98-22669 RESO
RESOLUTION NO. 98-22669
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, URGING
UNITED STATES PRESIDENT BILL CLINTON, AND THE
UNITED ST A TES SENATORS AND CONGRESSIONAL
REPRESENTATIVES OF THE STATE OF FLORIDA TO
OPPOSE SENATE BILL 1256 ENTITLED THE "CITIZENS
ACCESS TO JUSTICE ACT OF 1997" OR ANY VERSION OF
THIS LEGISLATION AS APPROVED IN HOUSE
RESOLUTION (HR) 1534 ENTITLED THE "PRIVATE
PROPERTY RIGHTS IMPLEMENTATION ACT OF 1997.
WHEREAS, in May, 1997, the Private Property Rights Implementation Act of 1997
presented via House Resolution (HR) 1534 was introduced in the United States House of
Representatives and was passed in October, 1997, by a vote of 248 to 178; and
WHEREAS, a similar version of HR 1534 is currently before the United States Senate in
Senate Bill (So) 1256 entitled the "Citizens Access to Justice Act of 1997"; and
WHEREAS, So 1256 would change the standards and procedures governing takings lawsuits
against cities and other local governments by giving jurisdiction to the federal courts to hear lawsuits
that do not meet the United States Supreme Court's ripeness standards; and
WHEREAS, S. 1256 would also eliminate the existing requirement that takings claimants
first pursue available state remedies before filing suit in federal court and restrict the ability of
federal courts to abstain from hearing takings suits which would otherwise first be resolved in the
state court system; and
WHEREAS, So 1256 would impose an enormous new burden on cities across the nation,
subjecting local governments to increased liability by requiring local governments to defend against
takings suits not only in state court, but in federal courts as well; and
WHEREAS, the new burden created on cities and local governments proposed by S. 1256
would interfere with the ability of city officials to fairly and efficiently implement zoning ordinances
and other municipal regulations; and
WHEREAS, S. 1256 would impose on federal courts the responsibility of resolving a large
volume of local disputes now resolved by the state courts which would greatly expand the federal
courts' workload and authority, contradicting ongoing efforts in Congress to limit the reach of federal
court authority over fundamentally local issues; and
WHEREAS, S. 1256 would discourage and have a chilling effect on local governments
proposing amendments to zoning ordinances to address bonafide land use issues to improve quality
of life.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that United States President
Bill Clinton and the United States Congressional and Senate Representatives for the State of Florida
are hereby urged to oppose Senate bill 1256 entitled the "Citizens Access to Justice Act of 1997" or
any version of this legislation as approved in House Resolution 1534.
PASSED and ADOPTED this 18th day of February
,1998.
~~ p~~
CITY CLERK
1~#1
MAYOR
ATTEST:
DJ1\kw
F:\A TTO\TURN\RESOS\BILL 1256.RES
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
2
1#c~~lL:- J{JI1 r
l05TH CONGRESS H R 1534
1ST SESSION
. .
AN ACT
To simplify and e::-.:pedite access to the Federal courts for
injured parties whose rights and privileges, secured by
the United States Constitution, have been deprived by
final actions of Federal agencies, or other government
officials or entities acting under color of State law; to
prevent Federal courts from abstaining from exercising
Federal jurisdiction in actions where no State law clainl
2
is alleged; to permit certification of unsettled State law
questions that are essential to resolving Federal claims
arising under the Constitution; and to clarify when gov-
ernment action is sufficiently final to ripen certain Fed-
eral claims arising under the Constitution.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the "Private Property
5 Rights Implementation Act of 1997".
6 SEC. 2. JURISDICTION IN C~ RIGHTS CASES.
7 Section 1343 of title 28, United States Code, 15
8 amended by adding at the end the follo-wing:
9 "(c) "Vhenever a district court exercises jurisdiction
10 under subsection (a) in an action in which the operative
11 facts concern the uses of real property, it shall not abstain
12 from e~~rcising or relinquish its jurisdiction to a State
13 court in an action where no claim of a violation of a State
14 la"i, right, or privilege is alleged, and where a parallel pro-
15 ceeding in State court arising out of the same operative
16 facts as the district court proceeding is not pending.
