Property rights concerns already built in to city’s land use policies

“My initial thought in reading the majority opinion is that this really won’t affect Philadelphia to any great extent,” said Scenic Philadelphia attorney Stephanie Kindt, reacting to the Supreme Court’s recent decision expanding the legal applicability of property owners’ claims of government “takings.”

In the decision, five justices ruled that a government agency that denied a permit to a landowner who wanted to build on some three acres of wetlands in Florida but wouldn’t agree to pay for environmental mitigation offsite had unjustly burdened the developer’s 5th Amendment right not to have his property taken without compensation. The decision–which said that municipal fees must have a “nexus and proportionality” with the impact of the proposed development, even when there is no direct “taking” of property–was the subject of a PlanPhilly story last week.

Kindt continued, via email, “Our fees are so small that the application of a nexus/proportionality test would pass with flying colors.  Even if we doubled all our fees and fines they still would not come close to covering the cost of administration and [oversight] functions of L&I, which would be a logical connection to requiring applicants to pay a fees/fines.”

Other attorneys agreed the decision poses no real legal threat to Philadelphia’s land use policies. And that may be because those policies and our city’s planning agencies already go out of their way to avoid infringing on property rights, sometimes at the expense of other land use interests.

The case of outdoor advertising, a direct concern of Scenic Philadelphia, is a good example. The city has tried, over a period of decades, to establish more robust regulations and fees on billboards. The litigious billboard companies have effectively nullified most of those efforts, sometimes through free speech claims, and in other cases using 5th Amendment arguments.

During the five years the city spent rewriting its zoning code, developers and their attorneys offered some of the most consistent feedback on proposed policies and weren’t shy of telling policymakers what rules wouldn’t work for them. Development Workshop, a loose consortium of property owners, also spent two years in the trenches working to keep what they saw as overzealous regulations out of the new Central Delaware zoning overlay.

In short, Philadelphia and the region are already a step ahead of the federal expansion of property rights.

“Generally speaking,” said Lynda Rebarchak, a spokeswoman for the state Department of Environmental Protection, “the Department designed its regulations to meet constitutional muster and routinely ensures that its permitting actions do not affect unconstitutional takings.”

Rebarchak said the Department reviewed the Supreme Court case, and found that it wouldn’t affect any of its policies or regulations. She said the DEP’s wetland permitting policy sticks to a mitigation-to-impact ratio of around 1-to-1 or 2-to-1. The Florida agency involved in the Supreme Court decision, she said, was seeking a 13-to-1 wetland replacement.

Matt Ruben, chair of the Central Delaware Advocacy Group, which led the charge for the riverfront overlay, said that with respect to economic issues, the five-justice majority on the supreme court is living in a “cartoon version of reality.” He said the court majority wants a society that preserves the advances of industrialism, but that it’s willing to “roll back every kind of reasonable government regulation that’s in the public interest.”

“The five-person majority doesn’t seem to believe in the public interest the way that most people do,” Ruben said.

Even so, Ruben doesn’t think the decision will impact Philadelphia or the new Central Delaware overlay. The system by which the waterfront overlay attempts to get public amenities from developers is one of bonuses, rather than requirements. The building height limit on the Delaware is capped at 100 feet, but developers can go up more than twice that high by providing public benefits like waterfront access. Ruben said the system is a “reasonable, effective policy tool to safeguard the public interest,” and believes it will be a model for other cities.

“[The bonus system] is a menu,” Ruben said. “And not only do they have a choice of what to order, they don’t have to order anything.”

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