Zoning Ruling May Invite Property Rights Battle

The Fifth Amendment conjures up images of 1950s mobsters, and, more recently, former White House officials, telling congressional committees that they are refusing to answer questions on grounds of their constitutional protection against self-incrimination.

But, thanks to Supreme Court rulings in two California cases in the court term that ended last month, “pleading the Fifth” may take on a whole new significance for property owners and their lawyers.

That same amendment, in a final clause, forbids the government to take private property for public use without just compensation, and the Rehnquist court has used that provision to give a bigger boost to personal property rights than any court since the 1930s.

Strict Zoning Measures

The court ruled that a government may have to pay compensation to a land owner if a strict zoning measure goes too far in preventing him from using his property. Previously, compensation generally had been required only when the government actually condemned the land.

The court ruled also that a government may not force a land owner to make concessions on his plans for his property unless it can prove that his development imposes a burden on the public.

The rulings have landed like a bombshell in many communities where restrictions on what may be built and where have been increasingly tightened to control sprawling development and to protect the quality of life.

Now, local governments, as well as property owners and developers, find themselves probing the potentially profound, but still vague, outlines of the new ground rules to determine what zoning is still justified and what is not.

According to lawyers for developers and government, the two decisions may call an end to aggressive regulation of private property and mark the beginning of a new era of Supreme Court battles over property rights.

Counties in Dilemma

“This leaves the counties in a terrible dilemma,” said California Assistant Atty. Gen. Gregory Taylor. “If they stop someone from building in a dangerous or unstable area like Malibu, they can be hit with a judgment forcing them to pay for the land. But, if they permit them to go ahead and something happens later, they can be hit for a liability judgment for any losses.”

Taylor said that “this whole area of the law is up for grabs. I think you will see a flood a lawsuits here and a lot of cases going to the Supreme Court, too.”

For years, conservative legal academics have contended that strict government regulation of land becomes at some point the equivalent of condemning it.

In its new rulings, the court has accepted this notion but has not made clear when the government crosses the line between reasonable regulation and unconstitutional restriction.

Church Campsite Case

The two cases in point pose many questions--questions that could shift to property owners significant ground that government long has held.

In one case, the Supreme Court said that Los Angeles County may have crossed the line when it denied a Glendale church “all use” of a campsite in the Angeles National Forest. Lawyers for the county had thought they had an ironclad defense here. The camp had been wiped out in a disastrous flood in 1979, and the county said it had the discretion to bar development on what it considered a flood plain.

But without finally deciding the individual case, the Supreme Court said the government prohibition was so strict that it violated the Fifth Amendment and that the county could be forced to pay compensation.

Does this mean that a county regulation that forbids a land owner to build on a dangerous hillside or near a toxic waste dump could result in a court order requiring the county to pay for the land?

‘Safety’ Issue

Attorneys said they were uncertain of how to read the court’s ruling. Chief Justice William H. Rehnquist, writing for the court in the 5-4 decision, said only that the county could stress the “safety” issue as a factor in the new trial ordered for the case in Los Angeles.

In the second case, involving a Ventura beach, the justices said the California Coastal Commission went too far when it required homeowners to let the public use their beach in exchange for a permit to rebuild their home.

Justice Antonin Scalia, in the opinion, said a condition attached to a building permit must be reasonably related to the impact of the development. Otherwise, it constituted unlawful taking of the property.

‘Reasonably Related’

Attorneys were left to wonder what is “reasonably related?” May a home builder be required to help pay for new schools in the area when his homes bring in more children? May the developer of a high-rise office building be required to create “open space” in exchange for the sunlight the building blocked out? May the city require a developer to add a public day care center for employees in his new office buildings? Those requirements are already in force in a number of communities.

With such crucial questions unanswered, attorneys say they foresee the so-called “takings” issue becoming a major new battleground for the Supreme Court.

It is not unusual for the court to set forth a general principle and then define it through a series of decisions. Each year, for example, the justices hear several cases that try to draw a clear line between what is a reasonable and unreasonable “search and seizure” by police officers.

Other lawyers saw a parallel with the court’s first rulings on obscenity. Justice Potter Stewart once wrote in a obscenity case that “I know it when I see it.”

“Nobody could define obscenity at first,” said Douglas Elswell, senior deputy counsel for Los Angeles County, “but, after enough cases, you can see what you can and cannot do. I think we will go through the same long and painful process on the ‘takings’ question.”

Nomination of Bork

The recent nomination of Judge Robert H. Bork to the Supreme Court could have an impact on the issue.

His predecessor, retiring Justice Lewis F. Powell Jr., sided with the conservative court majority in both land use cases but generally showed little interest in property rights cases. In earlier writings, Bork has called himself a devotee of “free market” economics. If confirmed by the Senate, Bork would likely side with property owners in Fifth Amendment cases, many lawyers believe.

Michael Berger, the attorney who represented the Glendale church, said he expects that the Supreme Court will soon try to give a better definition of a “regulatory taking.”

He said he is particularly curious about how it will regard “a down-zoning that has a severe impact on the owner but leaves him some use of his property. Is that a taking?” Berger asked.

In 1984, the California Supreme Court upheld a down-zoning by the Davis City Council, in which property that previously was available for development was restricted to agricultural use only. Berger and other attorneys for developers say they now believe they could successfully fight such an action.

“Before June 9th (when the court handed down its decision in the church case), I could not bring a damage suit in state court based on a regulatory taking, even if it destroyed all the value of the property,” said Kenneth B. Bley, a Los Angeles lawyer who represented developers. That has now changed.

Although both attorneys Berger and Bley represent developers, they differ on whether land use regulations based on safety concerns are immune from attack.

“I don’t see the distinction. Either way, the owner can be denied all use of his property, and I think the court has said the government must pay compensation,” said Berger, who plans to make that argument in behalf of the Glendale church in the new Los Angeles trial.

But Bley said that the Supreme Court, from the late 19th Century, has allowed the government to set land use regulations based on health or safety reasons, and he doubts that it will reverse that.