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<br />specific requirement for minimum 1z-foot-wide
<br />islands for trees in parking lots. The Critical
<br />Areas Ordinance addresses trees in relation to
<br />protection of wellhead protection zones, habi-
<br />tats for important species, streams and riparian
<br />areas, wetlands, small lakes, and landslide haz.
<br />ard areas. '
<br />
<br />CONCLUSION
<br />The public demand for greener communities is
<br />unquestionably growing, albeit faster in some
<br />places and parts of the country than in others.
<br />The APA study found noteworthy efforts in all
<br />regions of the country. While every case study
<br />has lessons to offer,it is also incumbent 'upon
<br />every community to identify its own specific
<br />needs and craft its own way fOlWard to meet
<br />those needs.'No one size fits all; the geo.
<br />graphic, climatic, and political factors involved
<br />in success vary widely. Examining what works
<br />under what conditions is critical, as is ,a com-
<br />mitment to provide the resources necessary
<br />for effective code enforcement and program
<br />implementation.
<br />
<br />e ~,~~~uR~EIEFS
<br />
<br />iii TAKINGS RULING STAND
<br />
<br />By Lara Lucero, AICP
<br />In Aprilzo08, the Ohio Supreme Court decided
<br />not to accept review of a decision from the
<br />intermediate court that found a zoning classifi.
<br />cation of "P" for parks and open space was an
<br />unconstitutional taking. The decision has
<br />important lessons for planners and communi-
<br />ties interested in preserving.open space and
<br />recreational land uses.
<br />
<br />lose money'in the 1990s, he decided to sell
<br />to a residential developer, but the developer
<br />, was unsuccessful in getting the property
<br />rezoned. The owner filed a declaratory judg-
<br />ment action and argued the "Park" designa-
<br />tion was unconstitutional because it
<br />destroyed the market value of the property
<br />and effected a taking.
<br />Following an 11-day trial and more than
<br />Z,500 pages of transcript, the trial court con-
<br />cluded the "Park" designation was arbitrary
<br />and unreasonable and denied ''the economi.'
<br />cally viable or reasonable use" of the property.
<br />The court of appeals affirmed. The central
<br />inquiry, the court said, is whether the zoning
<br />classification denied the owner all economi-
<br />cally viable use of his land.
<br />The village asserted several govern-
<br />mental interests for maintaining the "Park"
<br />classification on the property, including (1)
<br />the preservation of open space, (z) the
<br />maintenance ofthe village's "rural character
<br />and ambiance," (3) the provision of recre-
<br />ational opportunities, (4) the reduction of
<br />demand on the village's resources, (s) the
<br />preservation of wild life habitat, (6) the con.
<br />trol of the village's population, and (7)
<br />preservation of the village's orderly plan for
<br />development.
<br />But the trial court stated that "a munici-
<br />pality .cannot impose on a private owner the
<br />duty of a public function" and ifthe village
<br />wanted to use this private property for a park
<br />or a golf course. . . it should have taken it by
<br />eminent domain and paid for it."
<br />The big lesson here, as well as in an
<br />earlier golf course case from Minnesota
<br />(Wensmann Realty, Inc. v. City of Eagan), is
<br />that planners and local officials must con.
<br />
<br />A municipality cannot impose on a private
<br />
<br />owner the duty of a public function.
<br />
<br />Since 1966, the Amberley Villagezon-
<br />ing ordinance had classified the privately
<br />owned golf course property as "Park," which
<br />limited the uses to golf courses, parks, and
<br />public playgrounds. There were only two
<br />properties in the village classified as
<br />"Park"-a golf course and a public park.
<br />When the owner of the golf course began to
<br />
<br />sider and balance the public benefits
<br />obtained from land-use regulations against
<br />the disadvantages those regulations might
<br />have on the private property owner. A pri-
<br />vate property owner cannot bear the burden
<br />alone for preserving open space and meet-
<br />ing public goals. While the goals may be
<br />legitimate, the way communities achieve
<br />
<br />those goals must be fair (State ex reI. Ridge
<br />Club v. Amberley Vii/age, Court of Appeals of
<br />Ohio (Intermediate Court), Decided
<br />November 16, Z007, zo07 WL 3406918).
<br />
<br />Lara Lucero, A/CP, is editor of Planning &
<br />Environmental Law and staff liaison to APA's
<br />amicus curiae committee.
<br />
<br />
<br />VOL 25, NO.6
<br />Zoning Practice is a monthly publication of the
<br />American Planning Association. Subscriptions
<br />are available for $75 (U.S.) and $100 (foreign).
<br />W. Paul Farmer, FAJCP, Executive Director;
<br />William R. Klein, AICP, Director of Research.
<br />
<br />Zoning Practice (ISSN 1548-0135) is produced
<br />at APA. Jim Schwab, AICP, and David Morley,
<br />Editors; Julie Von Bergen, Assistant Editor; Lisa
<br />Barton, Design, and Production.
<br />
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