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Hotly Debated Land-Use Issue Before High Court

March 30, 1986|BRADLEY INMAN | Special to The Times and Inman is an Oakland-based free-lance writer. and

In a major land-use legal fight, the "free marketeers" are taking on the "police-power hawks."

The brawl is taking place in the U.S. Supreme Court, with the hawks defending the right to public regulation and the marketeers promoting private property and "just compensation."

On Wednesday, the court heard oral arguments on the case. Not surprisingly, the dispute began over a piece of land in Northern California.

Except for an abandoned drive-in theater nearby, the 44-acre parcel doesn't look at all controversial. Nevertheless, this vacant Yolo County field is at the center of a hotly debated property rights case being considered by the high court. Its decision will shape real estate development far beyond the borders of the acreage involved.

The property owners--the partnership of MacDonald, Sommer & Frates--contend that Yolo County and the city of Davis rendered their property useless in a zoning action and, consequently, the governmental bodies are liable for their losses. The land owners are suing for financial damages or "just compensation" as it is referred to in legal circles.

Denied by County

The dispute began in 1975 when the property owners first asked the county to approve a subdivision for 159 single-family homes. Although the land was already zoned residential, the county objected to the proposed development. With the city of Davis at its side, Yolo County denied the proposal on the grounds that the housing development was inconsistent with the county's plan for "sound and orderly" growth.

Unhappy with the decision, the landowners unsuccessfully went to Superior Court, and later, the state Supreme Court, for relief; they claimed county regulations were creating a public benefit at their expense. The California courts upheld state law that disallows "just compensation" payments.

In the appeal to the U.S. Supreme Court, the case rests on one simple sentence in the Fifth Amendment of the Constitution: "Private property shall not be taken for public use except upon just compensation."

The property owners are accusing the county of "taking" their property through regulation and, therefore, violating the Fifth Amendment. The county argues it has the right to plan, and that there has been no violation of the Constitution.

Seek Just Compensation

Underlying the controversy are two conflicting--yet equally strong--California values: growth and no growth. On the one hand, many California communities have taken a sophisticated and aggressive approach to protecting the environment and controlling development. At the same time, pressures for development are very strong in the state.

"A lot of builders are affected by local zoning regulations that effectively destroy the use of their land; they are entitled to a just compensation remedy," says William Ethier of the National Assn. of Home Builders.

Environmentalists see it differently. "People have the right to own and use property but not necessarily change the use," says a report soon to be published by a conservation group, People for Open Space (POS). "It's a privilege, not a right, to change the use of land."

The divergent opinions of Gov. George Deukmejian and Atty. Gen. John Van DeKamp illustrate how polarized many Californians are in their thinking on private property rights and "just compensation."

Governor to Write

Standing up for the property rights position, "the governor supports 'just compensation' when property owners have been deprived of use by government regulation," says Vance Ray, legal adviser to the governor.

Van De Kamp "will file a brief in support of Yolo County because of his concern over the ability of local government to plan and modify land-use plans," according to Jan Stevens, deputy attorney general. "When you find a local regulation unworkable or unfair, the government agency should be given the choice of purchasing the land or invalidating the regulation."

The Yolo case is not the first time that the U.S. Supreme Court has considered a matter involving "just compensation." In the last six years, it heard three similar cases--two from California. But the court dismissed each on technical grounds.

In one instance, the court ruled local regulations must be "final enough" to measure before awarding damages. In another case, the court said a city ordinance that changed the zoning to low density on a parcel of land in Tiburon had not resulted in any economic loss to the owners.

Waiting for Right Case

Nevertheless, the court has not flatly turned back the notion of "just compensation." The court's obliqueness on the issue--along with other signals from members of the court--has given environmentalists, some cities and counties reasons to fret and has given property rights advocates hope.

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