On Space for Legislative Mobility

The US Supreme Court has ruled that building permit conditions or exactions that would include some form of public access requirement must be related in degree and in kind to any impact likely to result from the permit approval.

The first example of this circumstance can be illustrated through the case of Pennsylvania Coal Co. v. Mahon 1922. This case exemplifies the final clause of the Fifth Amendment, notably, “nor shall private property be taken for public use without just compensation.” In the case of Mahon, the most provocative point of the case was that although regulation is needed to a certain extent, if the regulation goes too far it can be considered a taking. This example portrays the requirements of public access in its degree of eminent domain. Degree refers to the extent to which two constituents of a legal conflict may find that the alleged crime of taking through regulation, can be defined in its seriousness. Regarding the 1922 Supreme Court decision on Mahon, the degree of this example is related to the magnitude with which Mahon alleged the Pennsylvania Coal Co had infringed upon his personal safety and wellbeing. He felt he should be compensated against the possibility of collapse that might be threatened because of coal mining that was occurring beneath his property. This was mainly because of temporal change that resulted in less and less structurally sound ground beneath the house meaning the degree of the impact on public access had changed. The specifics of this case showed that the mineral rights beneath Mahon’s home had been previously sold and therefore the Pennsylvania Coal Co. had the legal right to mine all of the mineral coal. Pennsylvania Coal Co. had compensated the previous owner with a monetary sale of rights in order to gain the ability to legally mine all of the coal beneath the property. The permit approval which gave Pennsylvania Coal Co. the right to mine the coal, was challenged by Mahon against the degree with which the permit had regulated the taking of Mahon’s property and in maintaining his overall personal safety and welfare. Mahon argued that although the kind may have been just at the time of the permit condition when it was initially sold, the degree that had now shifted because of more and more mining had now threatened his overall welfare and safety through the potential collapse of his home. The impact related to the permit approval was, in this case, alleged to have not substantially compensated the public welfare in degree because the severity of the liability on the public welfare had shifted from its initial representation when it was compensated in kind at the initial sale of mineral rights. This case remains a question of degree and not kind in the manner with which the law is meant to protect public welfare as opposed to the standpoint that the law is situated to protect private ownership. The question that remains unresolved with regard to the degree of impact, is whether the law is meant to represent the public interest to mitigate impacts on welfare and safety, or if property rights should be upheld in protection of individual property rights for the sake of ownership. The degree of impact can be interpreted either way in both respects depending on the position one decides to take with regard to ownership, public welfare and property rights.

The case of Nollan v. California Coastal Commision, most illustrates the notion of just compensation paid in kind in the use of police power for eminent domain. This case represents a conflict of public access and private ownership. The California Coastal Commission alleged that the public access was necessary for the public welfare to enjoy the beach that the Nollan’s property abutted. The root of this case was that the public access was necessary and a building permit approval would require the Nollan’s to make adjustments to their property in order to satisfy this public interest. However, the court found that Nollan should not be required to individually satisfy this public interest without the California Coastal Commission having to offer any just compensation in kind to the Nollans for such a drastic financial and physical change to their property. In this case, the relationship of degree and kind are fixated on the notion that the state authority cannot require a change of this degree without offering just compensation in kind. Although rough proportionality was not initially defined nor the focus of this case, the idea of rough proportionality still remains significant. A permit approval for the public interest of this degree must be roughly proportional to the kind compensated to private landowners to substantially qualify a regulation of this degree. In this case, the Coastal Commision could not provide enough reasoning for why a public access to this beach could justly require the Nollan’s to bear such financial burden of renovating their property in the public interest. Subsequently, there was not enough importance to a mere public access to this beach to impose the Nollan’s to make such a drastic and individual change, without having any other adjacent property owners make any such changes themselves. This case is considered a taking because the regulation that would impact the Nollans’ far outweighs the kind that would be offered to the Nollan’s to satiate the California Coastal Commission’s desire for the promotion of a public access. The relationship between degree and kind in a building permit approval must be roughly proportional in order to authorize a taking or the implementation of exactations for the sake of public access when impacting a private owner. In this case, those requirements were not met because the public access was not a feasible reason for the Nollan’s to have to pledge serious financial and physical stake without just compensation by the California Coastal Commission.

If the government goes too far in not recognizing the degree or compensating in kind from a permit approval, this is considered a taking and just compensation is due. This means that the compensation required through due process of law must be exercised in neither an oppressive nor arbitrary manner. Subsequently, the compensation to mitigate the taking must take into account some real and substantial relationship to the public. Specifically, when a building permit, including some kind of public access, has failed to substantially meet the requirements of degree and kind, compensation must be afforded in the best interest of the public welfare, health, safety or morals in order to be justly considered relief for the property owners and the public impact. The property owner can sue and utilize the full authority of the law to receive just compensation for the impact imposed on them.

