Agenda - Council - 03/12/1984 - Laserfiche WebLink

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16. 17. Q. What is an unconstitutional "taking"? A. The Fifth Amendment declares "... nor shall private property be taken for public use with- out just compehsation." State constitutions con- tain similar language. Courts have uniformly held that if private land is seized for actual use by the public as for a park, school site, or parking lot, the owner is entitled to "just compensation," i.e., fair market value. A harder question arises where the public does not seek to "use" the private land but imposes regulations which effectively curtail the owner's uses. Has the public "taken" the value of the land'/This is the "taking issue." More than one hundred state and federal court opinions on floodplain and wetland regulations have attempted to define how far public regulation can go inirestricting the owner's use of the land. All courts agree that regulations may substantially reduce th[ value of property without unconstitu- tionally '~taking" such property where a strong need for regulation is demonstrated. Where actual flooding has occurred on the site, courts have almost unanimously upheld public regulations since 1970. Where flood hazards are extreme and well documented, private use, however, may be limited to agriculture, forestry, or "open space" activities. Similarly, wetlands which are flood prone or of unusual ecological importance may be restricted to private uses which substantially maintain their natural character. This is particu- larly true where the owner can use other portions of the property not subject to flooding or wetland limitations for development. The most important factor is whether a property owner is allowed to make some economic use of the total property even though the most profitable use is not possible. Q. Must governmental bodies comply with locally adopted zoning? A. In general, federal agencies are exempt from local zoning although they must comply with Executive Orders 11988 (Floodplain Management) and 11990 (Protection of Wetlands) which incor- porate standards similar to those found in local zoning. State agencies are usually exempt from local zoning but must comply with state executive orders and statutes pertaining to fioodplains and wetlands. Local agencies must comply with state and federal requirements. They must comply with their own land use regulations when functioning in a "proprietary" capacity. When operating in a "government" capacity, they usually do not need to comply with their own regulations. "Gov- ernmental functions" are those which inherently must be performed by a governmental body such as the construction of a road system. Proprietary functions include those which could be performed by a non-public entity such as trash and garbage collection. Many activities are difficult to classify as governmental or proprietary and the distinction has been abolished in many jurisdictions. In such states, the local government would be advised to follow its own regulations. 18. Q. Must floodplain regulations be based on detailed engineering studies and maps? A. Courts have upheld the sufficiency of flood studies which lack "state of the art" engineering specificity. Only one decision has invalidated fioodplain regulations due to lack of data, and in this case there was no theoretical or physical evi- dence of flood hazard. The sufficiency of data in a given case inpart depends upon the degree of restriction based upon such data as well as upon the availabiliy of procedures for developing more refined data in the process of considering specific developments. 19. Q. What is the result if experts differ as to the elevation or boundaries of floodplains or wetlands? A. Generally, when there is a valid difference of professional opinion among experts, courts will uphold the action of the state or local community. There is a long-standing presumption that local legislative actions are valid in the absence of evi- dence that they are "arbitrary, capricious, or unreasonable." Courts generally defer to govern- ment experts on technical matters and will not normally disturb a selected methodology. 20. Q. After a flood occurs may a community impose a temporary moratorium on permits for new or replacement construction pending the adoption of floodplain zoning or other measures? A. The answer is yes, for a reasonable period of time. Moratoria of several months to several years in duration have been upheld. Local units of government often adopt temporary regulations pending the completion of detailed flood studies, adoption of comprehensive regulations, the prep- aration of a re-use plan, or construction of flood control works.