Land-use bans must be paid for

June 30, 1992|By Lyle Denniston and Timothy B. Wheeler | Lyle Denniston and Timothy B. Wheeler,Staff Writers

WASHINGTON — :TC WASHINGTON -- The Supreme Court, in a historic victory for private property rights, ordered state and local governments yesterday to pay off waterfront landowners as the price of officially banning all development along seashores or wetlands in states like Maryland.

Even if a ban on construction is needed to "avoid serious public harm," such as beach and dune erosion or flooding, compensation must be paid if the ban strips private property of all its value, the court declared in the 6-3 ruling.

For constitutional purposes, the majority said, the loss of all economic value in private holdings by keeping land in a natural state is as much a denial of rights as if the government moved in to occupy the property for its own use.

One way the government could avoid making a payoff, the court indicated, would be to prove that an owner would never have been able, under state law, to develop the land anyway. That would be very hard to prove, it said, if others along the waterfront already had been allowed to build.

In Maryland and elsewhere, the ruling was hailed by property owners like Margaret Ann Reigle, chairwoman of the Fairness to Landowners Committee, based near Cambridge. Her group, which began as a protest against federal wetlands regulations on Maryland's Eastern Shore, now claims 10,000 members in 35 states.

"It will make government bureaucrats and legislatures recognize that they can no longer use a meek and meager excuse that conservation is a good reason for confiscation," she said.

The ruling, written by Justice Antonin Scalia, was broad in its scope, establishing for the first time that a "confiscatory" regulation of land was the same as government seizure.

But the ruling also had a number of limitations written into it. The court said that government would still be able to regulate land use, by actions such as zoning or landmark preservation, but only so long as those controls did not cause the land to be "economically idle."

Another limitation was that the ruling applied exclusively to property in the form of land, not other kinds.

The ruling also stressed that it is up to a private landowner to prove that all economic value has been wiped out, before any payoff would have to be made.

"It is true," Justice Scalia wrote, "that in at least some cases the landowner with 95 percent loss will get nothing, while the landowner with total loss will recover in full" for the land's lost value. The law governing compensation, he added, "is full of these 'all-or-nothing' situations."

The decision was at least a temporary victory for a South Carolina landowner, David R. Lucas of Columbia. He had bought two lots on the Isle of Palms along the Atlantic Ocean, paying $975,000 for them. Later, a state law curbing beach development went into effect, blocking his plans to build houses on the lots.

He sued and won $1.2 million in compensation, but the state Supreme Court took that away from him. He then took the case to the Supreme Court, as a major test of property-owners' rights. It now goes back to South Carolina courts.

Ms. Reigle, in her comments on the ruling, suggested that it would not overturn or directly weaken any of Maryland's wetlands rules or other environmental land-use regulations that developers, landowners and farmers find so onerous.

Maryland Attorney General J. Joseph Curran Jr. said that, after a "very preliminary" analysis, "we don't believe it has an impact on Maryland's Critical Area Law," which restricts development within 1,000 feet of the bay shoreline.

Environmentalists in the state suggested that the ruling would not have a sweeping impact, but they said they feared it could frighten public officials who are already skittish about the political controversy over land-use regulations.

Government would only be required to pay landowners in "extreme" cases where all economic use of the property has been denied, said Ann Powers, Chesapeake Bay Foundation vice president and general counsel. "It's pretty rare for a court to find that," she added.

But Ms. Reigle disagreed, contending there were hundreds of cases in Maryland alone where landowners have been prevented from building because of wetlands regulations or shoreline building restrictions.

One such landowner who has been waiting for this case is Francis Nicholas Codd, an Arnold optician who has been denied a permit to build a house on a quarter-acre lot his family has owned on the Severn River for 30 years. "This is the best thing that's happened in a long time," Mr. Codd said yesterday.

Mr. Codd was refused a federal permit because the home he wants to build on Sullivan's Cove would be within the 100-foot setback from the shoreline required under Maryland's Critical Area law.

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