DISPATCHES by Hank Kalet: Recent decision by U.S. Supreme Court could aid in curbing development.
Development is the great bugaboo in South Brunswick, the one thing guaranteed to raise the hackles of residents.
Ask any resident and he or she will tell you South Brunswick has grown too quickly and they will recite a litany of problems caused by this growth. There is traffic. There have been water shortages. Schools are crowded and the constant need for new classroom space is pushing taxes higher. There is stress on the volunteer fire department and first aid squads, need for more roads and more employees to fix the roads. There are not enough soccer, softball or baseball fields, not enough parkland in general, and so on.
That’s why the town has over the last decade or so altered its Master Plan to reduce housing densities and changed its zoning laws.
The concept behind zoning is pretty basic, dating back to the early part of the 20th century when the Supreme Court upheld the right of towns to set limits on land-use as part of its police powers.
In recent years, however, the notion of land-use regulations and regulation in general have come under fire from property rights advocates who say that regulations amount to an illegal taking of property by the government, which is prohibited by the Fifth Amendment.
Property owners especially farmers have been critical of zoning changes that reduced the number of housing units or commercial square footage that could be built on their property.
I remember interviewing farmers in West Windsor several years ago who complained that doing so cost them real money. They said their ability to borrow money for planting and harvesting was dependent on the value of their land. By reducing the number of units that could be built, the town made the properties less attractive to developers, driving the price down. I’ve talked with farmers in South Brunswick, Cranbury and Monroe who have said the same thing.
In recent years, the U.S. Supreme Court has been sympathetic to the argument, which also is the basis of much of the North American Free Trade Agreement and the General Agreement on Tariffs and Trade that created the World Trade Organization. It has found in favor of a number of property owners, though it has stopped short of stripping government of its regulatory powers.
In April, however, the court reversed course, upholding the right of governments to issue land-use rules governing how properties are developed.
The court, by a 6-3 vote in April, ruled that the Constitution does not require that governments pay compensation to landowners when they temporarily prohibit them from building on their land. In the decision, the court rejected the claims of a group of California property owners that government freezes on development are equivalent to seizing the property, in violation of the Fifth Amendment’s guarantee of "just compensation." These kinds of claims must be considered on an individual, case-by-case basis, balancing an array of factors including the length of the moratorium and the government’s reasons for it.
"Land-use regulations are ubiquitous and most of them impact property values in some tangential way often in completely unanticipated ways," Justice John Paul Stevens wrote in the opinion for the court. "Treating them all as . . . takings would transform government regulation into a luxury few governments could afford."
In previous cases, the Supreme Court had been receptive to property owners’ claims of "regulatory takings," a position that Chief Justice William H. Rehnquist continued to support in his dissent.
But this time the court turned away from the property-rights argument, which is good news for those of us concerned about the quick pace with which housing developments seem to pop up, transforming former farm communities into bustling suburbs.
The use of zoning and building moratoriums are necessary tools to enable governments to control such development, to plan it properly, to ensure that neighboring land uses are compatible and to keep too much building from occurring.
According to the Sierra Club’s "Sprawl Report 2001," "Poorly planned development is threatening our health, our environment and our quality of life. Land-use decisions where we build offices, homes, shops, schools and other buildings influence the building of roads, transit and other transportation modes, and vice versa. It is a relationship that can lead either to safe, walkable, diverse, vibrant communities or out of control, poorly planned suburban sprawl. Unfortunately, sprawl has been winning out.
"As we sprawl farther from community and city centers, Americans are forced to drive more often and greater distances. As we sprawl more, we drive more. And as we drive more, we pollute more. Vehicle smog is one of the main pollutants increased by sprawl."
In its April decision, the court acknowledged some of this, saying land-use rules were essential tools for protecting the environment.
Now it’s up to us to use these tools correctly.
Hank Kalet is managing editor of The South Brunswick Post. He can be reached via e-mail at [email protected].