Thanks to a major push by the NAHB, home builders are finally getting their day in court and prevailing on issues that have major repercussions for the cost of housing. Nobody wants to become embroiled in a lawsuit if they can help it. But there are times when legal action is the only remedy, and unfortunately, lawsuits are the only language that many government regulators and bureaucrats understand.
Environmental and anti-growth groups understood this long before we did and often trounced us in court. But we have caught up with the opposition. Increasingly, our arguments on behalf of a fair, commonsense approach to decisions affecting housing affordability are prevailing.
In Santini vs. Connecticut Hazardous Management Service, a federal appeals court agreed with the NAHB that property owners who claim that their Fifth Amendment property rights have been violated by land-use regulations are entitled to have their cases heard in a federal court. The federal courts have told builders that these cases must be heard in state court first, but the reality is that, even after developers spend years going through this process, when the cases arrive back in federal court they are thrown out, because a state court has already heard the facts. This latest ruling establishes a precedent, and we are hopeful that it will help open doors to builders seeking to defend their constitutional rights.
In a victory for those who believe that regulation under the U.S. Endangered Species Act has strayed far from what the law originally intended, a federal appeals court agreed with the NAHB that the U.S. Fish and Wildlife Service acted arbitrarily and capriciously when it proposed habitat for ferruginous pygmy owls in Arizona. The court accused the service of using bad science when it decided to impose land-use restrictions that could add as much as $12,000 to the price of a new home in the Tucson area. The NAHB, the Southern Arizona HBA, and the HBA of Central Arizona successfully argued that the service, in its rush to preserve land for the owls, overlooked two significant facts: Pygmy owls are plentiful in Mexico, and they are relatively scarce in Arizona, simply because it is the northern fringe of their range.
In another recent case, a federal appeals court ruled that man-made roadside ditches could now be regulated under the Clean Water Act. The decision, in U.S. vs. Deaton, raises disturbing questions, and it has opened new concerns about unbalanced regulation under a law that once again has been pushed far beyond its intended purpose. In light of this, the NAHB has formally asked for a re-hearing of the case and plans to ask the Supreme Court to review the decision.
Nobody said going to court would be easy. But when discussions break down and cooperation fails, the judicial system is an appropriate place for the voice of the nation's housing industry. That is why you can expect to hear even more from the NAHB in the judicial arena.