No taking 

High Court OKs regulating growth on private property

The U.S. Supreme Court last week handed down a significant victory to environmentalists and dealt a blow to the property rights movement.

In a 6-3 decision, the justices ruled that local governments have the right to temporarily restrict development of private property if development would create environmental damage. Just as significant is the court’s ruling that taxpayers do not have to compensate private landowners for the temporary loss of development rights.

The ruling stems from a 1984 case originating in Lake Tahoe, where a group of landowners sued the Tahoe Regional Planning Agency (TRPA) after planners there imposed a 32-month moratorium on development. Planners wanted to buy enough time to study the environmental degradation that development was causing the lake and devise long- term solutions.

The court ruled that restricting development did not constitute a “taking” of property under the Fifth Amendment of the Constitution which states, in part, that private property shall not be taken for public use without just compensation.

Rather, the court ruled that to demonstrate a loss citizens must prove a “permanent obliteration” of value.

Another important point in the ruling was the court’s recognition of how moratoria can actually increase property values since the point of a moratorium generally is to protect environmental qualities, which in turn make a community a more attractive place to live and invest. Jordan Kahn, an attorney for the TRPA, says the ruling should give planning agencies nationwide incentive to impose their own moratoria on building when the environment could be endangered.

“I think this has a broader application across the country,” he says. “What’s good about this case is that [a moratorium] isn’t going to be an automatic taking. It’s going to be balanced.”

But, he warns, the ruling should not be construed as a red light on all development. Anytime a government imposes a moratorium on building, the reasons behind it should be sound and defensible, and should be accompanied by a strict timetable.

The TRPA’s nearly three-year moratorium to study the effects of development on Lake Tahoe’s famously clear water was reasonable, Kahn says. But he anticipates that other local governments will have a huge burden if a moratorium exceeds one year.

In Montana, according to land issues specialist and University of Montana Law Professor John Horwich, communities can impose a moratorium on development, but it cannot exceed one year.

“This case makes clear they’re a legitimate device,” Horwich says of the court’s moratorium decision.

Montana law is fairly flexible when it comes to imposing moratoria on development, says Horwich. Water quality and quantity, always hot-button issues in Montana, and existing but outdated land use policies that no longer keep pace with development would be defensible reasons for imposing a moratorium, he says. But, he adds, “Somebody’s got to make that hard political decision.”

A moratorium on subdivisions in Ravalli County, which, along with Jefferson County, is the fastest growing in the state, is precisely what the planning board had requested of the board of county commissioners in early April. It wasn’t the first time a moratorium has been mentioned, and now, with the recent Supreme Court ruling, it may get a closer look.

Ravalli County planning board member Sonny LaSalle says that the board requested a moratorium on all new subdivisions about a month ago to give not only the planning board, but the tiny, director-less staff a chance to increase their members and hire a planning director. Ravalli County has developed a reputation for being an undesirable place to work among planners nationally. The last planner came and went in less than two weeks. The planning office is staffed by the county sanitarian in a temporary role as director, but largely by a handful of secretaries and technicians who are processing all subdivision applications. At the same time, the planning board is short a couple of members. LaSalle says the moratorium request seemed reasonable given the county’s continuing growth and lack of experienced planners to deal with it. The board of county commissioners turned down the request on the advice of their attorney—and not for the first time.

“The commissioners said they had received legal advice not to do this,” LaSalle says. With this recent Supreme Court ruling, he says, the planning board may again request a moratorium. The ruling is there, but the political will may be lacking, LaSalle says. “It’s quite controversial and my take on it is that they won’t do it.”

Marga Lincoln, smart growth and transportation management director at the Alternative Energy Resources Organization, calls the ruling a victory not only for environmentalists and those concerned about responsible land use planning, but local governments as well. “This is the first good news they’ve had in this arena for a while. It’s going to empower governments to impose reasonable land use restrictions without having to pay landowners.”

Tim Davis, of the Smart Growth Coalition in Helena, says the ruling, though controversial, simply reinforces the status quo.

“Really, what it does is it just preserves the status quo,” says Davis. “It just reinforces that local governments do have the authority to regulate growth and decide what is in the common good, and balancing that with community rights and private property rights.” Each case will likely be judged on its own merits, he says.

Thanks to the Supreme Court ruling the ball is now in local government’s court. But whether local county commissions and city councils are willing to face down the fierce property rights activists in their communities and impose moratoria remains to be seen.

Kahn, the TRPA attorney, says municipalities facing rapid growth should waste no time. “If I were your planning department,” he says, “I would be getting out a moratorium ASAP.”

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