Agenda - Planning Commission - 01/04/2000

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E.g. November 25, 1999 m Page 5 The subdivision was built in the early 1980's. At that time, the city had a flood plain ordinance requiring a permit to engage in construction in the flood plain. The developers did not seek a permit under the ordinance. Instead, they obtained a permit from the state Department of Water Resources. The depart- ment had authority to permit construction in the flood plain at the time the subdivision was constructed. However, the city could have stopped construc- tion by refusing to grant a permit under its ordinance. -' Following the issuance of the permit, the city approved a special use permit that allowed the developer to extract dirt, gravel, and sand to create a lake within the subdivision. The city also approved and accepted the subdivision plat. ~ Also in the early 1980's, the city entered into a written agreement with the state allowing the highway constmcfi0n. Bargmann sued, alleging that these actions were a taking of her property for public use without just compensation. The district court granted the city's request for judgment without a trial, determining that any action by the city in allowing the construction did not amount to a taking. Bargmann appealed, contending the city's approval of the plat for the sub- division, its agreement to allow the highway, and its failure to enforce the ordi- nance was a taking. DECISION: Affirmed. The city's actions did not constituie a taking. · The 5th Amendment to the U.S. Constitution, made applicable to the states through the 14th Amendment, provid?s: "Nor shall private property be taken for public use, without just compensation." Generally, a taking occurs in the'context of governmental regulation of property. In this case, Bargmann contends it is the regulation of land owned by others that caused the taking. Under these facts, no regulatory taking could have occurred. Under Article I, Section 21, of the Constitution, one whose property has been damaged by the construction of a public improvement by a state or state subdivision has been damaged for a public use. As to the city's involvement in the two projects, the city only approved the plat, issued a special use permit, and agreed to allow the highway. The city was not involved in the constructio.n, development, or maintenance of the subdivi- sion or the highway. Therefore, it was not sufficiently involved in the construc- tion to make the development a taking of property for public use. Citation: Bargmann v. Nebraska, Supreme Court of Nebraska, Nos. S-98-282 through S-98-289 (1999). see also: Strom v. City of Oakfand, 538 N. W. 2d 311 (1998). see also: Steuben v. City of Lincoln, 543 N. W. 2d 161 (~996).