower courts have recognized consistently, this balance defies rigid formulae, but instead is best determined case-by-case based on the specific facts at issue. In individual cases, the courts properly have balanced such factors as the use of the property and the extent of diminution of property value against the legitimate need for and valid, ity of the public regulation in question. Although the Supreme Court has addressed the takings issue many times over the past century, it has rejected repeatedly the notion that this inquiry can be reduced to precise quantitative or other fixed methods of analysis.
We agree that federal agencies should carefully balance the competing public and private considerations when their actions affect private property, but believe that there are other, more appropriate means to achieve this end. In his article examining state statutes similar to the proposed federal bill, Statutes Enacting Takings Law: Flying in the Face of Uncertainty, 26 Urban Lawyer 290 (1994), Professor Martinez carefully considered the problems that need to be considered in this analysis, including public benefits, private benefits, public costs, private costs, and where feasible, a balancing of those public versus private costs and benefits. However, because federal agencies already conduct such analyses routinely pursuant to Executive Order, federal legislation is not needed to achieve this result.
The complexity of the judgments to be made and the importance of the public and private interests affected thus make it inappropriate to attempt to address the property rights issue in an inflexible way through legislation, as proposed in S. 605. Because we do not believe that it is wise to legislate in this area, we provide only a few general observations about the bill rather than a detailed analysis:
Section 204 defines the circumstances under which compensation is required due to federal agency actions. Compensation is required if any one of the enumerated criteria is met. Several of the criteria appear to attempt to reduce existing principles of case law to simplistic, fixed formulae. This is inconsistent with the more flexible and we believe more appropriate case-specific approach adopted by the courts, which is more responsive to the wide variety of circumstances in which takings issues arise. The most drastic change in existing takings law, however, is section 204(a)2XD), which would require automatic compensation for any agency action that diminishes property values by a third or more, without any consideration of such factors as the activity affected (single home construction versus hazardous waste site), the location (industrial park versus adjacent to a school), or the nature of public interests at stake (aesthetics versus severe threat to public or environmental health). Rather than carefully balancing private against public rights and interests, the bill thus appears to exalt private property rights over other legitimate rights and interests.
(2) Existing takings law recognizes the need for government agencies to vindicate public rights, while holding agencies properly accountable for actions that cross the line between legitimate government regulation and unreasonable or extreme interference with private property rights. Several provisions of S. 605, by contrast, would impede the ability of agencies to serve the public. For example, section 204(f) would require all compensation claims to be paid out of the affected agency's budget (unlike other federal litigation claims, which are paid out of a central liability account in the Department of Justice). Especially when agency budgets are being reduced by efforts to trim the federal budget, officials may be chilled against taking necessary and legitimate actions to protect public health, safety and welfare, with no reasonable assurance that the proper balance will be struck between private and public rights. Where claims are paid, agencies may be left without adequate resources to do the jobs entrusted to them by Congress and the public. Similarly, section 404, which requires all federal agencies to review not just proposed but all existing regulations that may result in takings of private property, is a mammoth task that could cripple other legitimate agency activities in the interim. Again, to the extent that these provisions are designed to protect the rights of some property owners, they appear to do so at the expense of equally legitimate rights and interests of the public at large.
(3) Section 404(a) prohibits the promulgation of any agency rule if enforcement could reasonably be construed to require an uncompensated taking as defined in the bill. Either we do not understand how this requirement will work, or it will have an even greater chilling effect on legitimate agency activities designed to safeguard the pụblic health and welfare. Under the bill, all agency actions that meet the criteria in section 204(a) will require compensation. The term "taking" is defined in section 203(7) to mean actions that require compensation under the Fifth Amend. ment or the bill. Thus, the term "uncompensated taking" in section 404(a) is either a null set, or consists of all agency actions that do not meet the criteria in section 204(a), in which case it would
appear to prohibit all other agency regulations. Moreover, this provision appears to prohibit the issuance of an otherwise legitimate rule of nationwide applicability if it could be construed to cause an uncompensated taking in even a single instance.
(4) The bill appears to make the federal government financially liable for the actions of state and local regulatory agencies. As noted above, section 204(b) immunizes state agencies from liability
for takings in connection with the implementation of federal regulatory programs. But since such actions are compensable under section 204 of the bill, presumably this liability would be borne by the federal government. Yet most federal regulatory programs parallel similar state and local programs, many of which predate or impose stricter or different requirements than those included in federal law. As a practical matter, in many cases it will be difficult or impossible to distinguish between the regulatory impacts of state actions taken pursuant to federal law and those that would be taken anyway under state law. (The definition of “state agency” in section 203(6) of the bill requires only that the action in question be directly related to" the federal program, not that it be the exclusive source of authority.) Thus, the bill probably will impose liability on the federal government for actions that would be taken anyway under state and local law. This raises serious budgetary questions, especially when the federal government is facing severe fiscal constraints.
Finally, we are concerned that the bill does not state the source of constitutional authority purporting to be exercised. (Unlike other provisions of the Constitution, such as the Fourteenth Amendment, the Fifth Amendment includes no express delegation of legislative implementing authority to Congress.) If Congress chooses to leg. islate in such an unprecedented area, it should articulate the source of authority for doing so.