17 "(d) "vl1ere the district court has jurisdiction over an
18 action under subsection (a) in l\.hich the operative facts
19 concern the uses of real property and which cannot be de-
20 cided "ithout resolution of an unsettled question of State
21 law, the district court may certify the question of St~te
.RR 1534 EH
3
1 law to the highest appellate court of that State. After the
2 State appellate court resolves the question certified to it,
3 the district court shall proceed \vith resolving the merits.
4 The district court shall not certify a question of State law
5 under this subsection unless the question of State law-
6 "(1) 'will significantly affect the merits of the
7 injured party's Federal claim; and
8"(2) is patently unclear.
9 "(e)(I) Any claim or action brought under section
10 1979 of the Revised Statutes of the United States (42
11 U.S.C. 1983) to redress the deprivation of a property right
12 or privilege secured by the Constitution shall be ripe for
13 adjudication by the district courts upon a final decision
14 rendered by any person acting under color of any statute,
15 ordinance, regulation, custom, or usage, of any State or
16 territory of the United States, that causes actual and con-
17 crete injury to the party seeking redress.
18 . "(2)(A) For purposes of this subsection, a final deci-
19 sion exists if-
20 "(i) any person acting under color of any stat-
21 ute, ordinance, regulation, custom, or usag'e, of any
22 State or territorv of the United States, makes a de-
23 finitive decision regarding the e~ient of permissible
24 uses on the property that has been allegedly in-
25 fringed or taken;
.RR 1534 EH
4
1 "(ii)(I) one meaningful application, as defined
2 by the locality concerned ,vithin that State or terri-
3 tory, to use the property has been submitted but has
4 not been approved, and the party seeking redress
5 has applied for one appeal or waiver which has not
6 been approved, ,,-here the applicable statute, ordi-
7 nance, custom, or usage provides a mechanism for
8 appeal to or waiver by an administrative agency; or
9 "(II) one meaningful application, as defined by
10 the locality concerned within that State or territory,
11 to use the property has been submitted but has not
12 been approved, and the disapproval explains in writ-
13 ing the use, density, or intensity of development of
14 the property that would be approved, -with any con-
15 ditions therefor, and the part:y seeking redress has
16 resubmitted another meaningful application taking
17 into account the terms of the disapproval, except
18 that-
19 "(aa) if no such reapplication is submitted,
20 then a final decision shall not have been
21 reached for purposes of tIllS subsection, except
22 as pro"\ided in subparagraph (B)i and
23 "(bb) if the reapplication is not approved,
24 or if the reapplication is not required under
25 subparagTaph (B), then a final decision exists
-HR 1534 EH
5
1 for purposes of this subsection if the party
2 seeking redress has applied for one appeal or
3 waiver with respect to the disapproval, which
4 has not been approved, where the applicable
5 statute, ordinance, custom, or usage provides a
6 mechanism of appeal or ,yaiver by an adminis-
7 trative agency; and
8 "(iii) in a case involving the uses of real prop-
9 erty, where the applicable statute or ordinance pro-
10 vides for review of the case by elected officials, the
11 party seeking- redress has applied for but is denied
12 such review.
13 "(B) The party seeking redress shall not be required
14 to apply for an appeal or 'waiver described in paragraph
15 (l)(B) if no such appeal or waiver is available, if it cannot
16 provide the relief requested, or if the application or re-
17 application 'would be futile.
18 . "(3) For purposes of this subsection, a final decision
19 shall not require the party seeking redress to exhaust judi-
20 cial remedies pro"\ided by any State or territory of the
21 United States.
22 "(f) Nothing- in subsection (c), (d), or (e) alters the
23 substantive law of tah.ing'S of property, including the bur-
24 den of proof borne by the plaintiff.".
.aR 1534 EH
6
1 SEC. 3. UNITED STATES AS DEFENDANT.
2 Section 1346 of title 28, United States Code, IS
3 amended by adding at the end the folla-wing:
4 "(h)(l) Any claim brought under subsection (a) that
5 is founded upon a property right or privilege secured by
6 the Constitution, but '''as allegedly infringed or taken by
7 the United States, shall be ripe for adjudication upon a
8 final decision rendered by the United States, that causes
9 actual and concrete injury to the party seeking redress.
10 "(2) For purposes of this subsection, a final decision
11 exists if-
12 "(A) the United States makes a definitiv~ deci-
13 sion regarding the extent of permissible uses on the
14 property that has been alleg'edly infringed or taken;
15 and
16 "(B) one meaningful application to use the
17 property has been submitted but has not been ap-
18 proved, and the party seeking redress has applied
19 for one appeal or waiver ,,'hich has not been ap-
20 proved, where the applicable law of the United
21 States provides a mechanism for appeal to or ,'-aiver
22 by an administrative agency.
