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<br />Memorandum to Ramsey City Council <br />March 25, 2009 <br />Page 2 <br /> <br />enjoyment of the property and that such invasion results in a definite and measurable diminution of <br />the market value of the property.;' Id. There must be a repeated, aggregate and reasonable probability <br />that the conditions will continue. Id. <br /> <br />In the 2004 Minnesota Court of Appeals unpublished case of Mark Mislwwiec, et al. vs. City <br />of Oak Grove, the Court regarding our neighboring City of Oak Grove held as follows: <br /> <br />Both the federal and state constitution forbid the taking of private property for public <br />use without just compensation. U.S. Canst. 5th Amend.; Minn. Const. art. I, ~ 3. <br />While the takings clause originally applied only to physical appropriations of property, <br />the. U.S. Supreme Court recognized that regulations on property may also be <br />considered takings if the regulation goes "too far." Pennsylvania Coal Co. v. Mahon, <br />260 U.S. 393, (1922) (citations omitted). <br /> <br />In determining whether a regulation goes "too far," the U.S. Supreme Court has <br />recognized two distinct classes of regulatory takings; (1) categorical takings, in which <br />the regulation "denies all economically beneficial or productive use of land," under <br />Lucas v. South Carolfna Coastal Council, 505 U.S. 1003, (1992) (citations omitted); <br />and (2) case-specific takings, which involve consideration of the economic impact of <br />the regulation, the interference with reasonable investment-backed expectations, and <br />the character of the regulation. Penn Cent. Transp. Co. v. City of New York, 438 U.S. <br />104, (1978) (citations omitted); see also Agins v. City ofTiburon, 447 U.S. 255, (1980) <br />(citations omitted). <br /> <br />In Minnesota, landowners seeking to compel inverse condemnation have the burden <br />of proving a taking has occurred. Vern Reynolds Constr., Inc. v. City of Champlin, <br />539 N.W.2d 614,617 (Minn. App. 1995), review denied (Minn. Dec. 20, 1995). <br /> <br />As defined in Lucas cited above, application of subsection 9.26.06 does not appear to be a <br />"categorical" or unqualified taking as implementation of the regulation does not have the effect of <br />permanently denying a property owner. of "all economic beneficial uses" of hislher property. <br />Presumably with the wetland buffer in place, the property still has several productive uses including <br />recreational, wetland access and general open spaces uses as suggested in the Oak Grove case. <br /> <br />40 <br />