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Property Owners Have Rights, Too : The Supreme Court reaffirms that their public entities cannot cavalierly toss out their interests in favor of the community's.

July 03, 1994|MICHAEL M. BERGER | Michael M. Berger is a land-use lawyer in Santa Monica who has argued constitutional cases in the U.S. Supreme Court on behalf of property owners

The U.S. Supreme Court stuck a sharp pin into land-use regulators. In Dolan vs. City of Tigard, the court placed severe restrictions on the ability of local government agencies to demand "gifts" of land as conditions for permission to develop other land.

Although the case involved a small town in Oregon, the ruling in late June will have far greater impact in California, where this practice of extorting (the Supreme Court's word for it) property is rampant. Aggressive government agencies and a strident environmental movement have created a vigorous and insistent system of land-use regulation in California that is legendary throughout the country. California's courts have shown great deference for whatever the regulators want to do. Years ago, the dean of governmental land-use lawyers suggested that a California property owner, instead of challenging a regulation in a state court, should simply slit his throat. It would be quicker, cheaper and easier--and lead to the same result.

Florence Dolan wanted only to expand her electrical and plumbing supply store. Instead of occupying 10,000 square feet of her 70,000-square-foot lot, the store would cover 17,000. The city agreed to issue the permit, but only if Dolan gave the city 7,000 square feet of land to increase the capacity of a creek, install a "greenway" along the creek and build a bike path. The city's justifications were that the increased size of the store could increase traffic and the need for flood control, which these improvements might alleviate.

The Supreme Court concluded that, if a city is going to take someone's land, firmer justification than that is needed in order to avoid the constitutional command to pay just compensation.

Pragmatically, the court affirmed the basic rule that property cannot be taken without payment. To permit government to do otherwise, the government must satisfy the burden of proving that the project proposed by the property owner would actually cause significant problems for the rest of society, which the land demanded as a "gift" would actually alleviate. The city had not proved that its justifications were genuine.

A spokesman for the Audubon Society probably best captured the impact of the new decision when he complained that "this is an extraordinary intrusion by the court into the authority of local government. It elevates the interests of property owners over the interests of the community as a whole."

Actually, what the decision does is enforce a protection that has been part of our constitutional heritage. The Fifth Amendment has always "elevated" the interests of individuals over those of society--that's what the Bill of Rights is all about. The First Amendment, for example, has been used to protect the rights of nude dancers, flag burners and political protesters of all stripes. What the Supreme Court said expressly in this case is that the Fifth Amendment rights of property owners are entitled to no less protection than the First Amendment rights of adult theaters, draft protesters and newspapers. If that "elevates the interests of property owners over the interests of the community as a whole," it is high time.

Local governments and environmental activists have gotten used to treating property owners who need development permits as convenient fish in a barrel. The property owners' desire to do more than stare at their land has emboldened regulators to extract increasingly punitive "gifts" of property (or cash in lieu of property) in exchange for development permits. Often, the price demanded as ransom bears little, if any, relationship to the project proposed by the property owner. The process has been used widely by local governments to obtain substantial parcels of property. Without payment.

It is this game which the Supreme Court has said must end. The rights to life, liberty and property are protected by the same constitutional provision. None can cavalierly be tossed aside because it has suddenly become politically or environmentally correct to preserve some parcel of swamp, desert or shrub land. The issue is ends and means. Most Bill of Rights cases are reduced to that common denominator. Our Constitution proclaims that the property of private citizens will not be taken from them unless they receive compensation. Regardless of the reason for the seizure. The Supreme Court has reaffirmed the continuing force of that concept. It is now up to the rest of us to respect it.

If the city of Tigard wants Dolan's land badly enough, it can buy it. The same goes for California communities that have acted in similar fashion.

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