Laserfiche WebLink
is , to maintain. a balanced community of land uses---to keep the <br /> pig out of the parlor---and to do this basically through <br /> districting , and not to deny all use of the land to any property <br /> owner . <br /> 3 . Some lawyers are now speculating as to whether the Court <br /> really meant all use of land denied . They ask , did it mean almost-- <br /> all , or most , or some ; looking back, no doubt , to Oliver Wendell <br /> Holmes ' Court opinion in 1922 in which he said "the general rule <br /> at least is , that while property may be regulated to. a certain <br /> extent , if regulation goes too far it will be recognized as a <br /> taking . " What is too far? On the face of it this Court acted on <br /> a case where it explicitly stated its acceptance that all use of <br /> the property had been denied the church. <br /> The most problematic part of the court ' s opinion for land <br /> planners is its holding that if a municipal regulatory action is <br /> later held by a court to be a "taking" , the municipality is <br /> required to pay some compensation to the landowner for the time <br /> when he/she was denied all use of the land , ie . , the period <br /> between the time the ordinance was placed in effect and the <br /> time of a court ' s decision that it constituted a "taking" and/or <br /> was repealed by the municipality . Certainly no professional <br /> planner has the remotest desire to bring such unpredictable costs <br /> to their community government , and it is doubtful that they will <br /> as long as sound planning precedes ordinance enactment . <br /> Three of the more restrictive land use actions of a municipality , <br /> and therefore three areas in which to be more watchful and <br /> cautious , are the adoption of moratoriums , environmental <br /> protection regulations and historic preservation regulations . <br /> But , even here , if the ordinance is constructed carefully and <br /> appropriately recognizes existing uses it will be a sound land <br /> use management tool . If by chance a municipality does have an <br /> ordinance which denies all use of the land to a property owner , <br /> it is suggested that it be examined closely and reviewed with <br /> the city attorney to consider possible amendments . <br /> In the final analysis , it is too early and unclear to take action <br /> of significant substance based on this supreme court decision . It <br /> is suggested , however , that in the preparation of any .land use <br /> regulatory ordinances in the future , steps be taken to assure <br /> that the regulations are based on good land use data , <br /> professional land use analyses and a sound land use plan. <br /> 8 <br />