Agenda - Planning Commission - 02/02/2017

Home

Zoning Bulletin January 10, 2017 I Volume 11 I Issue 1 until the time at which she received "actual notice" of the "nature and extent of the damages," "ultimately provided by the 2003 district court decision." The Supreme Court of Nebraska rejected that argument, stating that the "relevant inquiry [was] when the City infringed or at- tempted to infringe upon Helen's right to use the property as she wished and gave right to her rise to institute and maintain a lawsuit, not when Helen received actual notice of the ordinance affecting the property." Finally, the court also held that the load limit on the bridge to the Strodes' property did not constitute a "regulatory taking." In so hold- ing, the court explained that the United States Supreme Court has identified two types of regulatory actions that constitute categorical or per se takings: "(1) where the government requires an owner to suffer a permanent physical invasion of his property, however minor, and (2) where regulations completely deprive an owner of all economically beneficial use of his property." Finding neither of those categories ap- plied, here, the court said that the Strodes' regulatory takings challenge must then be analyzed using "essentially ad hoc, factual inquiries" governed by the following factors: "economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment -backed expectations, and the character of the governmental action." The court added that land use regulations "do not effect a taking merely because the regulation caused a diminution in property value alone." Rather, diminution of property value due to regulation requires a greater showing of damages through injury different in kind, and not merely in degree, from that suffered by the public at large. In other words, it would be insufficient for a plaintiff, such as the Strodes here, to show that the regulations require that they must go "a more roundabout way" or be inconvenienced. Here, the court found that the fact that the Strodes had to transport their fencing in smaller loads on smaller trucks was a "more roundabout way" to perform the business; while they incurred some damages, it did not constitute an injury dif- ferent in kind than the general public, only different in terms of degree. Moreover, the court found that the Strodes failed to present any evi- dence that the weight limit of the bridge decreased the economic value of the property. While Randy had testified that it cost two to three times more to transport materials in smaller loads rather than in bulk, the court found he failed to "conduct any analyses to either substantiate this claim or determine how the property has diminished in value by the weight limits on the bridge." The court also noted that the Strodes failed to prove that the load limit interfered with any of their invest- ment backed expectations since the load limit was posted years prior to the Strodes' purchase of the land. See also: Western Fertilizer and Cordage Co. Inc. v. City of Alliance, 244 Neb. 95, 504 N.W.2d 808 (1993). ©2017 Thomson Reuters 5