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40 Memorandum to Ramsey City Council March 25, 2009 • Page t enjoyment of the property and that such invasion results in, a definite and measurable diminution of the market value of the property." Id. There must be a repeated, aggregate and reasonable probability that the conditions will continue. Id. In the 2004 Minnesota Court of Appeals unpublished case of Mark Miskowiec, et al. vs. City of Oak Grove, the Court regarding our neighboring City of Oak Grove held as follows: Both the federal and state constitution forbid the taking of private property for public use without just compensation. U.S. Const. 5 Amend.; Minn. Const. art. I, § 3. While the'takings clause originally applied only to physical appropriations of property, the U.S. Supreme Court recognized that regulations on property may also be considered takings if the regulation. goes "too far." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, (1922) (citations omitted). In determining whether a regulation goes "too far," the U.S. Supreme Court has • recognized two distinct classes of regulatory takings; (1) categorical takings, in which the regulation "denies all. economically beneficial or productive use of land," under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, (1992) (citations omitted); and (2) case - specific takings, which involve consideration of the economic impact of the regulation, the interference with reasonable investment - backed expectations, and the character of the regulation. Penn Cent. Transp. Co. v. City o New York, 438 U.S. f 104, (1978) (citations omitted); see also Agins v City of Tiburon, 447 U.S. 255, (1980) (citations omitted). In Minnesota, landowners seeking to compel inverse condemnation have the burden of proving a taking haG occurred. Vern Reynolds Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 617 (Minn. App. 199 review denied (Minn. Dec. 20 1995). As defined 'in Lucas cited above, application of subsection 9.26.06 does not appear to be a "categorical" or unqualified taking as implementation of the regulation does not have the effect of permanently denying a • property owner of "all economic beneficial uses" of his/her property. Presumably with the wetland buffer in place, the property still has several productive uses including recreational, wetland access and general open spaces uses as suggested in the Oak Grove case. —213—