We appreciate your consideration of these brief comments as you consider S. 605 and other proposed legislation on private property rights. Because we believe that legislation in this area is not appropriate, we urge you to proceed with extreme caution. Very truly yours,
and Energy Law.
Professor of Law.
JOHN J. FLYNN,
Hugh B. Brown Professor of Law.
Professor of Law.
DELL AND JO ANN H. WALKER,
Orem, UT, June 28, 1995. Senator ORRIN G. HATCH, Russell Senate Office Building, Washington, DC.
DEAR SENATOR Hatch: We as property owners have several concerns concerning the taking of our properly on the shore of Utah Lake.
When the property was appraised it was not appraised for the purpose for which it was to be used. It was appraised as farm ground and wet lands, we feel it should have been appraised as "campground for the Utah Lake State Park”.
In 1973 the state park bought acreage from our family for the expansion of the park. This pasture appraised at $4000 per acre. This property was not to be used for pasture or farming, but for the expansion of the state park. The property the appraisors are comparing this with was put up for sale by owners and used to farm or pasture.
Less than a year ago property on harbor drive road, 44 mile east of the dike sold for $7,500 per acre for 18 acres to a real estate developer. This properly was listed less than two months before it was sold.
Another concern we have is; should Provo City be able to purchase this property in exchange for other property needed for the expansion or the airport when this property is not being used for the expansion at all but used as recreation parking for trailers?
This property has been cwned by our family for over 60 years. It is gradually being taken from us by either the city or the state. Back in the early 40's the city bought property from our family for the boat harbor and city park, which was later sold
to the state. Then in 1972 the state of Utah parks and recreation purchased the family home and approximately 4 acres for the improvement and expansion of the state park, which adjoins the property now in condemnation.
The first appraised offer that was made to us was a flat $14,000 for 40.8 acres by Provo City. Our refusal caused it to go into condemnation. The appraisal on our property averaged out to be $340 per acre.
The last appraisal was $58,000. Three-thousand dollars was for 8.5 acres and $1000 was for the remaining 32.3 acres, which is being called wet lands. Actually, no one can tell us why this 32.3 acres was considered as wet lands. This information seems to have come from the engineers who are working on the airport expansion. This property is basically the very same on all the property along the lake front. We never knew it was classified as wet lands before this time. We feel this is a very unfair appraisal. The property all around us is being sold for much more.
We appreciate the interest you are taking in the Horton and Edwards property for additional camp grounds and future boat
docks for the state park, which is being traded for property on the south side of the river for the expansion of the airport.
We are indeed sorry we are unable to attend this hearing. Thank you for everything you are doing. Sincerely,
THE HORTON FAMILY,
Kitten Testimony of Benjamin Slough
area individoals or
July 6, 1995
Doar Senator Hatch,
We la the Benjamin Slough area are very copcerned about property rlghts and the takings of property which ist. We feel that • The Omnibus Property Rights Act of 1995" will be one of the things that will help to relieve property owners of some of the problems we are faced with.
Our situation is a little different than many being addressed, in that it 18 not the actual taking of property but restricting how and to what extent some of the property in this ares can be used. Ous pzobiem comes from not being allowed to maintaid the Benguin Slough as tha Elow of drainage water from a large portion of southera Utah County, brings sodinant that settlas In this sloagha causing it to restrict the flow of water more and more over the youts. This needs to be maintained on a yearly basis where needed, to keep the flows moving out of the area. We are seeing these flows. Increase as development in the areas about us. take place and also u more water comes into the valley it increases the amount of water to be drained out of the area also. The increased water comes bou the added population, which is drilling more water wells and Increasing the amount of ground water in the area. And drainaga kom other sources such as Irrigation of upstream land, the tacoasaned water from households which enters the water table through field dzalns anć much of the area above as being covered with buildings and pavement.
all of these itens combined are very critical to the existence of those of us who fan, ranch, and reside in the Beajamin Slough wu. In some past years approximately 2600 acres have been flooded w the surface watar, due to the fact of restricted £1dw of beasain slough. As a result of the minor maintenance allowed in 1995 this flooded acreage was reduced by 50%. Although not flooded with wata
el acreage beyond this wea is detrimentally affected as water is nigh. Nearly every spring, water Eron all the entities that have wata, drain into the Benjamin Slough, which liclude great number of different sources. Some of these sources are nouatain rodott, sustace runoff Eror storms, anderground drains, water discharged bu city sewer plants and numerous others. These alt combined are the cause of great grief and economic loss to many people, as well w the health threat posed because of backed up septic tanks and stagnant water which creates a breeding area for mosquitos. Nach of this could be reduced greatly if vian County wezle allowed to maintain the Benjamin stough Ehrough the renoval of sediment as needed for its entire length, and thus lacrease the flow of water to Utah Lake.
During the week of January 15-21, 1955, Utah County was allowed by the State of Utah to remove sediment from approximately .38 of a mile section of a 1.5 rlle part of the Bard amin slough, all of which needs maintenance badly. There is also another section pproximately .75 nilos long directly south of this area which