Supreme Court Ruling a Victory for Property Rights

A unanimous decision handed down by the U.S. Supreme Court this week is a huge victory for property rights advocates and very good news for NAHB's members.

In Sackett v. U.S. Environmental Protection Agency, the high court agreed with NAHB arguments (submitted in the form of two amicus briefs) that a property owner who receives a Compliance Order from the EPA or Army Corps of Engineers should be able to obtain judicial review in court.

The case involved property owners Michael and Chantell Sackett, who owned an undeveloped half-acre lot in a residential area near Priest Lake, Idaho. When the Sacketts began the process of building their dream home by preparing the lot for development, the EPA accused them of placing fill material into a jurisdictional wetland and issued a Compliance Order requiring them to immediately remove that material and restore the wetland -- or face thousands of dollars in fines for every day they did not do so.

When the EPA denied the Sacketts' request for an administrative hearing to challenge the order, they filed an action in district court seeking relief, but both the district court and the Court of Appeals for the Ninth Circuit held that the Clean Water Act (CWA) precluded pre-enforcement judicial review of administrative compliance orders.

On March 21, every member of the U.S. Supreme Court was in agreement in deciding that "there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without judicial review." Moreover, two of the Justices (Ginsburg and Alito) wrote concurring opinions in which they explained that because the EPA had determined its jurisdiction over the Sacketts' property, judicial review was appropriate.

This decision is extremely important to our industry because home builders (like the Sacketts) are often subject to Administrative Compliance Orders with no means to challenge them, unless the government decides to file an enforcement action or the builder applies for and is denied a CWA Section 404 permit.

As of now, this is no longer the case. Instead, any builder who receives a CWA Compliance Order can now challenge that order in federal court. In addition, whereas builders have previously had no place to turn when the EPA or Army Corps determines that a wetland or water body on their property falls under the agency's jurisdiction, Justices Ginsburg and Alito have now indicated that they may in fact seek relief in court.

In an official NAHB reaction statement, Chairman Barry Rutenberg summed it up in saying, "This ruling provides a check on EPA's capricious expansion of its regulatory authority. Finally, home owners and home builders have a way of challenging EPA compliance orders before they face big fines."

Clemson: NAHB Student Chapter President Wins Scholarship

Lillian Wyckoff, NAHB Student Chapter President at Clemson University, earned a scholarship from the Retail Contractors Association.  The scholarship is awarded annually to a student who has declared an interest in pursuing a career in commercial construction.

Dorthy F. Dillard, mother of Past President Hal Dillard

Dorothy F. Dillard, mother of Past President Hal Dillard, passed away this week.  Please remember Hal and his family during this difficult time.

Dorothy "Dot" Dillard, 82, wife of Harold L. Dillard of 12 Yancey Drive, went to be with the Lord on Monday, March 19, 2012, at McCall Hospice House in Simpsonville.

Born in Greer, SC on March 26, 1929, SC, she was the daughter of the late Rev. James F. and Marie Farrow Finley.

Surviving in addition to her husband of 56 years are a son, Hal Dillard and daughter-in-law, Leah Dillard, a granddaughter, Logan Dillard and two grandsons, Hayden and Heath Dillard.

Dot was a graduate of Parker High School and a 1950 graduate of Bob Jones University. She was employed with Bell South before becoming a devoted homemaker and mother. She was a loving wife, mother, mother-in-law, grandmother and a friend to everyone she met. She was a member of White Oak Baptist Church where she enjoyed teaching Sunday School and Vacation Bible School and touched the lives of many young people.

The family would like to thank the caregivers at Interim Hospice Health Care and McCall Hospice House for their extra special care.

Services will be conducted 2:00 PM Wednesday, March 21, 2012 at The Mackey Mortuary with Dr. Jimmy Robinson and Dr. Jeff Burns officiating. Entombment will follow in Memorial Mausoleum.

The family is at the residence and will receive friends Wednesday, from 1:00 until 1:45 PM at the mortuary.

In lieu of flowers, memorials may be made to McCall Hospice House in Simpsonville.

The Mackey Mortuary. Online obituaries and guest registry atwww.mackeymortuary.

Published in The Greenville News from March 20 to March 21, 2012