Loudoun Letters to the Editor

Zoning for All, Not a Few

In the battle over western Loudoun zoning, growth advocates such as Jack Shockey [president of Citizens for Property Rights] and cronies such as Supervisor Stephen J. Snow (R-Dulles) waive the banner of constitutional rights to support their position. The U.S. Supreme Court -- the final arbiter of the Constitution -- would not agree.

On June 23, in Kelo v. City of New London , the court ruled that local government may take (i.e., condemn) private property for purposes of a private (not just public) comprehensive land-use program aimed at promoting common good. Property rights advocates screamed, and even some moderates (me included) squirmed a bit.

But agree or not, Kelo and what it stands for is the law. For all the chatter about private "property rights" by developer-backed Supervisors like D.M. "Mick" Staton Jr. (R-Sugarland Run) and Snow (who, by the way, have never been to law school), Kelo has reaffirmed that such rights must bow to -- or at least balance -- the comprehensive public interest.

Almost 30 years ago, New York City enacted a landmark preservation ordinance that developers challenged because it limited their right to develop their property. In Penn Central Transportation Co. v. New York City , the U.S. Supreme Court found that the city could, as part of an overall program to preserve historic property, limit development of individual properties without effecting a "taking" that would require payment of "just compensation" to the restricted property owners.

The court observed that "takings" generally occur when the government physically invades property, "not when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good."

Both Penn Central and Kelo harkened back to the infamous words of Justice Oliver Wendell Holmes in Pennsylvania Coal Co. v. Mahon in 1922: Local property controls should produce "an average reciprocity of advantage." That is, we all benefit and we all suffer, but on the whole, zoning should work for all (not just a few) of us.

I supported the Clem/Burton plan over the Tulloch/Staton plan, concerning how the supervisors might zone a large swath of Loudoun County, as did a 5 to 4 majority (with Snow loudly in the minority) at Wednesday's meeting. Clem/Burton projects 13,936 potential new homes in the so-called rural policy area, while Tulloch/Staton would allow at least 20,247 -- a 45 percent difference. And I see nothing in that latter outcome that creates an "average reciprocity of advantage" for our community.

Will any disinterested citizen honestly say, "Yeah, I want more crowding"? The fact is, most of us suffer snarled traffic, rising taxes, gerrymandered school boundaries and other uncertainties in an already challenging world. We just want a reasonable life.

The Clem/Burton compromise comes far closer to creating "an average reciprocity of advantage" for our whole community than the Tulloch/Staton proposal, and everybody (even Tulloch and Staton, and certainly Snow) knows it.

Kevin L. Passarello

Middleburg