The initiation of The National Environmental Policy Act (NEPA) created a federal framework for environmental damage assessment for new and proposed federal or state developments. This policy created a new way for governments to re-examine the environmental impact of new developments on residents, fragile ecologies and habitats. This policy gave new federal authority in deciding whether developments were considered beneficial for the environment and the overall public welfare and health. Wetlands under the NEPA would be more specifically regulated on three levels of law and government. The 1972 Federal Water Pollution Control Act Amendments greatly increased the scope of federal jurisdiction over the nation's water sources including wetlands. The Clean Water Act (CWA) followed as one of these amendments with a noteworthy provision called Section 404 which is the basis of the federal wetlands permit program. Section 404 addresses the dredge and fill of waters in the United States. The Army Corps of Engineers (COE), a federal agency, had long standing oversight over dredge and fill acts through the Refuse Act of 1899. Under Section 404 the COE maintained this responsibility to oversee dredge and fill but now in a new light under the nomenclature of wetlands rather than simply open navigable waterways. With this regulatory power, the COE essentially reviews wetland permit applications for new developments to address whether these developments are suitable to the environment and do not present detrimental consequences to the public well being and ecological stability. In this review process, the COE is ordered to oblige to all Environmental Protection Agency (EPA) guidelines. The significance of this regulatory body is to define ways wetlands can be preserved or replaced in surrounding areas. The EPA retains power of the COE to reject any permit application already approved by the COE. Both state and federal wetland agencies require some form of wetland replacement or mitigation if wetlands are to be filled or dredged into. One way this is accomplished on a municipal level is the use of wetland banks, where private owners are paid to build new wetlands that are displaced by adjacent developments. Nearly all states have their own constituent wetland regulation laws that will replace the COE review process on most minor cases. Oftentimes, both state and federal review boards are required to approve a wetland permit for development and usually an EIS is required to gain a federal permit. Section 404 can be redundant and slow because of the way that it overlaps many federal, state and local reviews to gain permits.

To gain a wetland permit for development, nearly all state and local jurisdictions require a review. In addition to this, federal reviews through the COE with an EIS will also be needed to gain a federal permit for development. All of these assessments and reviews for permits can often be used to tie up unsavory or nefarious developments in court by having all three review agencies circulate their reviews in the most mundane bureaucratic methods. The issuance of a COE permit can usually be challenged through the NEPA by circumventing the approval with a claim that an environmental assessment is nonexistent or insufficient. If federal agencies such as the COE claim that a development is satisfactory in its environmental impact, state and local regulatory agencies can still file claims through the NEPA to slow or nullify new developments. For example, in the case of highway development, it might be in the best interest of the federal government to promote travel, trade and distribution by building a massive highway. However, across this development, if state or local environmental wetlands agencies feel that the fill or runoff produced by this development could seriously harm its residents or surrounding ecologies, this development could be held up in court for an indefinite amount of time thanks to the recursive nature of the NEPA. The NEPA essentially creates a boundless loop of bureaucratic processes that attempt to involve all state and local agencies and citizens in a dialogue for promoting the wellbeing and environmental sustainability of the citizens as well as the ecological habitats they reside near. It is possible that the COE could find reason, whatever it may be, that environmental impact on a large scale does not require immense mitigation or displacement of wetlands, whereas a local or state agency would know much better the individual standards of wetlands in their jurisdiction. The importance of these policies ensures an informed and carefully planned process of dialogue and environmental planning and protection before large scale infrastructure projects or private developments can take place. Although it might seem that the redundancy of these agencies across all levels of government would be cumbersome, the reality of these overlaps helps to maintain the quality of the environment within all scales of planning and development. From a federal level, the COE makes sure that there are no blaring detrimental environmental impacts, the state officials create their own framework based on specific state laws to mitigate adverse effects on wetlands and local agencies consider the more minute impacts on communities that a certain development may create. These processes are consumed by one another and at the root of them EIS and NEPA make certain, to a tee, that if there might be serious environmental issues, but the development continues, how these ecological disasters can be lowered if not completely removed. All three levels attempt not so much to remove all adverse impacts, but to bolster a conversation between all the entities involved to promote a more refined planning process that will create less and less impacts to individuals and communities over the long term.

Threshold, by Sean McGadden, acrylic on canvas