Court Upholds Regulating Development

Efforts at reigning in development got a boost when the US Supreme Court upheld 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."

New Jersey, my home state, is a case in point. It is a state where development is the single-greatest environmental issue, helping to ensure that our air is among the dirtiest in the nation. And more development -- whether we are talking about houses, warehouse, offices or retail space -- means more traffic, more trash, more pollution and more water use.

Development generally results in the destruction of wooded areas and wetlands, which hampers the environment's ability to deal with the effects of development. Wooded areas are our most efficient means of cleaning the air, while wetlands serve as recharge areas that filter pollutants from storm water before it flows back into streams and reservoirs.

That's why it's important that we encourage the redevelopment of already developed areas, such as the nation's decaying urban core, while checking suburban sprawl with tighter zoning rules and improved public transportation.

Federal and state money needs to be available for redevelopment projects for our cities to attract businesses and upgrade housing and schools. There also needs to be more federal, state, county and local money available for open space and farmland preservation. The more acres preserved, the less developed.

Zoning rules should be more tightly tied to environmental constraints like the impact that new housing or businesses will have on the availability of water in the region and the impact the development will have on the water table; the amount of solid waste and sewage that will need to be disposed of; and the amount of traffic the housing and businesses would generate and the need for new roads.

And environmental rules should be rewritten to make it more difficult for developers to fill wetlands or cut down wooded areas. More money should be allotted by the state for inspection and enforcement when filling is allowed.

In New Jersey, regulations allow builders to fill wetlands provided they create 2 acres of new wetlands for every acre they fill. While this would seem like a beneficial approach, the state Department of Environmental Protection recently released a study showing the rules are not working. According to the study, for each acre of wetlands filled only three-quarters of an acre was created to replace it. That meant that, rather than a net gain of 1 acre, the state was experiencing a net loss -- with most of the loss being forested wetlands, which are considered the most efficient aquifer recharge areas. In addition, less than half of the newly created wetlands met state standards for replacement.

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 a poet and managing editor of The South Brunswick Post and The Cranbury Press. Email

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