Whose land, whose rights?

May 20, 2002

A TIDE BEGAN to turn this spring. After moving forward for several years, advocates of the so-called property-rights movement suffered setbacks on both the state and national level. They had started with a reasonable cause, but they took it too far. They overreached, and now the flow is against them.

Their idea has a certain kind of surface appeal. Any landowner ought to be able to say, "It's my property and I can do with it what I want." Certainly, plenty of landowners have run into frustrations at one time or another and at least entertained that thought. "But oh, no, here comes the government to tell me what I can and cannot do."

What does the government say? "You can't build here. You can't build in that wetland. You have to preserve that buffer. You can't build until there's a supply of water in there." And so on. In the West, especially, owners resented these sorts of controls, and organized against them. But in Maryland, as well, developers kept finding loopholes in the state's Critical Area law, and successfully moved ahead with construction within the Chesapeake Bay buffer zone.

Federal courts, and, recently, Maryland courts, backed the developers every time.

What the property-rights people never really articulated was this: The idea of government control that they were attacking was the same idea that lies behind ordinary zoning laws. It's not a very large logical step to go from building condos in a bay buffer area to building a steel mill in, say, the Greenspring Valley - or in downtown Baltimore - if that's what some property owner decided to do.

In the end, though, the builders did themselves in.

The challenge to Maryland's Critical Area law had become so flagrant that the General Assembly moved this year to close the loopholes. And, for good measure, it brought coastal bays in Dorchester County under the same protection. The changes should make it much harder for the courts to go along with proposed exceptions.

Nationally, a case that arose among landowners around Lake Tahoe came before the Supreme Court. They argued that a temporary moratorium on construction around the lake - imposed until a plan could be worked out to preserve its crystalline waters - prevented them from realizing the full potential value of their property.

Environmentalists of course pointed out that if they destroyed the lake they'd destroy the value of their property more thoroughly than the government could, but that was not the crux of the case.

Because the moratorium was temporary, the Tahoe property owners had to argue that any restriction on their land should require compensation. If the Supreme Court had bought that argument, it wouldn't have meant a flood of compensation; it would have meant the practical end of land-use laws. The people who brought the Tahoe suit took an extreme position against the regulation of land - and they lost.

Moratoriums are common. Local governments often tell developers to wait for roads, or wait for water. Sometimes they're maddening and sometimes they're misapplied. Other land-use laws can seem restrictive or unfair. But the point is this: What one owner does with his land will inevitably affect his neighbors, one way or another. People don't live on their own little asteroids. That's why the controls are there - because everyone's in this together.

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