23 The party seeking redress shall not be required to apply
24 for an appeal or \"aiver described in subparagTaph (B) if
25 no such appeal or waiver is available, if it cannot provide
.RR 1534 EH
7
1 the relief requested, or if application or reapplication to
2 use the property would be futile.
3 "(3) Nothing in this subsection alters the substantive
4 law of takings of property, including the burden of proof
5 borne by the plaintiff.".
6 SEC. 4. JURISDICTION OF COURT OF FEDERAL CLAIMS.
7 Section 1491(a) of title 28, United States Code, IS
8 amended by adding at the end the follmving:
9 "(3) Any claim brought under this subsection found-
10 ed upon a property right or privilege secured by the Con-
11 stitution, but allegedly infringed or taken by the United
12 States, shall be ripe for adjudication upon a final decision
13 rendered by the United States, that causes actual and con-
14 crete injury to the party seeking redress. For purposes of
15 thisparagTaph, a final decision exists if-
16 "(A) the United States makes a definitive deci-
17 sion regarding the extent of permissible uses on the
18 property that has been allegedly infringed or taken;
19 and
20 "(B) one meaningful application to use the
21 property has been submitted but has not been ap-
22 proved, and the party seeking redress has applied
23 for one appeal or waiver which has not been ap-
24 proved, ,,-here the applicable law of the United
25 States provides a mechanism for appeal or waiver.
.HR 1534 EH
8
1 The party seeking redress shall not be required to apply
2 for an appeal or waiver described in subparagraph (B) if
3 no such appeal or waiver is available, if it cannot provide
4 the relief requested, or if application or reapplication to
5 use the property would be futile. Nothing in this para-
6 graph alters the substantive law of takings of property,
7 including the burden of proof borne by the plaintiff.".
8 SEC. 5. DUTY OF NOTICE TO OWNERS.
9 vVhenever a Federal agency takes an agency action
10 limiting' the use of private property that may be affected
11 by the amendments made by this Act, the agency shall
12 give notice to the o\vners of that property explaining their
13 rights under such amendments and the procedures for ob-
14 taining any compensation that may be due to them under
15 such amendments.
16 SEC. 6. EFFECTIVE DATE.
17 The amendments made by this A.ct shall apply to ac-
18 tions commenced on or after the date of the enactment
19 of this Act.
Passed the House of Representatives October 22,
1997.
Attest:
Clerk.
-RR 1534 Eft
II
105TH CONGRESS
1ST SESSIO~
S.1256
To simplify and e~"pedite access to the Federal courts for injured partie
whose rights and prhileges, secured by the United States Constitution,
h,l.\"e been deprhoed by final actions of Federal agencies, or other govem
ment officials or entities acting under color of State law; to prevent
Federal courts from abstaining from exercising Federal jurisdiction in
actions in which no State law claim is alleged; to penl1it certification
of unsettled State law questions that are essential to Federal claims
arising under the Constitution; to allow for efficient adjudication of
constitutional claims brought by injured parties in the United States
district courts and the Court of Federal Claims; to clarify when govern-
ment action is sufficiently final to ripen certain Federal claims arisin
under the Constitution; and for other purposes.
IN THE SENATE OF THE UNITED STATES
OCTOBER 6, 1997
J\:!r. RUCH (for himself, ~rr. REID, :Mr. COVERDELL, ~Ir. THUIUIOXD, :\Ir.
G~, and Mr. BURXS) introduced the folIo\,ing bill; which was read
t\.;ce and referred to the Committee on the Judiciary
A BILL
To simplify and e:-..-pedite access to the Federal courts for
injured parties \vhose rights and privileges 7 secured by
the United States Constitution7 have been deprived by
final actions of Federal agencies7 or other government
officials or entities acting under color of State law; to
prevent Federal courts from abstaining' from exercising
Federal jurisdiction in actions in which no State law
claim is alleged; to permit certification of unsettled State
law questions that are essential to Federal claims arising
-
2
under the Constitution; to allow for efficient adjudication
of constitutional claims broug'ht by injured parties in
the United States district courts and the Court of Fed-
eral Claims; to clarif:y" \vhen government action is suffi-
ciently final to ripen certain Federal claims arising- under
the Constitution; and for other purposes.
