EDITORIAL: Court ruling is a blow to land-use collaboration

July 1, 2013 

The U.S. Supreme Court made a decision last week that almost certainly will discourage efforts by Fresno area officials to protect our lands from the negative effects of sprawling development.

Say, for example, a developer wants to build a shopping center in the foothills. He needs a permit. The local government agency tours the site and tries to negotiate a deal that would permit him to build, while offsetting the impacts to the area.

These kinds of land use negotiations go on every day in California and across the country. State and local governments widely condition permit approvals on some kind of "mitigation" -- changing the design, enhancing some other piece of land or paying a mitigation fee.

But, in a 5-4 decision Tuesday, the court made such negotiations much less likely and made it easier for landowners to challenge these kinds of conditions and fees.

Organizations such as the Sacramento-based Pacific Legal Foundation, which represented a Florida landowner in this latest case, now will be able to drum up a lot more business.

It also means, as California Attorney General Kamala Harris argued in an amicus brief for 19 states, that local governments to avoid lawsuits "would be encouraged to choose one of two extremes: denying development, or approving it without addressing its impacts."

Less likely now is the middle ground of negotiation: a back-and-forth in which the landowner and local government suggest ways of mitigating impacts.

Further, instead of appealing permit conditions to local boards, landowners can now go directly to court, which California argued is essentially "converting the federal courts into land use boards of appeal."

In the case in question, Florida law prevents landowners from filling or draining wetlands without permits. The local water district provided the landowner with a long (and open-ended) list of on-site and off-site options that would satisfy state guidelines and allow his project to go forward.

He could reduce the scale of the development, modify the design to lessen the impact on wetlands, do off-site mitigation to restore other wetlands in the basin, or suggest some other mitigation to compensate for the loss of wetlands his project would cause.

He refused, so the permit was denied and he filed a lawsuit.

The Supreme Court now makes that the wave of the future, instead of local resolution of land use disputes.

Doubtless the court's ruling will have a chilling effect on local government negotiations with developers over permit conditions that promote responsible development.

The dilemma now for risk-averse local governments that don't want developer lawsuits is to deny permit applications outright or to approve permits without negotiating options to offset harms that a development might cause.

That's a big loss for the environment and for collaborative decision-making on the local level.

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