Note: This article is a sidebar to one of this issue’s feature stories: ‘Wise use’ plans abhor change.
Planners and elected officials deciding land use tend to shudder when you mention it: takings.
Just how far can a community go with regulations before an irate, and often rich, landowner slaps back with a lawsuit claiming the government has breached the U.S. Constitution by taking private property without compensation?
Usually, a community has more authority than it realizes, says Ed Ziegler, executive director of the Rocky Mountain Land Use Institute at Denver University. “You can take private property; you just have to do some reasonable planning,” Ziegler says.
Landowners lose more than 90 percent of takings lawsuits brought nationally, Ziegler says.
Ziegler says the courts have established that a taking doesn’t occur simply because a regulation has reduced either the market value or profit from an intended use of a parcel of land; by one standard the courts apply, to prevail in a lawsuit, a landowner must have no economically viable alternative use.
A community can downzone (rezone for less development) or enact an ordinance preventing developers from building in critical wetlands, for example, as long as landowners are left some form of land use, such as hunting or other forms of recreation, Ziegler says.
“Too many communities accept the big lie that they can’t downzone because they will take someone’s property,” he says.
Ziegler warns that local governments which seek to extract money or land set-asides from developers must be careful, however, to meet the test of two U.S. Supreme Court decisions.
A 1987 ruling had to do with the California Coastal Commission requiring a homeowner to provide the public with beach access in exchange for permission to add another story. In Nollan v. California Coastal Commission, the high court found that the Coastal Commission did not have such authority. The two issues – public access and height regulation – were unrelated, the court said, and a government agency can’t apply the permit process to extract an unrelated public benefit.
A similar, more recent case pitted the town of Tigard, Ore., against the owners of a plumbing supply store. The owners wanted to expand their store and pave a gravel parking lot. Town officials said the store owners had to dedicate the floodplain portion of their property to a storm-drain system and turn over another 15-foot strip as a pedestrian/bicycle pathway.
In the court case, Dolan v. City of Tigard, city attorneys argued that the requirements were directly related to the increase in runoff and traffic that would result from Dolan’s planned improvements. But the court said the exactions were out of proportion to the project’s size.
Ziegler says the city could have avoided the takings challenge altogether by putting in place a fair and comprehensive impact fee that didn’t saddle creekside landowners with the full cost of the bike path and floodplain project, which had wider benefits for the community.
Says Ziegler, “As long as your regulations can meet the Nollan/Dolan nexus, you’re safe from a takings lawsuit.”
This article appeared in the print edition of the magazine with the headline Careful planning avoids takings.
Republish our articles for free, online or in print, under a Creative Commons license.
