Agenda - Planning Commission - 09/05/2013

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Zoning Bulletin July 25, 2013 I Volume 7 I Issue 14 "[A] regulation may effect a taking requiring just compensation even if it does not deprive the owner of 'all economically beneficial use' of his or her property, depending on the particular circumstances of the case . . . . Furthermore, a temporary regulatory taking may require payment of just compensation for the period the taking was in effect." Thus, "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." A government regulation, such as in this case, which neither causes a property owner to "suffer a permanent physical invasion" of his or her property nor deprives the owner of "all economically beneficial use" of the property, may still amount to a regulatory taking dependent upon the weighing of three pri- mary factors: (1) the "economic impact" of the regulation on the claim- ant; (2) the extent to which the regulation interferes with "distinct investment -backed expectations"; and (3) the "character of the govern- mental action." Here, the court concluded that the County's actions amounted to a regulatory taking because: (1) the County's regulatory action "unreason- ably impaired both the value and use" of the Lockaway Property — particularly in light of the fact that Lockaway always intended to develop the Property as a storage facility, had invested substantially in that development with no indication from the County administrators that it could not under Measure D, and would have incurred substantial costs to convert the property to another use; (2) the County's regulatory action interfered with Lockaway's reasonable investment backed expectation that its Project could proceed, given that the County had confirmed that Lockaway could rely on the CUP and encouraged the development, until the County changed its position in September 2002; and (3) the County's "regulatory about face was manifestly unreasonable," not just because of its "devastating" economic impact on Lockaway, but also because it deprived Lockaway of a "meaningful opportunity to attempt to protect its property rights" given that the change of position came at the expira- tion.of the CUP. The court concluded that the County's application of Measure D to shut down the Lockaway Project was a temporary regulatory taking that required the payment of just compensation. The court affirmed the dam- ages and attorney's fees award. See also: Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631, 11 Env't. Rep. Cas. (BNA) 1801, 8 Envtl. L. Rep. 20528 (1978). See also: Palazzolo v. Rhode Island, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592, 52 Env't. Rep. Cas. (BNA) 1609, 32 Envtl. L. Rep. 20516 (2001). ©2013 Thomson Reuters 11