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PL PACKET 07211987
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PL PACKET 07211987
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Last modified
12/30/2015 3:35:10 PM
Creation date
12/30/2015 3:34:56 PM
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SP Box #
15
SP Folder Name
PL PACKETS 1987
SP Name
PL PACKET 07211987
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In -terms of analyzing the potential impact of the case on future <br /> land use planning or other regula.to.ry practices, it is important <br /> to recognize what the case does not stand 'for . The case does not <br /> stand for the proposition that all interim or permanent flood <br /> plain ordinances constitute a taking of .property requiring <br /> compens.ation, 'nor does it establish a standard that would indicate <br /> when a regulation results in a taking . To the contrary ,, the Court <br /> acknowledges that the the county might avoid- the conclusion that a <br /> compensable taking had occurred by establishing the denial of use <br /> was insulated as part of the States authority to enact safety <br /> regulations. Further , the Court stated mere fluctuations in <br /> value during the process of governmental decision making , absent <br /> extraordinary delay, are incidents of ownership and consequently, <br /> not a taking. Finally, the Court stated, "we limit our holding to <br /> the facts presented , and of course do not deal with the quite <br /> different questions that would arise in the case of normal delays <br /> in obtaining building permits, changes in zoning ordinances, <br /> variances , and the like which are not before us today. " <br /> The three dissenting justices stated that their major objection to <br /> the majority' s holding is that the decision fails to establish a <br /> workable standard for distinguishing between everyday regulatory <br /> inconveniences and those so severe that they constitute a taking . <br /> They also have trouble working with the majority ' s distinction <br /> between non-compensable "normal delays" and delays that rise to <br /> the level of a taking . The dissent suggests that the test for <br /> regulatory takings requires an inquiry into the duration of the <br /> restriction as -well as its scope and severity. The dissent simply <br /> sees the need to provide a workable standard, a 'standard that is <br /> so conspicuously absent from .the majority opinion. <br /> What Should Cities Do? <br /> Cities as always should make make findings to demonstrate that <br /> their decisions are supported by legitimate health, safety and <br /> welfare concerns . Zoning and other regulations should continue to. <br /> be reviewed to assure that they do not deny landowners all <br /> reasonable use of their property. Caution should be exercised to -. <br /> be sure that regulations are important enough to justify the cost <br /> of defending against potential claims likely to be generated by <br /> the decision. On those rare occasions when a city adopts <br /> regulations prohibiting all construction, the city should make <br /> sure that such regulations are founded on sound public safety <br /> concerns . Finally, - the decision seems to say that cities are <br /> protected from allegations based on normal delays in the planning <br /> process . In this regard , care ,should be taken to make sure that <br /> regulatory and planning activities' do not become dilatory. <br /> i <br />
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