1 Be it enacted by the Senate and HO'llse of Rep-resenta-
2 tives of the United States of America in Cong-ress assembled,
3 SECTION 1. SHORT TITLE.
4 TIns Act may be cited as the "Citizens Access to Jus-
5 tice Act of 1997".
6 SEC. 2. FINDINGS.
7 Congress finds that-
8 (1) property rights have been abrogated by the
9 application of laws, regulations, and other actions by
10 all levels of g'overnment that adversely affect the
11 value and the ability to make reasonable use of pri-
12 vate property;
13 (2) certain provisions of sections 1346 and
14 1402 and chapter 91 of title 28, United States Code
15 (commonly known as the Tucker Act), that delineate
16 the jurisdiction of courts hearing' property rights
17 claims, frustrate the ability of a property o\vner to
18 obtain full relief for violation founded upon the fifth
19 and fourteenth amendments of the United States
20 Constitution;
-5 1256 IS
3
1 (3) current law-
2 (A) has no sound basis for splitting juris-
3 diction between two courts in cases where con-
4 stitutionally protected property rights are at
5 stake;
6 (B) adds to the complexity and cost of
7 takings and litigation, adversely affecting ta.\:-
8 payers and property O\'Vl1ers;
9 (C) forces a property owner, who seeks
10 just compensation from the Federal Govern-
11 ment, to elect between equitable relief in the
12 district court and monetary relief (the -value of
13 the property taken) in the United States Court
14 of Federal Claims;
15 (D) is used to urge dismissal in the district
16 court in complaints against the Federal Govern-
17 ment, on the gTound that the plaintiff should
18 seek just compensation in the Court of Federal
19 Claims;
20 (E) is used to urge dismissal in the Court
21 of Federal Claims in complaints against the
22 Federal Government, on the ground that the
23 plaintiff should seek equitable relief in district
24 court; and
-5 1256 IS
4
1 (F) forces a property O\vner to first pay to
2 litigate an action in a State court, before a
3 Federal judge can decide whether local govern-
4 ment has denied property rights safeguarded by
5 the United States Constitution;
6 (4) property O\vners cannot fully vindicate prop-
7 erty rights in one lawsuit and their claims may be
8 time barred in a subsequent action;
9 (5) property O\vners should be able to fully re-
10 cover for a taking of their private property in one
11 court;
12 (6) certain provisions of section 1346 and 1402
13 and chapter 91 of title 28, United States Code (com-
14 monly lawwn as the Tucker Act) should be amend-
15 ed, giving both the district courts of the United
16 States and the Court of Federal Claims jurisdiction
17 to hear all claims relating to property rights in com-
18 plaints against the Federal Government;
19 (7) section 1500 of title 28, United States
20 Code, which denies the Court of Federal Claims ju-
21 riscliction to entertain a suit 'which is pencling in a~-
22 other court and made by the same plaintiff, should
23 be repealed;
24 (8) Federal and local authorities, through com-
25 plex, costly, repetitive and unconstitutional permit-
-s 1256 IS
5 .
1 ting, variance, and licensing procedures, have denied
2 property O\\llers their fifth and fourteenth amend-
3 ment rights under the United States Constitution to
4 the use, enjoyment, and disposition of, and exclusion
5 of others from, their property, and to safeguard
6 those rights, there is a need to determine what con-
7 stitutes a final decision of an agency in order to
8 allow claimants the ability to protect their property
9 rights in a court of law;
10 (9) a Federal judge should decide the merits of
11 cases where a property O\\ller seeks redress solely for
12 infringements of rights safeguarded by the United
13 States Constitution, and where no claim of a viola-
14 tion of State law is alleged; and
15 (10) certain provisions of sections 1343, 1346,
16 and 1491 of title 28, United States Code, should be
17 amended to clarify when a claim for redress of con-
18 stitutionally protected property" rights is sufficiently
19 ripe so a Federal judge may decide the merits of the
20 allegations.
