(Since I mislabelled the Monday Development 4/4 - I have labelled this one 4/3, so that you not think they are the same in your messages list).

Daily Development for Tuesday, April 4, 1995

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

For our friend in Michigan, I thought I'd report on the most recent regulatory takings cases that I have found significant. Also, they make a nice "pairing."

Specifically with regard to takings and wetlands, check out the pro-government decision in Zerbetz v. Municipality of Anchorage, 856 P2d 777 (Alaska 1993) (Drop from value of $1.5 million to $200,000 due to wetlands designation not a taking). But the hottest wetlands takings case is the carefully watched Loveladies Harbor case, 28 F.3d 1171 (Fed. Cir. 1994) (100% loss of value due to wetlands declaration not justified under Lucas "nuisance" rationale - a taking occurred.) Getting to the point of a stipulated 100% loss in value, of course, is some trick.

Here are the other two takings cases. What do you think?

CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS; EXACTIONS. City's requirement that the landowner dedicate extensive portions of its property for widening of city streets amounts to a taking in the absence of any evidence of a relationship between the impact of the landowner's proposed development and the condition imposed by the city. Schultz v. City of Grants Pass, 884 P.2d 569 (Or. App. 1994). The court found that the city's restriction was not a legislative land use entitled to a presumption of validity, but was an exaction subject to heightened scrutiny where the restriction was not simply a limitation on the use to which the owner could put his property, but rather a requirement that the owner deed portions of the property to the local government. Speculation as to future construction on the property was not sufficient evidence of the impact of proposed development. Comment: It's likely we'll see more of these in the wake of Dolan v. City of Tigard, 114 S.Ct. 2309 (1994).

CONSTITUTIONAL LAW; TAKINGS; REGULATORY TAKINGS: Adoption of designated corridors for future roadways, where no development can occur that is inconsistent with roadway, is proper subject of county police power, and is not a per se taking of property. Palm Beach County v. Wright, 641 So.2d 50 (Fla. 1994). The court acknowledged that there could be takings in the case of individual property owners, but pointed out that, with respect to some property owners, the restriction on development would be more analagous to a set-back requirement, and would not be compensable. Further, in some cases the public planning agency may permit such interim uses of the property as would not destroy its economic viability for the landowner, and thus, again, no taking would occur. Therefore the establishment of a limited development corridor is not a per se taking of all property within the corridor.

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