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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 validity 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(aX2XD), 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 public 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 Amendment 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 legislate 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,

Professor of Law, Associate Dean for

Academic Affairs.
Director, Center for Environmental

and Energy Law.

Professor of Law.


Hugh B. Brown Professor of Law.

Professor of Law.


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,



zitten Testimcay of Benjamin Slough

area individoals or.
"The Omlbas Property rights Act uf 1995"

July 6, 1995
Dear Senator Hatch,

we in the Benjamin slough area very copcerned about property rights and the takings of property which ist. We feel that • The Omnibus Property Rights Act of 1995" will be one of the talogs that will help to relieve property owners of some of the problems we are faced with.

Our situation is a little different than rany being addressed, in that it is not the actual taking of property but restricting how and to what extent some of the property in this area can be used. Our problem comes from not balng allowed to maintaid the Benjamin slough as the Elow of drainage water from a large portion of southera Utah County, brings sodinant that settlas in this slough causing dt to restrict the flow of water more and more over the years. This needs to be maintained on a yearly basis where needed, to keep the Elows moving out of the area. We are seeing these flowe. Increase as development in the areas about us. take place and also u bore water comes into the valley it increases the amount of water to be drained out of the axea also. The increased water comes

ou the added population, which is drilling more water wells and increasing the amount of ground water in the area. And drainage hom other sources such as irrigation of upstream land, the inconsumed water from botiseholds which enters the water table through field drains anc 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 Betojamin Slough wu. In some past years approxinately 2600 acres have been flooded witib surface water, due to the fact of restricted flow of beasain Slough. As a result of the minor maintenance allowed in 1995 this flooded acreage was reduced by 50%. Although not Elooded with water och acreage beyond this area is detrimertally affected as water is wigh. Nearly every spring, water Eron all the entities that have mte, drain into the Benjanin Slough, which liclude a great number. of different sources. Some of these sources are nouatain rosoli, stuce runoff from stors, ondergxound drains, water discharged bu city sewer plants and namerous others. These all combined are the cause of great grief and economic loss to many people, as well u the hoalth threat posed because of backed up septic tanks and stagnant water which creates a breeding area for mosquitos. Mach of this could be reduced greatly if utah coonty were allowed to wintain the Benjamia siough through the renoval of sediment as needed for its entire length, and thus increase the flow of water to Utab Lake.

During the week of January 15-21, 1955, Utah County was allowed by the State of Utah to remove sediment from approximately .31 ot a mile section of a 1.5 alie part of the Benjamin Slough, all of which needs maintenance badly. Toere is also another section wyproximately .75 miles long directly south of this area which

w nlatagance badly alao. the hove saan .thlonint
Imoun the flow 256 to 384, which makes a considerable di tim
wa the Benjaulo Slough slow la ences of 206 elic font
Mondad at higte pouks. Mus ramoval of witarial allownerloor
to move out of the area mach more rapidly and into Utah

though many areas will remain ander water 3 months or because mach more sediment must be removed for the Iows to they should. The increase in flow this year shows that this on loovad 1€ this work is accomplished. The 2000 feet that allowed to be cleaned had many unrealistic stumbling locks as ouu see from the documents included with this letter

It is due time that those who suffer economici lossal, louses of any other kind, and that the public health concern this area be corrected. We know from experience that we southing is done this problem .o: restricting the tlow us Denganin 8loagh which creates flooding, that it will af nothime wona as it has over the yeus. Projects of by laging watez hatna otua Valley have been of great benefit to the Vallby as a us wall us the individuals on the Benjamin Slough on their many from this ara. But this area bas been wetter ever since Bernharry Project brought water into the valley and will ittuated in the future as other projects of this nature put matus in the valley such as the Central Utah Project is doing. se da important that the xu is provided adequate draina

projects and other changes take place. We feel that the motey of those in these areas dead to outweigh the thoughts of

, Andubon Society, Stone Fly society and others like these to these things fron taking place. They have no right to atten

property right in those matters as they are carnantly dades Nw the ownership of the Bangamia slough indefined, it has the Gifticult to get cities, 0.8. Forest. service, bomeown landingers and others contributing to the problem to Beyonsibility for nintenance. With the commitment of Utab con to the responsible party, we feel the malatenance should ne xostricted because of these different groups. There has position from the above mentioned groups in connection with dulre to malatala the Bengaaln sloagh. ail that is being asked, to walatain the Beagania Slough to the level that it can adegua

o the Elows put into it, not to enlarge it from what it . ne Army Corps restrictions on the maintenance of the Beas slu bave been to restrictive for us to accomullsi proper chat nointenance. Though the. wetlands bill has good lateat, we bell their actions in this specific case are loappropriate. We bello penge of this bill will help to maintain private property right.

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