Agenda - Planning Commission - 06/02/2011

Home

April 10, 2011 ( Volume 5 ( No. 7 Zoning Bulletin Henry later sold the land. However, he still sued the county. He al- leged that the county "took his property without just compensation by... denying him a meaningful CUP." More specifically, he claimed that the PZC "took his property by granting him a 14-unit CUP rather than the 51-unit CUP to which he claims he was entitled." Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court granted summary judg- ment against Henry on all claims. Henry appealed. DECISION: Affirmed. The United States Court of Appeals, Fourth Circuit, held that the PZC's decision to grant Henry a 14-unit CUP rather than a 51-unit CUP did not amount to a regulatory taking. Henry had argued that his CUP proposal fell under certain heightened density provisions that entitled him to a CUP of over 100 units. Thus, he contended that he was "entitled as a matter of right to a permit for his [earlier] high -density townhouse project." He argued that once he agreed in principle to resolve all issues, the PZC was obligated to issue the CUP. The court disagreed. It acknowledged that "when a developer's uncontradicted expert evidence resolves outstanding issues, the [PZC] lacks discretion to deny the CUP." However, emphasized the court, in the absence of such circumstances, the PZC could "properly consider density in using its discretion to resolve murkier requests." Here, Henry presented no expert testimony on density, and the PZC explicitly cited density in granting only a 14-unit CUP. It had discretion to do so, and as a result Henry was not entitled to a 51-unit CUP, concluded the court. Thus, Henry could not claim that the PZC took his property simply by granting a smaller CUP. Henry had also alleged that the grant of the smaller CUP took his property under "ordinary regulatory takings doctrine." The court dis- agreed. It acknowledged that property regulations that go too far take a landowner's property. However, the court found it "obvious that the grant of the smaller CUP did not unacceptably interfere with Henry's existing property interests under the regulatory takings framework." The PZC's action on Henry's CUP request "never subjected his proper- ty to physical invasion, nor did it eliminate the property's value," found the court. Otherwise, explained the court, a regulatory taking would be found to have occurred only if there was "economic harm approaching constitutional magnitude"; there was interference with Henry's "invest- ment -backed expectations"; or the character of the PZC's action was "functionally equivalent to the classic taking in which government direct- ly appropriates private property or ousts the owner from his domain." Here, the court found, even if it assumed the 14-unit CUP was not economically feasible, Henry's various parcels "retained permitted uses 10 © 2011 Thomson Reuters