Another High Court Compromise PROPERTY RIGHTS

July 05, 1992|By TIMOTHY B. WHEELER

Francis "Nick" Codd was overjoyed last week when he heard that the Supreme Court ruled that property owners may be entitled to compensation if government regulations deprive them all use of their land.

The Arnold optician has been trying in vain for two years to get the permits he needs to build a house on the Severn River. His family has owned a quarter-acre waterfront lot in Severna Park for three decades, long before passage of the state and federal laws designed to protect wetlands and the Chesapeake Bay that have denied him his dream home.

Now, armed with the high court's decision in David H. Lucas vs. South Carolina Coastal Council, Mr. Codd says, "I'm hoping to break the logjam with regulations so we can get our building permit."

But Mr. Codd shouldn't hold his breath. For while the Supreme Court's Lucas ruling may ultimately help his case, the court did not deliver the sweeping victory that property rights advocates had hoped for -- or that environmentalists had feared -- when the justices agreed last year to hear it and two other cases claiming that government regulations amounted to an unconstitutional "taking" of their land.

Like an approaching storm, the property rights movement has been gradually building nationwide since the mid-1980s, fueled by landowners' resentment of tightening government restrictions on destroying wetlands and building along shorelines. Encouraged by powerful farming, oil and real estate interests, it has mounted a growing political and legal challenge to the environmental movement and to regulations aimed at preventing pollution or destruction of rare plants and animals.

In last week's closely watched case, the court decided that David Lucas, who owns two waterfront lots on the Isle of Palms near Charleston, may deserve to be compensated because of a 1988 South Carolina beach protection law that barred him from building on them.

Mr. Lucas had paid nearly $1 million for the lots in 1986, with the idea of erecting houses alongside other beachfront homes already there. But two years later, that state's legislators enacted a law aimed at halting waterfront development considered harmful to the ecologically fragile beach and dunes. The state also claimed that homes built too far seaward threatened the life and property of other homeowners if the area was hit by more storms such as Hurricane Hugo, whose winds and waves ripped buildings apart and flung them into each other.

Historically, the courts have held that government may restrict or even ban activities deemed harmful to the community. Last week, however, the Supreme Court majority, in an opinion by Justice Antonin Scalia, declared that prevention of "nuisances" or "noxious uses" was an insufficient reason to deny someone all use of their land without paying them for it.

But while the Supreme Court's 6-3 decision rejected the state's legal justification for denying Mr. Lucas building permits, it did not flatly rule that South Carolina had effectively "taken" his land without compensation, in violation of the Fifth Amendment protection against government seizures of private property.

Instead, the case was sent back to South Carolina's supreme court for reconsideration of that question. The Supreme Court said the state may still be able to avoid paying Mr. Lucas or granting him a building permit if it can find some justification in other statutes or in that state's traditional common law for preventing possibly harmful beachfront construction.

Perhaps the most telling sign of just how murky was the court's ruling is that both sides in the growing legal and political dispute over property rights found something in it to cheer them.

Environmentalists contended it would apply to only a few "extreme" cases where government regulations have rendered land essentially worthless by forbidding any use of it.

"It's pretty rare for a court to find all 'economically viable' use is gone," said Ann Powers, vice president and general counsel for the Chesapeake Bay Foundation. That was the finding of the South Carolina trial court on which the Supreme Court relied.

In Maryland, Attorney General J. Joseph Curran Jr. hastened to declare that the Lucas ruling was no threat to the state's 1984 "critical area" law, which sharply restricts development within 1,000 feet of the Chesapeake Bay and its tidal tributaries.

The reason for that reassurance was that the critical area law "grandfathered" or exempted lots that were eligible for building permits before the law took effect, explained Robert Percival, a University of Maryland law professor.

Property rights advocates acknowledge they failed to get the Supreme Court to declare that government must pay when regulations reduce the value of a piece of land, even though it may not be rendered totally "valueless." Such "partial takings" might occur when wetland laws restrict how much of a parcel can be developed, they said.

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