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Memorandum to Ramsey City Council <br />March 25, 2009. • <br />Page 3 <br />3. <br />However, a landowner whose property is subjected to the wetland buffer regulation may be <br />able to claim a case specific regulatory taking, also as discussed in the Lucas case: As stated in Lucas <br />and the 2003 Minnesota Supreme Court case of Johnson v. City of Minneapolis, 667 N.W.2d 109 <br />(Minn. 2003); anything less than a complete taking of property requires the balancing test set forth in <br />Penn Central Supra. This test requires the court to consider: • <br />1. The econoinic impact of the regulation on the claimant; <br />2. ' The extent to which the regulation has interfered with distinct investment-backed <br />expectations; and <br />The character of the government regulation. <br />Penn Cent. Transp. Co. Supra <br />In deciding whether a particular governmental action has effected a taking, <br />this court focuses ": . . on <br />th e character of the action and on the nature and extent of the interference with rights in the parcel as a <br />whole." Id. <br />In summary, it is my opinion that the City Code subsection. 926.06 subd. 9. is not <br />categorically or per se unconstitutional, as all economically viable uses of the property will not be <br />. taken as a result of implementation of the said subsection. <br />With that said, however, it is possible that a landowner's case specific facts could demonstrate <br />that a regulatory taking has occurred and inverse condemnation should be ordered by the court. The <br />factors the court will consider in making such a determination are those referenced in the Johnson <br />case cited above. Johnson v. Mpls. Supra. <br />—214— <br />41 <br />a• <br />