Justices limit taking of private property

June 25, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun Sun staff writer Timothy B. Wheeler contributed to this article.

WASHINGTON -- In a potent victory for the nation's newly militant defenders of private property, the Supreme Court sharply narrowed yesterday the power of government to take away land rights as a condition for allowing development.

Splitting 5-4, the court relied on the constitutional clause that says government must pay compensation for "taking" property.

That clause, the court majority said, puts a distinct curb on government demands that a landowner forgo property rights to qualify for a benefit from the government.

Land-use planning in an age of increasing urbanization is "laudable," the majority said, "but there are outer limits to how this may be done."

The ruling opened a new legal era for property owners and potentially cleared the way for challenges to environmental laws, such as those that protect the Chesapeake Bay.

It also appeared to set the stage for a final victory for an Oregon widow and her family business partners in a years-long fight with local officials over the planned expansion of their plumbing supply store.

The City Council and local planners in the Portland suburb of Tigard insisted that the store's owners give up 10 percent of their property for green space and a bike and walking path as a condition for a building permit.

That condition was imposed to offset potential problems from the development: added water runoff into a creek and more traffic on city streets.

The Supreme Court decision did not nullify that condition, but it left city officials with a new burden to justify their demands.

Dan Dolan of Tigard, president of a Portland-area chain of plumbing supply stores and the son of co-founder Florence Dolan, hailed the decision as a "much needed precedent to stop governments at all levels from misusing . . . authority to acquire land or money on the cheap."

The decision could threaten Maryland's laws protecting the Chesapeake Bay. Those laws are aimed at limiting waterfront development, protecting wetlands and restoring forestland, according to Margaret Ann Reigle, head of the Fairness to Land Owners Committee in Cambridge. "The government will have to quantify the impacts and justify the restrictions, instead of just saying 'It's good for the bay,' " she said.

Among the restrictions vulnerable to challenge, she contended, are state and federal requirements to create two acres of wetlands for every acre developed, and a state law requiring developers to plant trees where none existed in an attempt to restore woodlands.

Ms. Reigle said the ruling posed a constitutional challenge to parts of the state's pioneering Critical Area law, which prohibits building within 100 feet of the Chesapeake Bay and allows only one home on every 20 acres of pristine waterfront.

Disputing Ms. Reigle, Maryland Attorney General J. Joseph Curran Jr. said his office's "initial examination" of the ruling indicated that it will not force "a big change from what we're doing now. The government can impose reasonable restrictions

on the land."

'Stumbled badly'

One of the dissenting justices, John Paul Stevens, wrote in protest: "Property owners have surely found a new friend today."

He said the court majority had "stumbled badly" by trying to second-guess government efforts to slow growth and improve the environment.

The ruling comes as property rights activists have grown more aggressive in using the "takings" clause of the Constitution to thwart government regulation of property.

Just this month, the U.S. Chamber of Commerce's board of directors urged Congress to require government agencies to issue a "takings impact" statement on every official action: that is, to assess the affect on private property values.

Sympathetic members of Congress have sought to add property rights "riders" to many pending measures involving government regulation.

The court's decision did not say that government must pay compensation every time it takes action that reduces property values.

It ruled that compensation may have to be paid if the government puts conditions on use of property but cannot show a tie between those conditions and the civic problems it is trying to head off.

It is up to the government agency imposing the controls, the court majority said, to show a "rough proportionality" between the controls and the harms it seeks to prevent with those controls.

For example, in the Tigard case, the court majority cast doubt on the city's claim that it had to take ownership of part of the property for flood control along a town creek, and that it needed a piece of the property to build a bike and walking path to cause people to use their cars less.

Chief Justice William H. Rehnquist, who wrote the ruling, said there is no constitutional need for a "precise mathematical calculation" between the harms foreseen and the conditions being imposed.

Must prove benefit

But, he added, "the city must make some effort to quantify its findings to support" the conditions it wants to impose before issuing a building permit.

"The government," Mr. Rehnquist wrote, "may not require a person to give up a constitutional right -- here the right to receive just compensation when property is taken for a public use -- in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit."

In the Tigard case, that appeared to mean that the city could not force the Dolan family to cede land to the city in return for a building permit, without proof the action would actually achieve its environmental aims.

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