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A recent Supreme Court ruling may not directly impact the Bay Program's efforts to "move upstream" and protect small rivers and streams, but it could make local governments more reluctant to aggressively act to preserve the land along those water ways, some attorneys believe.
The recent decision, which ruled against an Oregon city's attempt to create a streamside public greenway from private property, was hailed by property rights advocates who have argued for years that environmental regulations place unfair burdens on landowners.
The decision will put a greater burden on local governments to justify their requirements when they demand that developers turn over part of their land for parks, greenways, and other uses in exchange for permits. But the greatest impact, some say, may be to make those governments more hesitant to pursue other strong environmental controls that affect private property.
"I don't think the final decision in this case would stop us from doing what we're doing, but it's going to have a chilling effect on local governments because of the costs of litigation," said C. Flippo Hicks, an attorney for the Virginia Associ ation of Counties.
Besides that, he said, there is a "distinct possibility" that opponents of tougher land use regulations would use the decision to influence state legislators. Legislation that would strengthen property rights against excess regulation has been introduced in the legislatures of all three Bay states in recent years.
But the court's ruling - in a case where the city demanded that the property owner turn over land for a public greenway and bike path - appeared to be too narrow to affect regulations affecting wetlands and endangered species, which have been the target of sharp attacks in recent years.
"The Commonwealth's wetlands protection regulations do not require the dedication of property to the state as a condition of obtaining a permit to fill wetlands," noted David Gromelski, an assistant counsel with the Pennsylvania Department of Environmental Resources.
By contrast, in the case of Dolan v. City of Tigard, the city required that developers on property adjacent to a 100-year floodplain dedicate to the municipality land for a greenway as well as a 15-foot-strip for a bicycle and pedestrian pathway . That dedication could be applied toward a city requirement that developers keep 15 percent of their property as undeveloped open space.
For the plaintiff, Florence Dolan, that meant she would turn over about 7,000 square feet, or roughly 10 percent of her property, in exchange for a permit that would allow her to double the size of her plumbing supply store to 17,600 square feet and expand the paved parking lot to accommodate 39 cars.
Dolan went to the city's Land Use Board of Appeals, but the board justified the city's request, saying the expansion would increase stormwater runoff and generate additional traffic. That decision was upheld by the Oregon Court of Appeals and the state Supreme Court.
But on a 5-4 vote, the U.S. Supreme Court ruled that the city's action was unconstitutional because it was an uncompensated taking of private property.
While the court agreed that Tigard had a legitimate interest in developing land use requirements that prevent flooding and reduce traffic congestion, it said the city went too far in its requirement that Dolan dedicate land for the public's green way system. "The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control," Chief Justice William Rehnquist wrote in his decision for the majority.
In addition, the court said that the city had failed to "reasonably relate" its requirement for the bike path dedication to the business expansion. Although the city had argued that the pathway "could offset some of the traffic" in the area, the court said that a better effort to quantify the benefit was needed.
In making its decision, the court set a new test for local governments requiring the dedication of private land for public purposes. The governments must not only show that the requirement is in the public interest, but also that there is a "rough proportionality" between the demand placed on the landowner and the impact caused by the development. "No precise mathematical calculation is required," the court said, "but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."
The court concluded, "The city's goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits as to how this may be done."
Attorneys said state environmental laws in the region - whether they be wetlands regulations, Maryland's Critical Areas law, or Virginia's Chesapeake Bay Preservation Act - would not be affected by the decision because the court's ruling addressed only an outright taking of private property for a public use.
"It's one thing to say you've got to have an easement to protect the environment," Hicks said. "It's another to ask for an easement for public access. A Virginia court would say you've got to pay for that."
But financially pressed local governments, which have increasingly turned to requirements that developers make dedications for parks or environmental protection, will find themselves with new hurdles stemming from the ruling.
In challenges to such requirements, the new "rough proportionality" requirement in effect shifts the burden of proof from landowners to the government, according to lawyers who have reviewed the case. While the court did not require "a precise mathematical calculation," it did say that a "individualized determination" was required for each case.
An analysis prepared for the Pennsylvania State Association of Township Supervisors said that means local governments will need to produce studies and expert reports in such cases. That, the analysis said, "could be an expensive process and may discourage some municipalities from imposing any dedication requirements at all."
But that may not be a major hurdle, contended Lee Epstein, director of the Chesapeake Bay Foundation's Land Management and Conservation Program, and a former assistant attorney general for Maryland. Most of the expertise that local governments wo uld need to justify their requirements would be available from state and county agencies, he said.
"While the opinion makes things more difficult for planners and for local planning by making their work more exacting, I don't know that it has a direct adverse effect on the kind of environmental protection and environment planning that has gone on - and will go on - in Maryland, Virginia, and other states in recent years," Epstein said. "The facts in that case were fairly narrow."
But, he agreed, that such decisions are "always a little bit chilling" and could provide an excuse "for those who don't want to do the right thing."
Indeed, the Pennsylvania township supervisors' analysis warned officials that "in the future, when townships are in litigation on the subject of takings, landowners will cite Dolan in support and will seek to shift to the township the burden of proving the constitutionality of township action." An official with the association added that many local governments would be reluctant to turn to outside agencies for help because of historical, and philosophical, concerns that outsiders do not always have the best interests of the local government at heart.
The exact impact, said Irving Hand, a professor of state and regional planning at Penn State University, will be determined by "further interpretations and case law that might develop." Hand was a member of the Bay Program's 2020 Panel which said in a 1988 report that the Bay states needed to adopt much stronger growth management requirements if they hoped to protect the Bay from the effects of sprawl development.
"Incrementally," Hand said, these cases "can have a significant impact."
The ruling also sends a signal to the Bay Program that it must make sure local governments have information about the impacts of land use on water quality, said Bill Matuszeski, director of EPA's Chesapeake Bay Program Office. Increasingly, the B ay Program has stressed the need to protect the waterways that feed the Chesapeake if cleanup goals are to be met.
"The major implication is that we need to be sure that whatever we do on the land is very clearly directed to the beneficial effects on the Bay and its rivers," said Matuszeski, who has a law degree from Harvard with a specialization in land law. "If we do that, I don't think any of those lawsuits are going to give us any trouble. It's making the connection to the public benefit that is always the question at issue."
