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The Washington Post
Friday, April 26, 2002
Michael Laris
When the U.S. Supreme Court ruled this week
that local officials may temporarily ban development without
compensating land owners, a wide range of legal observers
said the decision was a setback for the national property
rights movement.
But across the Washington area, developers, officials and
others involved in fights over growth said the ruling would
not fundamentally alter the dynamics of a struggle over development
that has continued for decades around the nation's capital.
Longtime Northern Virginia developer and land use lawyer John
T. "Til" Hazel Jr. said he was disappointed in the
ruling and fears it will spur on officials who he said already
have run roughshod over the rights of landowners. But he added
that the court's 6 to 3 opinion was less a defeat for property
rights advocates than a failure by the movement to secure
broader rights.
"Anything that appears to derogate property rights gives
comfort to the local governments that are out grabbing,"
Hazel said. "The property rights side was trying to push
it a little further in the property rights direction, and
the court backed off that."
Officials from governments that have embraced the region's
most restrictive growth control measures said the court's
ruling reaffirmed what they already knew -- namely that governments
are empowered to impose reasonable land use regulations for
public benefit without paying land owners. But they said the
ruling is not a breakthrough for them.
"If this had gone the other way, it would have been very
troubling for governments everywhere. . . . It would have
been very difficult for the public to do its job," said
Charles W. Thompson Jr., Montgomery's county attorney. Now,
he said, counties must simply continue their long-standing
legal balancing acts.
"We are all appreciative of people's rights to property,
[but] we are trying to make sure . . . they are not causing
harm to their neighbors' property and the community as a whole,"
Thompson said.
That does not mean that the ruling -- which was hailed and
disparaged by opposing sides in the national fight over the
growth, development and quality-of-life issues often covered
by the catchall term "sprawl" -- will not have a
large impact in quarters far beyond Lake Tahoe. Development
around that pristine body of water straddling the California-Nevada
border was the subject of the case on which the court ruled
Tuesday.
In the case, the justices ruled that a temporary ban on building
should not automatically be considered a "taking"
that must be compensated for by local officials. Instead,
such cases must be considered individually, the court ruled.
The court also clarified its position on the "parcel
as a whole" issue. Some state courts have ruled that
banning development on part of a parcel -- a stream bed, for
example -- could result in a takings claim, even if development
is allowed elsewhere. But on Tuesday, the court said judges
should consider the effect on the entire property.
Timothy Dowling, head of Community Rights Counsel, a Washington-based
legal group that filed a brief in support of the Lake Tahoe
regulators, said the court's ruling was good news for environmental
and planning efforts.
"State and local officials have been losing every one
of these cases for the last 15 years. The whole tenor of the
opinion is just so different than the losses we have suffered,"
he said.
John Echeverria, executive director of the Georgetown Environmental
Law and Policy Institute, which also filed a brief in the
case, said the basic message of the ruling is that "even
a stringent regulation that clearly advances a worthwhile
public purpose and is applied equitably across the county
is not likely to raise a serious takings problem."
But he added that "takings law is still not a black-and-white
[issue]. It's still a balancing act, and it's still case by
case."
Nowhere is that clearer than in Loudoun County, where eight
of nine supervisors were elected on promises to slow growth.
Their efforts to do that have brought them into conflict with
landowners, some of whom, like John Nicholas, have sued the
county.
Nicholas said the Supreme Court ruling will not weaken his
case against the county, which turned down his application
to build a large planned community near Dulles International
Airport. He said the county has applied its existing development
rules in an unreasonable way and is moving to institute slow-growth
rules that often have no legitimate basis. He said he believes
he will win his legal challenge on its merits, despite the
legal "hairsplitting" of the nation's top court.
"I would ask you, 'Is making Loudoun County safe for
multimillionaires the public good?' " he said, speaking
of efforts to dramatically limit the number of houses that
can be built per acre in the county, which critics have called
"snob zoning."
But Loudoun Supervisor James G. Burton (I-Mercer), a slow-growth
advocate, said the Supreme Court decision was reassuring.
Now, "I don't fear those threats that involve takings
that have been bandied around by some people," he said.
Burton said that it would be foolish to interpret the ruling
as giving the county a free hand, but "it helps give
us even more confidence that we're on the right track."
The ruling could lead locals to excess, according to Gary
Garczynski, the Woodbridge-based president of the National
Association of Home Builders, who said in a statement that
"the Supreme Court's decision could have a pernicious
side-effect: moratorium mania." In an interview, he said
that such regulations are a blunt tool that should be bypassed
for more serious planning efforts.
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