Zoning Laws And Property Rights

This morning’s Washington Post carries a story that stands as yet another example of the ways that zoning laws and other land-use regulations interfere with our property rights.

Their seven-bedroom, $2.2 million dream home is in spotless, move-in condition. It’s an elegant hideaway on 1.6 acres in Oakton, set back from a winding, tree-lined road — a perfect place for their four youngest children to grow up.

But for 36 days, Karen and Joe Bartling and their children have been homeless. Along with their college-age son and the family’s Labrador retriever, they have been holed up in a tiny efficiency apartment in Chantilly with a pullout couch, all of their belongings in a storage locker.

The Bartlings can’t move in until their builder plants 20 to 80 trees on their property that Fairfax County says are required in part because the builder cut down too many mature trees during construction.

The thing of it is, the Bartlings don’t even want the trees:

[T]o the Bartlings, the trees are nothing but booby traps wrapped in wire and wooden stakes: Four of their five children — who were adopted from Korea, China and India — are blind. For them, trees are bumps and scrapes waiting to happen.

“I don’t want my kids having black eyes running into trees all day,” said Karen Bartling, 48. “These kids have enough obstacles in their lives. The last thing we want is trees in our yard.”

Unfortunately, they have little choice in the matter. Fairfax County is requiring the Bartlett’s builder, NV Homes to plant the trees after another neighbor complained when they removed trees during site clearing and construction.

Fairfax requires builders in residential developments like the Bartlings’ — four homes on 10 acres called the Estates at Oakton Hollow — to preserve trees on 20 percent of the property. The trees can be old or new, to replace those that were knocked down for construction. NV Homes planned to put a “significant portion” of the trees on the Bartlings’ lot, county spokeswoman Merni Fitzgerald said. This was partly because some of the other lots lie in a septic drain field that needs to be cleared, said Hugh Whitehead, a county urban forester.

The builder also recently cleared some trees on another lot it may develop in the subdivision, county officials said, prompting a new round of planning to replace them. In both cases, dozens of new trees are needed to make up for the old ones, Whitehead sai

The Bartlings said they planned to build a swimming pool and put a swing set, trampoline and barbecue in the back yard, leaving precious little room for a forest. The trees would be scattered around the property, making it impossible to fence them off.

When the builder told them the trees were going to be planted, and the Bartling’s objected, they were told that they didn’t have a choice in the matter. As a result, settlement has been delayed, they are living in a hotel, and the interest-rate lock on their mortgage is about to expire.

Some might say that the Bartlings should have looked up the zoning laws of their new property and asked if their home to be was compliant before they started planning. Perhaps if they had known they would have looked for their dream property elsewhere, such as these san clemente homes for sale with ocean views as there’s plenty of room for swimming pools and barbeques there, some already come built into the property. However, that depends on when the builder told them trees needed to be planted, or even that the trees had been cut down.

Certainly, some of the blame here lies with the builder. They cut down more trees than they should have under County laws. They may not even have informed the family they were planning to do so when they first looked at the property.

But, what about the Bartling’s right to have the house and the property they contracted for? Not only must they accept the trees if they go to settlement, but they are prevented by County law from cutting down any of the trees. Even though they already had plans for the space that means nothing because of factors that have been (as far as we know) out of their control.

Unfortunately, because Fairfax County now presumes to tell them they cant do with their property what they planned to do, they seem to have no choice in the matter.

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