Justices to decide development issue Do landowners pay for public services?

November 30, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Taking on a case with broad implications, the Supreme Court agreed yesterday to spell out the power of states, counties and cities to require property owners to build and pay for public works in return for development permits.

A woman who wanted to expand her plumbing supply store in a suburb of Portland, Ore., is claiming that, as a condition of approval, she is being forced unconstitutionally to finance public services that should come out of the city government's budget.

Behind that specific dispute lies a major question over government authority to get developers to pay for streets, parks, schools or other public facilities that supposedly must be built to serve new projects.

In many instances in Maryland and other areas, developers are ordered to cover the cost of the expected impact of their projects on public services in return for expansion or development permits.

In the current case, Florence Dolan of Portland, and her late husband, John, operated the A-Boy Plumbing store in the Portland suburb of Tigard. They planned to tear down a 9,700-square-foot store and replace it with a 17,000-square-foot one. The city said it feared this would increase street traffic and increase storm water runoff.

The city made it a condition of her expansion plans that she provide a green "buffer" alongside a nearby creek to help reduce storm water runoff, and that she build a bicycle and pedestrian path on the edge of her property.

Such runoff controls, stream "buffer" and parkland requirements are typical under local zoning and land-use planning laws in many communities.

The case will be a test of how far the government may go to impose those requirements, without violating the Constitution by taking private property without paying for it. Under the Fifth Amendment, the government is allowed to seize private property for public use, but only if it pays for that.

The Oregon woman wants the court to lay down the rule that all such "impact" requirements on private property-owners are unconstitutional unless the public services are absolutely necessary to deal with the effect a new project will have on the community.

The court also dealt with two other business-related cases yesterday. In one, it turned aside a constitutional challenge to laws in 14 states that give all doctors and hospitals a chance to treat patients who are covered by employee health plans that are part of health care provider groups.

The court also refused to hear a constitutional challenge to state income taxes by Geoffrey Inc., a Delaware-based company that owns all the trademarks for goods sold in Toys 'R' Us stores. Geoffrey argued that it should not have to pay taxes in any state where its only business was to collect royalties for the use of its trademarks.

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