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the property differently—yet I have never heard anyone claim that the Constitution as interpreted regarding "physical occupations” is anti-environmental or a windfall to polluters. The reason is straightforward. The government would only be required to compensate property owners when it interferes with their ability to use or develop their own property, not when it prohibits nuisance behavior such as dumping raw sewagę into a stream. Indeed, such behavior is protected for neither partial takings under this legislation nor total takings under Lucas v. South Carolina, in which Justice Scalia explicitly noted that owners had no right to engage in nuisance behavior. Thus, the vivid and frightening images that government would be re, quired to pay property owners not dump toxins into our air and water are divorced from reality. Rather, these scare stories are high blown rhetoric used to raise funds, scare the public, and confuse legislators.
Opponents implicitly argue that the mere act of development is pollution. Certainly actions such as building a house affect the environment, but most people would hesitate to label that behavior “pollution.” After all, if all actions that changed nature were pollution, it would indict virtually all human activity and the charge would be meaningless. Rather, pollution is defined in Webster's Collegiate Dictionary as "environmental contamination with man-made waste.” Under this def. inition, there is little substance to the charge that “polluters would be paid not to pollute.” If, for instance, hazardous wastes were emitted into the air, dumped into the water, or migrated through the soil to groundwater, the waste could legitimately be deemed a “nuisance" and compensation would not be due.
In conclusion, the Administration seems to be grasping at straws to criticize this bill. It is obvious why America has demanded this legislation. The federal government's reach has stretched too far into the lives of honest, hard-working middle class property owners and they demand that it stop. This bill would be a solid step toward that goal.
PREPARED STATEMENT OF THE NATIONAL ASSOCIATION OF REALTORS® On behalf of the National Association of Realtors ® (NAR), we appreciate the opportunity to offer our comments on S. 605, the “Omnibus Property Rights Act of 1995,” which seeks to address the issue of takings of private property through federal regulatory actions.
On the local, state and national level, NAR has worked for years to encourage a balanced approach to environmental protection that accommodates the important needs for both conservation as well as economic opportunity and vitality. To balance the efforts of government to serve the public's well-being by controlling pollution and protecting
natural resources with the economic and property rights secured by the Constitution, we believe that the cost of the benefits to the general public achieved by such regulation should be borne by the beneficiaries—the general public. We oppose those aspects of environmental and natural resource legislation that amount to uncompensated condemnation of private property through government action. It is essential that the rights of private property owners be fully recognized in local, state, and federal programs and laws.
In recent years, as efforts to protect the environment have escalated, legislative and regulatory restrictions on the use of private property have become more stringent. While we do not disagree with the importance of protecting our natural environment, we feel that any such restrictions on the use of property should be balanced with the constitutional rights guaranteed to us under the 15th Amendment. Unfortunately, this balance has often tilted in favor of environmental protection, at the expense of property rights.
S. 605 will restore that balance. It allows property owners who, as a result of federal agency action, are deprived of thirty three percent or more of the value of property to seek compensation for such takings. Despite what the bill's opponents claim, S. 605 does not result in people who pollute being compensated by the government. S. 605 specifically bans compensation for any private action that would result in a nuisance or would be in violation of state laws.
S. 605 also requires federal regulatory agencies to perform a takings impact analysis prior to promulgating any regulation and to consider alternatives to taking federal property. We feel that this is a vital part of the legislation since it forces federal agencies to adopt a “look before you leap" approach to regulations which may impact property owners.
Over the past few years, the federal courts have increasingly recognized the validity of claimants who have argued that their property rights have been infringed by government regulation. In the recent Dolan v. City of Tigard case, the U.S. Supreme Court made it clear that it considers private property rights to be of equal importance with environmental regulation. Writing for the Court, Chief Justice Rehnquist stated, “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First or Fourth Amendment, should be relegated to the status of a poor relation.”
Opponent of this legislation point say that the protections for property owners already exist in the Constitution and that this legislation is duplicative and unnecessary. However, we do not feel that small property owners should be subjected to years of costly litigation to protect what are their basic constitutional rights. By providing alternative disputes resolution and expedited administrative appeal for property rights cases. S. 605 will level the playing field for property owners and place the burden for justifying takings back where it belongs, on the federal government.
The National Association of Realtors ® strongly support S. 605 and urges the Judiciary Committee to take action this year on this vital legislation.