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CRC In The News

"Ruling Won't End Fights on Growth;
Calif. Case Changes Little Locally, Foes Say"

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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