No Taking Without Paying

By Alain L. Sanders

The Fifth Amendment guarantees that private property shall not "be taken for public use, without just compensation." Exactly what those words mandate has been a subject of heated debate and much litigation for almost two centuries. In a controversial decision last week, the U.S. Supreme Court opened a major new chapter in the already bulging lawbooks dealing with confiscation. The ruling is virtually certain to render the field even more treacherously complex and to create pounding headaches for local planning authorities, environmentalists and historical preservationists across the nation.

The case that led to last week's ruling had its obscure origins in a 1978 flood that leveled the Lutherglen retreat and recreational center along the Mill Creek in California's Angeles Crest National Forest. To prevent possible future disasters, Los Angeles County banned all reconstruction in the area. The center's owner, the First English Evangelical Lutheran Church of Glendale, took exception to the safety measure. Claiming that the county's action violated the Fifth Amendment, the church sued for compensatory damages. Almost eight years after that suit was initiated, the high bench, by a 6-to-3 vote, ruled in favor of the church.

The Justices declared that when government regulations unreasonably prevent all uses of land, this amounts to confiscation. The owner is thus entitled to payment, even if the restrictions are later lifted. Writing for a majority made up of both liberal and conservative colleagues, Chief Justice William Rehnquist said, "We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." Rehnquist acknowledged that the decision would "lessen to some extent the freedom and flexibility of land-use planners," but he pointed out that it does not involve "normal delays in obtaining building permits, changes in zoning ordinances and the like."

Led by Justice John Paul Stevens, the dissenters branded the decision a "loose cannon." They charged that it would discourage the passage of important land regulations, "even perhaps in the health and safety area," and predicted that it would generate a swell of unproductive litigation. Indeed, the court returned the Glendale suit to California courts to determine whether the stringency of the county ordinance amounted to a confiscation or whether the ban was a reasonable safety regulation.

Glendale church officials proclaimed themselves "extremely happy." Elsewhere reaction was mixed, although few expected compensation lawsuits to bankrupt public treasuries. Confiscation is difficult to prove, and even where it is established, many judges remain reluctant to award significant damages. "As long as we leave the property owner with a reasonable use for the property," says Gary Netzer of the Los Angeles city attorney's office, "the courts still haven't ruled that it is a taking."

For most observers, however, the Supreme Court ruling did seem to alter dramatically the delicate balance that goes into the making of many land-use decisions. In particular, citizens trying to limit development in their localities may find themselves at a disadvantage. Says Lee Ruck, counsel to the National Association of Counties: "An outcry of community concern is now less likely to sway a member of a board of supervisors or a city-planning committee faced with a high-priced lawyer in a three-piece suit who is threatening money damages." In the view of the real estate industry, the court's ruling tilts toward accountability. Explains Gus Bauman, litigation counsel for the National Association of Home Builders: "If a policeman walks up a dark alley with his gun drawn and wrongly shoots somebody, the city can be taken to court for damages. Why not zoning commissioners?"

The impact of last week's pronouncement should soon be felt on numerous projects facing opposition. In Charlotte, N.C., for example, officials are & pushing a proposal to restore neighborhoods to their 19th century appearance. In California authorities have enacted "open space plans," which prohibit development in certain areas. On Staten Island, N.Y., residents are intensifying their fight to be paid for conversion of their land into a 1,300- acre preserve of freshwater wetlands.

Some experts are dismayed by the prospect that local zoning boards may now act with excessive caution. "I think communities must be free to plan and take chances," says Curtis Berger, a Columbia University law professor. "They ought not to be forced to plan at their peril." Worries Jim Williams of the Washington State Association of Counties: "Right now we've got a small tiger by the tail, and we don't know how big it's going to get."

With reporting by Anne Constable/Washington, with other bureaus