Legislation has cleared the House that would speed up the judicial system in cases in which property owners believe the government has taken their land illegally.

Currently, an average of 10 years passes before aggrieved owners have their day in court, according to the National Association of Home Builders, which has been actively backing the measure since it was introduced last June by Reps. Charles Candy, R-Fla., and Martin Frost, D-Texas.

The Private Property Rights Implementation Act addresses the barriers faced by owners who wish to challenge the taking of their land by regulation or legislation:

First, the bill limits the ability of federal judges to abstain from hearing their cases by declaring them matters best argued before lower courts first. Second, it clarifies the so-called "ripeness" doctrine by determining that a case is ready for federal review when a final decision has been made by a state or local agency.

The measure does not change the way local, state or federal agencies resolve disputes with property owners. Nor does it affect environmental law or define for the courts when a taking has occurred. Rather, it simply removes procedural hurdles preventing owners from having their cases heard in federal court in a fair and expeditious manner.

The bill, says NAHB President Robert Mitchell, "is intended to place all constitutional claimants on an equal footing. It is designed to ensure that federal courts treat Fifth Amendment claims the same as they treat other constitutional claims."

Meanwhile, in another Fifth Amendment issue involving real estate, a House panel has been told that a "forced access" rule being considered by the Federal Communications Commission would violate the rights of apartment and office building owners.

Under the rule, telecommunications providers would be allowed to enter and occupy privately owned buildings so they could install their own wiring and equipment. In addition, public utilities would be required to make their in-building facilities available to any and all cable companies and telecom providers.

But constitutional law expert Steven Rosenthal told the Judiciary Constitution Subcommittee that forcing building owners to grant access to all possible carriers "at little or no cost would inevitably constitute an illegal taking under the Fifth Amendment."

Regulatory intervention is not only unconstitutional, added John Haring, a former FCC economist, it is also unwarranted. Haring said his research indicates that local carriers are already obtaining significant access to buildings in their markets.

Haring called complaints by carriers that they are being denied access "largely anecdotal." And Brent Bitz of Charles E. Smith Commercial Realty pointed out that the industry's demand for access is one-sided in that they want to "cherry pick the best opportunities...and unilaterally ignore the rest of our industry's tenants."

Bitz also said the forced entry rule is totally unnecessary. Hundreds of licensing agreements are being negotiated everyday between owners and telecommunications firms, he reported.

Published: April 5, 2000

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