U.S. ruling on property rights worries Hampstead, county

August 24, 1994|By Joe Mathews | Joe Mathews,Sun Staff Writer

As Hampstead weighs the possibility of imposing a 90-day delay on approval of any building projects, both town and Carroll County officials say they are worried that a recent Supreme Court decision favoring property owners' rights could make it difficult for them to manage development.

In a June decision, the high court ruled in favor of Florence Dolan, a store owner in Tigard, Ore., who sued the city when planners forced her to give up 10 percent of her property as the condition of a building permit.

The court's 5-4 decision was widely hailed as a victory for property owners. In handing down the ruling, justices said cities must prove that any restrictions on the rights of property owners will have their intended results -- whether those are improving the environment, preventing crowding of schools or controlling traffic congestion.

Hampstead officials do not believe that a 90-day permit delay -- which has been recommended by the Town Council and will be considered next month by the town Planning and Zoning Commission -- would be affected by the Dolan ruling. Hampstead has asked for the delay because the town believes its schools are overcrowded.

"I don't think Dolan has any implication on this particular delay," said Town Attorney Richard C. Murray. "But I think its potential effect on the town is a genuine concern.

"Lawsuits are always possible," Mr. Murray added. "It's a question of reasonableness, and I think the approach the town is taking is quite reasonable."

The town is concerned that by restricting development, it could leave itself open to suits by property owners who aren't able to build on their land as they please. Hampstead officials have said the process of proving that restrictions are actually reducing school crowding could be costly.

Arthur Moler, who was the council's lone vote against recommending the 90-day delay, said he hopes the Supreme Court decision will force the town to take developers' interests more seriously.

"The Supreme Court decision certainly recognizes the rights of the developers," Mr. Moler said.

K. Marlene Conway, assistant director of planning for Carroll County, said the case also poses problems for the county. Ms. Conway said Carroll could perhaps be liable for restrictions on development undertaken by a town if they are based on a lack of adequate facilities, for example, schools.

She said, "The issue becomes: Does the town have jurisdiction to act on development on the basis of schools, when schools are a county matter?"

Asked about Dolan's potential impact on the county, County Attorney Charles Thompson turned prickly. "So basically," he said angrily, "you want a list of things people could sue us for."

Mr. Thompson says the county has no cause for concern because it is always careful to justify any restrictions on development.

In the Dolan case, the city of Tigard, a Portland suburb, said the land was taken to offset potential problems from new building on the store owner's property, including additional water runoff into a nearby stream and increased traffic.

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

John Burrell, who heads the Maryland Municipal League, said the state's towns have been made aware of the ruling.

But he added that no towns have called him to ask questions about the decision's impact or to express concerns.

"We have advised the towns of the decision and have advised them to be cautious," Mr. Burrell said.

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