21 SEC. 3. PURPOSES.
22 The purposes of this Act are to-
23 (1) establish a clear, uniform, and efficient ju-
24 clicial process whereby aggTieved property O\vners
25 can obtain vindication of property rights guaranteed
.S 1256 IS
6
1 by the fifth and fourteenth amendments to the
2 United States Constitution and this Act;
3 (2) amend the Tucker Act, including the repeal
4 of section 1500 of title 28, United States Code;
5 (3) rectify the unduly onerous and e~-pensive re-
6 quirement that a property o~;vner, seeking redress
7 under section 1979 of the Revised Statutes of the
8 United States (42 U.S.C. 1983) for the infringement
9 of property rights protected by the fifth and four-
10 teenth amendments of the United States Constitu-
11 tion, is required to first litigate Federal constitu-
12 tional issues in a State court before obtaining access
13 to the Federal courts; and
14 (4) pro'vide for uniformity in the application of
15 the ripeness doctrine in cases where constitutionally
16 protected property rights are allegedly infringed, by
17 providing that a final agency decision may be adju-
18 clicated by a Federal court on the merits after-
19 (A) the pertinent government body denies
20 a meaningful application to develop the land in
21 question; and
22 (B) the property mvner seeks a \vaiver by
23 or brings an appeal to an administrative agency
24 from such denial.
-s 1256 IS
7
1 SEC. 4. DEFINITIONS.
2 In this Act, the term-
3 (1) "agency action" means any action, inaction,
4 or decision taken by a Federal agency or other gov-
5 ernment agency that at t,he time of such action, in-
.6 action, or decision adversely affects private property
7 rights;
8 (2) "district court"-
9 (A) means a district court of the United
10 States with appropriate jurisdiction; and
11 (B) includes the United States District
12 Court of Guam, the United States -District
13 Court of. the Virgin Islands, or the District
14 Court for the Northern ~Iariana Islands;
15 (3) "Federal agency" means a department,
16 agency, independent agency, or instrumentality of
17 the United States, including any military depart-
18 ment, Government corporation, Government-con-
19 trolled corporation, or other establishment in the ex-
20 ecutive branch of the United States Government;
21 (4) "O\vner" means the o\vner or possessor of
22 property or rights in property at the time the taking
23 occurs, including' when-
24 (A) the statute, regulation, rule, order,
25 g1.lideline, policy, or action is passed or promul-
26 gated; or
-s 1256 IS
8
1 (B) the permit, license, authorization, or
2 governmental permission is denied or sus-
3 pended;
4 (5) "priyate property" or "propert:y" means all
5 interests constituting property, as defined by Fed-
6 eral or State Imv, protected under the fifth and four-
7 teenth amendments to the United States Constitu-
8 tion; and
9 (6) "taking of private property", "taking", or
10 "take" means any action whereby restricting the
11 ownership, alienability, possession, or use of private
12 property is an object of that action and is taken so
13 as to require compensation under the fifth amend-
14 ment to the United States Constitution, including by
15 physical in\"asion, regulation, exaction, condition, or
16 other means.
17 SEC. 5. PRIVATE PROPERTY ACTIONS.
18 (a) Ix GE~""ER..-\L.-.An o\vner may file a civil action
19 tmder this section to challenge the validity of any Federal
20 agency action that adversely affects the o"\V!ler's interest
21 in private property in a district court or the United States
22 Court of Federal Claims.
23 (b) CO:--;Cl:RREXT JuRISDICTIOX.-Notwithstancling'
24 any other provision of law and nonvithstanding- the issues
25 involved, the relief sought, or the amount in controversy,
-5 1256 IS
9
. 1 the district court and the United States Court of Federal
2 Claims shall each have concurrent jurisdiction over both
3 claims for monetary relief and claims seeking invalidation
4 of any Act of CongTess or any regulation of a Federal
5 agency affecting private property" rights.
6 (c) ELECTION.-The plaintiff may elect to file an ac-
7 tion under this section in a district court or the United
8 States Court of Federal Claims.
9 (d) \V..uvER OF SOv~REIGN LvOru:NITY.-This section
10 constitutes express waiver of the sovereign immunity of
11 the United States with respect to an action filed tmder
12 this section. .
13 SEC. 6. STANDING AND EXHAUSTION OF REMEDms.
14 (a) IN GE~~R.<\L.-Subject to subsection (b), any
15 person adversely affected by a Federal agency action shall
16 have standing to challenge and seek judicial review of that
17 action 'without first exhausting administrative remedies.
