Supreme Court focuses on details, not broad issues, in Oregon land dispute

March 24, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court scanned the constitutional horizon yesterday for a way to protect private property rights and the environment at the same time, but found itself focusing on the minute technicalities of an Oregon town's laws.

Demonstrating that a major ruling sometimes depends heavily upon how the justices see minor facts, the court pored over the details of a small-town scrap between an elderly woman's family business and the government of the Portland suburb of Tigard.

The town is demanding a piece of the woman's land to be used for a green "buffer" and a bicycle and walking path in return for a permit to build a new plumbing goods store.

That dispute puts before the court the legal version of a heated national debate over the government's power to take over land, or control it, without paying the owner.

The outcome could enhance, or complicate, a wide range of national, state and local policies to protect the nation's air, water, urban life and wildlife.

When the justices did examine, at least briefly, large constitutional issues at stake in that controversy, it appeared that they were seeking some formula that would require a government agency to give specific proof that a piece of property would threaten or burden civic needs before officials could limit that property's use.

The lawyer for businesswoman Florence Dolan, David B. Smith of Tigard, offered tentative suggestions on how to define that kind of link but said it would be "difficult to articulate in simple terms."

Justice Sandra Day O'Connor retorted: "Then how do you expect us to?" He tried again, with an even more wordy formula.

With only passing glances at the implications of the case for the future of the Fifth Amendment clause requiring the government to pay for property taken for "public use," the court frequently went back to the specifics of Mrs. Dolan's case.

Justice Antonin Scalia, a strong defender of property rights, dominated the one-hour hearing, asking 35 of the 98 questions that came from the bench. With Mr. Scalia's coaxing, Mrs. Dolan's lawyer portrayed her as a property owner with no real defenses to the Oregon city's demand for a tenth of her land as part of a growth-control plan.

Mr. Smith said the city "wanted her land for free, because it wanted it to fulfill its long-standing commitment for a park and a pedestrian bikeway."

When she wouldn't hand over the land, he noted, the city denied her a permit to expand her store alongside a town creek.

Justice Scalia got Mr. Smith to say that there was no proof that Mrs. Dolan's property would cause any greater problems to the environment than would property farther from the creek.

Then Mr. Scalia noted that owners of property farther away were not asked to make the sacrifice that Mrs. Dolan was, to give up land in exchange for a building permit. Mr. Smith agreed.

When Justice David H. Souter tried to find out what Mrs. Dolan would lose in the bargain, Mr. Smith at first said she would lose the chance to choose the landscaping "to make the site more attractive."

But Mr. Scalia reminded him that she also would lose the right to keep people off her land, commenting, "That's pretty important, isn't it?" Mr. Smith replied, "Yes, it is."

When the city's lawyer, Timothy V. Ramis, took a turn, Justice Scalia pummeled him with sometimes sarcastic questions about catering to bicycle riders, who would benefit especially from the city's plan for Mrs. Dolan's creek-side land.

When Mr. Ramis said the city was worried about traffic problems on Main Street, with more shoppers coming to Mrs. Dolan's store and other retailers, Mr. Scalia shot back, "And the solution to that is a bike path?"

As the city lawyer struggled to provide answers, the justice suggested that the city's interest in encouraging bicycle-riding meant it expected shoppers to bicycle to Mrs. Dolan's store. Mr. Ramis tried to refute that suggestion, but Mr. Scalia continued his ridicule: "There are lots of bike paths around Washington, and I have never seen people on bikes carrying shopping bags."

Mr. Ramis sought to convince the justices that Mrs. Dolan was being treated equally with other property owners in town and that she could have suggested alternatives to the plan the city had for her property. He ticked off a number of ways, leading the justices into a review of local development-control laws.

Mr. Smith countered that the record shows that the city would not allow Mrs. Dolan to choose the options Mr. Ramis said she had.

The court is expected to rule on the case before summer.

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