Property rights collide with public uses in Ore.

March 20, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

TIGARD, ORE — TIGARD, Ore. -- Of all the places where the decades-long "greening" of America might run smack into a crisis over urban growth, few sites would seem as unlikely as the sunny, grassy plot that runs alongside Fanno Creek -- the side yard to the Dolan family's plumbing goods store.

The creek there is only a murky little stream bisecting a town of about 32,000 people, flowing placidly under a plain concrete bridge, but now it is a stream symbolically carrying a flood of national controversy to the Supreme Court in Washington in a constitutional conflict over growth, the environment and property rights.

When that conflict is decided, the outcome could influence -- maybe frustrate -- government policy on everything from opening beaches along the Pacific shore to cleaning up the Chesapeake Bay, from sheltering owls in Northwest forests to protecting turtles in Louisiana and the furry nutria that swim in Fanno Creek.

The Supreme Court case clearly has become a national cause celebre, but at its core is a lawsuit by a 74-year-old widow, Florence Dolan, and her grown children, who operate eight plumbing supply stores and one that sells lighting fixtures. They claim that the City of Tigard is violating the Constitution's command that the government cannot take private property for "public use" without paying for it.

The city, they note, is demanding a slice of their land in return for a permit to build a new plumbing goods store along Fanno Creek. The slice -- about a tenth of their property on South West Main Street -- would be used for a green "buffer" along the stream bank, plus a 15-foot swath for a walking and bicycle path, to satisfy a city land-use plan.

They went to the Supreme Court after state officials and state courts rejected their claim that the city has a duty under the Fifth Amendment to pay for that slice.

When the court decides their case -- weeks after a hearing before the justices on Wednesday -- the outcome could go far to define the scope of the government's constitutional duty to provide compensation when it puts strict conditions on the way people use the property they own.

All of that is wrapped up in the legal fight that began when Mrs. Dolan's late husband, John, refused to give that slice of land as a condition for a building permit. If the city wants his land for public benefits, he argued vehemently, it should pay for it with taxpayer money. The city says it need not do so, because it is merely trying to enhance the quality of life in Tigard.

What the city wants is nothing new in America, but the degree of resistance it is meeting represents a real change: Property owners are fighting back as never before, stubbornly demanding payment whenever government rules and regulations restrict the uses of their property to the point that its value drops, maybe even to zero.

For more than a century, local governments have demanded that property owners build sidewalks or curbs along streets, and for decades suburban tract-home developers have been told to put in streets and other improvements. But the price tag that cities, counties and states have been putting on development has gone up sharply in recent years, and the Dolan case seems likely to test the limits.

It is something of an irony that the Supreme Court faces that test in a case from Oregon -- the green-conscious state that made itself famous by rigorously curbing growth outside the state's cities and already built-up areas. It put 26.5 million acres out to pasture.

Around the nation, today's "greens" -- the name given to the land-use movement and the nation's conservationists -- are on the city's side of the case.

On Mrs. Dolan's side is a younger but very scrappy "property-rights movement," a band of about 500 organizations that believe the environmentalists at last have gone too far. Those forces are locked in a legal and policy war across the country.

In Maryland, the war is being fought over such mandates as a state forest conservation law, requiring tree-planting on cleared land before it can be developed or replacing trees cut down for development, and a state law that puts a protective "buffer" around wetlands with an added command to create some wetlands to offset those that are disturbed.

The Dolan case could also affect a host of other land- and water-use controls throughout Maryland.

Depending upon how far the court goes, land-use activists say, a "worst-case" decision could limit the "critical areas" restrictions on building homes close to the Chesapeake Bay's waters, cut back sharply on state, city and county controls over everything from water quality to open space to parks, and might even raise some questions about some new limits on crabbing and some old limits on oystering.

With the rising intensity of the greens vs. property owners controversy nationwide, feelings are turning hard, tempers are rising, and accusations are piling up.

Radical environmentalists'

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