18 (b) An.JT.;1)ICATION.-
19 (1) IN GE;:-"~R.<\L.-.Any civil action filed under
20 section 5 shall be ripe for adjudication upon a final
21 decision rendered by the United States, that causes
22 actual and concrete injury to the party seeking re-
23 dress.
24 (2) FIX.-\L DECISIO:\.-
-5 1256 IS
10
. 1 (A) IN GE:-'"ERAL.-For purposes of this
2 subsection, a final decision exists if-
3 (i) the United States, acting under
4 Federal statute or regulation, makes a de-
S finitive decision regarding the extent of
6 permissible land uses on the property that
7 has allegedly been infringed or taken, \".ith-
8 out regard to any uses that may be per-
9 mitted elsewhere; and
10 (ii)(I) one meaningful application to
11 use the property has been submitted for a
12 final decision but is denied; and
13 (IT) if the pertinent Federal statute or
14 reg1.11ation provides for a right of appeal to
15 or waiver by the pertinent Federal agency
16 from the final decision regarding such
17 property, the party seeking redress has
18 brought 1 appeal or sought 1 waiver from
19 such a final decision.
20 (B) APPEAL OR WAIV"ER.-For purposes of
21 subparagTaph Ui.)(ii), the party seeking redress
22 shall not be required to apply for such an ap-
23 peal or waiver if-
24 (i) no such process is available;a
-5 1256 IS
11
I (ii) it cannot provide the relief re-
2 quested; or
3 (iii) the prospects for success are rea-
4 sonably unlikely and intervention by the
5 district court or the United States Court of
6 Federal Claims under this section is \var-
7 ranted to decide the merits.
8 SEC. 7. APPEALS.
9 The United States Court of Appeals for the Federal
10 Circuit shall have exclusive jurisdiction of any action filed
II under section 5, regardless of whether the jurisdiction of
12 such action is based in whole or part under such - section.
13 SEC. 8. JURISDICTION OF UNITED STATES COURT OF FED-
14 ERAL CLAIMS AND UNITED STATES DISTRICT
15 COURTS.
16 (a) U~lTED STATES COURT OF FEDER..ll. CLAThIS.-
17 (1) Jt""RISDICTIox.-Section 1491(a) of title
18 28, United States Code, is amended-
19 (A) in paragraph (1) by amending the first
20 sentence to read as follows: "The United States
21 Court of Federal Claims shall have jurisdiction
22 to render judgment upon any claim against the
23 United States for monetary relief founded ei-
24 ther upon the Constitution or any Act of Con-
25 gTess or any regulation of an executive depart-
-s 1256 IS
12
1 ment or upon any express or implied contract
2 with the United States, in cases not sounding
3 in tort, or for invalidation of any Act of Con-
4 gTess or any reg1.llation of an executive depart-
S ment under section 5 of the Citizens Access to
6 Justice Act of 1997.";
7 (B) in paragraph (2) by inserting' before
8 the first sentence the follo\ving: "In any case
9 \vithin its jurisdiction, the Court of Federal
10 Claims shall have the power to grant injtmctive
11 and declaratory relief when appropriate."; and
12 (C) by adding at the end the following new
13 par~OTaphs:
14 "( 3) In cases othenvise \"\i.thin its jurisdiction,
15 the Court of Federal Claims shall also have supple-
16 mental jurisdiction, concurrent \vith the courts des-
17 ignated tmder section 1346(b), to render judgment
18 upon any related tort claim authorized under section
19 2674.
20 "( 4) In proceedings within the jurisdiction of
21 the Court of Federal Claims \vhich constitute jucli-
22 cial review of ag'ency action (rather than de novo
23 proceeclings), the provisions of section 706 of title 5
24 shall apply.".
-s 1256 IS
1 (2)
2 COURTS.-
3 (A) Ix GEXERAL.-Section 1500 of title
4 28, United States Code is repealed.
5 (B) TECH:\l:CAL A..'-.1) COXFOR\ITXG ..UrE:\1)-
6 ME;:-';T.-The table of sections for chapter 91 of
7 title 28, United States Code, is amended by
8 striking- out the item relating to section 1500.
