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regulations issued pursuant to the act.135  That amendment was adopted and incorporated into S. 632.  During the hearings on S. 268, the propriety of that amendment was discussed.  Questions about the potential effects of this amendment were raised by several private persons and government officials.  John Whitaker, Acting Secretary of the Interior, summed up the Committee's opinion by stating:

Since the right to petition for compensation for an unconstitutional denial of due process would exist irrespective of [the Jordan amendment], that section could be construed as requiring compensation for any restricted use under the state's land use program whether the restriction was constitutional or not.  This undercuts a fundamental purpose of the bill which is to encourage states to use their regulatory authority to achieve land use objectives to the fullest extent permissible under the federal and state constitutions.136

The Committee chose to delete the Jordan amendment and replace it with the following:

Nothing in this Act shall be construed as enhancing or diminishing the rights of owners of property as provided by the Constitution of the United States or the constitution of the State in which the property is located.137

It was believed that this wording assured property owners that their constitutional right to compensation for an unconstitutional taking of their land was protected.138

    ("Any person having a legal interest in land, of which a state has prohibited or restricted the full use and enjoyment thereof, may petition a court of competent jurisdiction to determine whether the prohibition diminishes the use of the property so as to require compensation for the loss and the amount of compensation to be awarded therefor."  S. 632, §303(b)(2)(E), Congressional Record, September 19, 1972, at 31220.

    (Senate  Report S. 268, supra note 116,  at 56.

    (S. 268, as reported, supra note 124, at §203(f).

    (Senate Report S. 268, supra note 116, at 56.


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