It’s hard to plan for open space preservation
By:Michele S. Byers
Planning isn’t easy. Just ask anyone on your local planning board, and they’ll tell you how hard it is to plan for open-space preservation and growth all in a highly complex legal environment.
Fortunately, in a recent Lake Tahoe case, the U.S. Supreme Court gave local governments more flexibility in using zoning to protect land and natural resources.
The case began when a property rights organization sued the Tahoe Regional Planning Authority (TRPA) on behalf of more than 400 landowners, charging that land-use restrictions imposed by the TRPA amounting to a 32-month moratorium on development within the Lake Tahoe basin were an unconstitutional "taking" of private property by the government.
The landowners had bought undeveloped lots and expected to build houses next to Lake Tahoe. However, the TRPA a regional planning agency created by California and Nevada to oversee development and natural resource protection in and around the scenic Lake Tahoe on their shared border instituted a temporary moratorium on new development. The moratorium was established to give the TRPA time to study and plan for future growth and the protection of water. A group of landowners, backed by the Tahoe Sierra Preservation Council, representing business and development interests, charged that these actions deprived them of "all economically beneficial or productive use" of their property during the moratorium period.
The American Revolution was inspired by English citizens fed up with the king’s authoritative control over their activities, their person and their property. It therefore isn’t surprising that the "takings" issue has played such a rich and important role in our nation’s legal history. In addition to the more familiar portions of our Constitution’s Fifth Amendment, private property is protected from being "taken for public use without just compensation." Without a limit on government’s ability to "take" your property without paying for it, Uncle Sam (or your town or county, for that matter) could, arguably, "take" your house if it blocked a highway, or your car or your baseball card collection if it so chose without giving you anything to compensate you for your loss.
Today, more than 200 years after the last British regiment was forcibly bivouacked in Farmer Ryan’s house, takings cases are still closely watched and hotly contested. In recent years, the Supreme Court has tended to come down on the side of private property rights. The 6-3 decision in the Tahoe case, however, reaffirms the legitimacy of using zoning to protect the public good and perhaps most important for us here in New Jersey to protect the quality of our water resources.
In the majority opinion, Justice John Paul Stevens wrote that "(a) rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision-making."
Lest you think this case is important only for folks with land around Lake Tahoe, it’s important to note that New Jersey has instituted similar moratoriums such as New Jersey’s Watershed Moratorium Protection Act, a temporary measure instituted by the state Legislature in 1989 placing a temporary moratorium on selling or building on sensitive watershed lands. Gov. Byrne also placed a temporary moratorium on building in New Jersey’s sensitive Pinelands region to allow time to adopt a regional land-use plan.
The Supreme Court’s decision provides governments with the opportunity and flexibility to plan as they work to protect limited natural resources for the public good.
I hope you’ll contact me at 1-888-LAND-SAVE or [email protected], or visit NJCF’s Web site at www.njconservation.org, for more information.
Michele S. Byers is executive director of the New Jersey Conservation Foundation.