9 (b) DISTRICT COGRT JURISDICTIOx.-Section
10 1346(a) of title 28, United States Code, is amended by
11 adding after paragraph (2) the follo'wing:
12 "(3) Any civil action filed under section -5 of the
13 Citizens Access to Justice Act of 1997.".
14 (c) DISTRICT COURT CrvTh RIGHTS Jl:TRISDICTIOX;
15 ABsTEZ'i'l'ION.-Section 1343 of title 28, United States
16 Code, is amended-
17 (1) by redesignating subsection (b) as sub-
18 section (e); and
19 (2) by inserting after subsection (a) the follow-
20 ing new subsections:
21 "(b)(l) Any claim or action brought under section
22 1979 of the Re1tised Statutes (42 U.S.C. 1983) to redress
13
PE:\1)EXCY
OF
CLADes
IX
OTHER
23 the deprivation of a property rig'ht or prhilege secured by
24 the Constitution shall be ripe for adjudication by the clis-
25 trict courts upon a final decision by any person acting-
-s 1256 IS
14
1 under color of any statute, ordinance, regulation, custom,
2 or usage of any State or territory of the United States,
3 that causes actual and concrete injury to the party seeking
4 redress.
5 "(2)(A) For purposes of this subsection, a final deci-
6 sion exists if-
7 "(i) any person acting under color of any stat-
8 ute, ordinance, regulation, custom, or usage, of any
9 State or territory of the United States, makes a de-
10 finitive decision regarding the extent of permissible
11 uses on the property that has been allegedly in-
12 fringed or taken, "\vithout regard to any uses that
13 may be permitted elsewhere; and
14 "(ii)(I) one meaningful application to use the
15 . property has been submitted but is denied; and
16 "(II) if the applicable statute, ordinance, regu-
17 lation, custom, or usage provides for a right of ap-
18 peal to or waiver by an administrative agency from
19 the final decision regarding the property, the party
20 seeking redress has brought 1 appeal or sought 1
21 waiver from such a final decision.
22 "(B) For purposes of subparagraph (A)(ii), the party
23 seeking redress shall not be required to apply for such an
24 appeal or waiver if-
25 "(i) no such process is available;
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1 "(ii) it cannot provide the relief requested; or
2 "(iii) the prospects of success are reasonably
3 unlikely and intervention by the United States Dis-
4 trict Court is "\yarranted to decide the merits.
5 "(C) For purposes of this subsection, a 'final deci-
6 sion' for a ripe claim under section 1979 of the Revised
7 Statutes (42 V.S.C. 1983) shall not require the party
8 seeking redress to exhaust judicial remedies provided by
9 any State or Territory.
10 "(c) 'Whenever a district court exercises jurisdiction
11 under subsection (a), in an action where the operative
12 facts concern the uses of real property, it shall not abstain
13 from exercising or relinquish its jurisdiction to a State
14 court in an action where no claim of a violation of a State
15 law, right, or privilege is alleged, and where a parallel pro-.
16 ceecling in State court arising out of the same operative
17 facts as the district court proceeding is not pending.
18 "( d) \Vhere the district court has jurisdiction over an
19 action under subsection (a), where the operative facts con-
20 cern the uses of real property, that cannot be decided
21 \\ithout resolution of a significant but unsettled question
22 of State law, the district court may certify the question
23 of State law to the highest appellate court of that State.
24 After the State appellate court resolves the question cer-
25 tified to it, the district court shall proceed \vith resohing
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16
. 1 the merits. The district court shall not certify a question
2 of State law under this subsection unless the question of
3 State law-
4 "(1) \vill significantly affect the merits of the
5 injured party's Federal claim; and
6 "(2) is so unclear and obviously susceptible to
7 a limiting construction as to render premature a de-
8 cision on the merits of the constitutional or legal
9 issue in the case.".
1 0 SEC. 9. STATUTE OF LIMITATIONS.
11
The statute of limitations for anv action tiled under
"
12 section 5 shall be 6 years from the date of the taking of
13 private property.
14 SEC. 10. ATTORNEY'S FEES AND COSTS.
15 The court, in issuing any final order in any action
16 tiled under section 5, shall award costs of litigation (in-
17 cluding reasonable attorney and. expert witness fees) to
18 any prevailing plaintiff.
19 SEC. 11. RULES OF CONSTRUCTION.
20 Nothing in this Act shall be construed to interfere
21 with the authority of any State to create additional prop-
22 erty rights.
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1 SEC. 12. EFFECTIVE DATE.
2 This Act shall take effect on the date of enactment
3 of this Act and shall apply to any agency action that oc-
4 curs on or after such date.
o
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