The delicate art of balance - ruminations on change and expectancy in local land use.

• Author: Brookshire, James E.
• Position: Defining Takings: Private Property and the Future of Government Regulation

1. INTRODUCTION

   When considering the new, it is always important to remember the old. If change is the constant, then wise reactions to change rest on a firm grasp of time and place--a firm hold on perspective. No question exists that much strident debate continues today regarding the Constitution's provision for just compensation and the concept of regulatory takings. Many people see the rise of this debate as being tied to change. Almost all see the Fifth Amendment's Just Compensation Clause as a bulwark in favor of the individual against the admittedly lawful prerogatives of the majority to govern.(1) Some people see the constitutional obligation embodied in the Fifth Amendment as a condition subsequent on the exercise of compensable sovereign power, i.e., an exercise of power creating compensable interference remains valid, so long as the constitutional due Oust compensation) is available when required. A few people go even further, seeing the Fifth Amendment's protection as a throttle on the power of the majority to act in the first instance. On the opposite extreme, certain individuals view the just compensation provision as a somewhat anachronistic constitutional redundancy, a rough equivalent of the Due Process Clause.

   Although the takings litigator has few luxuries, it is at least true that resolving a particular takings case does not require resolving the broader issues. With the benefit of this observer status, litigators can see in this policy dialogue the great respect that all of the participants have for our system's broader premise of informed debate. It is not the litigator's function to suggest a more or less desirable view. Others are better informed to do that. This piece will not focus on that policy dialogue, nor will it focus on the takings jurisprudence itself. This author recognizes that other contributors to this symposium are in a better position to provide those insights.

   Instead, this Article is a personal reflection on the experiences of local land-use systems. It will view those systems as they have practiced the delicate art of balancing change and expectancy in day-to-day land-use decisions for now over 100 years. The local land-use tools utilized to accommodate change and expectancy include a range of vital and diverse approaches. Those tools reveal a tradition of pragmatic day-to-day dialogue where those individuals who propose use and those who plan use do something extremely simple: they talk. They pursue an accommodation between land-use goals and individual plans. Along the way, this Article highlights cases that both recognize the myriad existing constitutional expectancies and fashion frameworks for measuring the creation of new expectancies.

   This Article begins by looking at today's growth challenges, using the Washington, D.C. metropolis as a reference point. From there, the Article reaches backward to trace some of the Supreme Court's major zoning rulings. Here, the Article highlights a few of the cases that cross a broad reach of constitutional provisions and that provide the corner pieces for the land-use puzzle by delineating the broad borders of permissible zoning. Then, the Article turns to the wellspring and residuum of zoning authority: the state and local levels. With these points of reference, the Article moves through enabling statutes, ordinances, and comprehensive plans. As it proceeds, the Article shows that the accommodation of change and expectancy occurs routinely and that it does so with increasing precision as the decisionmaking body becomes more localized. Finally, arriving at the local level, the Article describes still other tools, ranging from nonconforming uses to variances, which assure balance between community land-use goals and expectancy. Through this approach, the Article will have travelled a terrain marked by day-to-day challenges and pragmatic innovation; one that features a tradition of bridging land-use goals and individual expectancy.

   This pragmatic environment owes its existence, at least in part, to the Supreme Court's remarkable judicial sensitivity when resolving fundamental land-use issues implicating a broad array of constitutional provisions. With the wider perspective of constitutional land-use litigation, one gains an even broader grasp of the Court's land-use remedies. One sees a Court that is active in assuring constitutional fit in land-use programs. The Court's decisions indicate that it invokes a strong sense of constitutional place and time, an essential element when gauging the perception of change or the need for change, even in land use.

   Each of these lessons provides comfort. In fact, some portion of the message of the Supreme Court's recent cases may be simply to remind the community of the importance of being sensitive to the long-standing tradition of land-use balance.

2. THE CHALLENGE OF LOCAL GROWTH--A "REAL TIME" SAMPLER

   The days of local courts and land-use planners are filled with activities such as maintaining values, providing ever growing demands for service, stabilizing the economic base, maximizing a diminishing resource base, encouraging new investment, restoring the environment, and improving the quality of life. The halls of legislatures and town councils reverberate daily with the competing demands confronting those individuals bold enough to attempt to represent the people in these times. People who advance the cause of land use as well as people who regulate the use bring goodwill, hard work, and creativity to countless negotiations that attempt to accommodate reasonable expectancies of use with legitimate public goals. Over the years, the government has responded to the struggle between these themes by developing local government land-use regulatory structures.(2)

   Occasionally, the debate crystallizes enough to make its way to the Supreme Court and to trigger constitutional dialogue.(3) In earlier times and settings, society managed to find ways to balance the debate. The Court's more recent decisions on local land-use planning concerns demonstrate that society continues to balance competing interests.(4) Given the nature of land-use planning, the constitutional search for balance has been, is, and will be a constant effort.

   More frequently, the balance is fashioned in a pragmatic day-to-day world without triggering constitutional tension or court involvement. Balance is fashioned in local legislatures, town councils, zoning boards, land-use planning offices, and local courts in everyday America. Prime among today's planning considerations are transportation, accommodation of growth within existing communities, maintenance of community values, and growth in area revenue bases.(5) The suburbs around the Washington metropolitan area offer an excellent microcosm for studying today's land use and community growth phenomena.

   In Charles County, Maryland, comprehensive land-use planners attempt to preserve agricultural ambiance in a way that fosters growth around existing communities.(6) To balance these goals, Charles County has resorted to transferable development rights (TDRs), also used in Calvert and Montgomery counties in Maryland.(7) Development rights for the agricultural lands are transferred, for value, to lands in areas where county managers want to encourage growth, thus channelling the expansion into certain areas.(8) Growth still raises challenges. Residents of northwestern Charles County recently debated a proposal to convert 2250 acres of forest into a mixed-use development, including retail and commercial space, a golf course, and residential units projected to attract up to 12,000 occupants.(9) Opponents of the growth raised concerns over the impact on local historic sites, on traffic accessibility, and on the ecosystem.(10) Advocates accepted that change and growth would, in any event, occur and stressed the value of utilizing planned growth.(11)

   Howard County, Maryland, hosts the planned community of Columbia where county executives continue to struggle with growth along Interstate 270.(12) In that county, after a measure passed in the polls requiring major zoning questions to be submitted to a referendum and a county executive veto, the county's five council members nonetheless voted to exempt "floating zones."(13) These zones included special districts for the town of Columbia, Maryland and rural businesses.((14) In an even more rural area of Maryland, Frederick County, local zoning preserves agricultural lands by providing that no more than three lots may be subdivided from any size farm.(15) At the other end of the spectrum, Calvert County, which utilizes TDRs and has implemented a new acquisition program, is currently buying more land than it is developing.(16)

   The struggle for dominion is not always one between the government and the individual. In some instances, governments contend with each other. Poolesville, a city in Montgomery County, Maryland, found itself astride the question of annexing 1177 acres in connection with plans to locate a private educational center in the town.(17) Advocates for the center and for annexation stressed that the center would spark water supply improvements and the upgrading of public education facilities.(18) County officials, however, preferred to maintain the Poolesville acreage as open space.(19) Poolesville officials responded to the county's efforts by challenging the validity of the county's open space concern, pointing to the county's location of incinerators, police firing ranges, and public golf courses near the town.(20)

   Inside the infamous "Beltway," already developed communities confront change and demands for further growth. Counties emphasize redevelopment by encouraging growth near transportation centers and existing growth hubs.(21) One redevelopment technique, "infill," the development concept of building on lots in long-existing neighborhoods,(22) brings its own challenges. Today's consumer demands...