Agenda - Planning Commission - 09/07/2006

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applying environmental regulatory standards or design regulations. To illustrate, in Watson v. City of St. Petersburg (489 So.2d 138 (Ra. App.1986)), the prope.rty owner brought an action challenging the .constitutionality of a . tree ordinance on the grounds that permit review standards to be applied by the city manager were vague and did not provide guidelines to aid in interpreting key terms. Specifically, the ordinance stated that the per- mit had to be denied if the tree removal had a "significant adverse impact" on the environ. ment in eight listed areas. The plaintiff argued that terms such as "sig. nificantly" and "substantially" were not definite enough to provide the reliable and consistent application of standards. The court disagreed, however, pointing out that the ordinance con- tained eight specific grounds for denial, includ- ing ground and surface water stabilization. water quality and aquifer recharge, ecological impacts, noise pollution, air movement, air quality, wildlife habitat, and aesthetic degradation. Thus, the relatively vague terms found clear definition and explanatio.n in more detailed criteria for assessing the impacts of removal. Takings. Taking-a redevelopment meas- ure familiar to almost anyone involved in local land-use planning and regulation-is a short- hand reference to the Fifth Amendment to the U.S. Constitution's prohibition regarding pub- lic use of private property: "nor shall private property be taken for public use without just compensation." This limitation on federal power is extended to state and local govern- ments through the 14th Amendment. But can a regulation of private property, such as a tree protection ordinance, give rise to a taking? (Pennsylvania Coal Co. v. Mahon (260 U.S. 393 (1922)) The answer is that in certain cir- cumstances where a regulation denies an owner of all reasonable economic use of the property or significantly interferes with his dis- tinct, investment-backed expectations. the regulation may be recognized as a taking. In general, courts have been very sup- portive of local tree protection ordinances. Rarely do tree protection regulations consti- tute a taking because a reasonable use of the property typically remains (see Miller v. Schoene, 276 U.S. 272 (1928); Opinion of the Justice, 69 A. 627 (Me. 1908); Glisson v. Alachua County, Florida. 558 So. 2d 1030 (Fla. App. 1 Dist. 1990); Palm Beach Polo, fne. v. Vii/age of Wellington, No. 4004-2839, (Nov. 23, ZOOS); Allingham v. City of Seattle, 749 P.zd 160 (Wash. 1988)). Nonetheless, the case 100 law teaches some important lessons regard- ing potential takings claims: . Any hint that a tree protection regulatory scheme is being adopted as a substitute for a public acquisition program can be deadly ina legal challenge. . Inflexible standards, coupled with a lack of administrative relief provisions. are a recipe for judicial intervention. Variance provisions or mitigation options should provide realistic opportunities for develop. ment. Incentives such as allowing transfer of development-rights or reductions in property taxes might help take the sting out of regulations in extreme cases. owned a lo.acre tract of land for which they sought site plan approval in order to build a single.family house. Much of the Smith fam- ily's land was subject to a protective overlay zoning designed to preserve sensitive natural lands. including woodlands. The Town of Mendon approved the Smiths' site plan with the condition that they record a conservation easement on their property to put future pur- chasers on notice that the land within the overlay was restricted from development. The Smiths challenged this condition on the basis that the recording was an unconstitutional exaction of property without compensation, relying on the Supreme Court's Dolan test. . LocaLordinances should contain some sort of procedure to help ascertain when' the regula- tory impact is close to causing a taking. TAKINGS IN THE COURTS The message from the courts in recent years continues to be an encouraging one: Tree pro- tection regulations rarely amount to a "tak- ing." However, the advancement of several new, sophisticated takings theories for tree protection deserve further discussion. The cases involve exactions, the "whole parcel rule," and claims of physical occupation. Condition of approval requiring recorded conservation easement to protect wooded area is not an "exaction." In one of the more significant tree protection decisions in recent years, Smith v. Town of Mendon, (4 N.Y.3d 1 (2004)), New York's highest court ruled that a condition of site plan approval that required the applicants to deed restrict their property with a conservation easement did not consti- tute an exaction triggering heightened scru- tiny under Dolan v. City of rigard (512 U.S. 374 (1994)). In Smitli, the plaintiff applicants The New York Court of Appeals upheld the trial court's decision and affirmed the Appellate Division's ruling that the conservation restriction was notan exaction. The court defined "exac- tions" as "land-use decisions conditioning approval of development on the dedication of property to public use," and therefore. deter- mined that Dolan's rough proportionality test did not apply to the Town of Mendon's condition of approval. The court characterized the condi- tion as a "do-no-harm" use restriction that did not diminish the Smith's right to exclude the public from their property. The court then ana- lyzed the facts presented under a test for regula- tory takings as determined by Penn Central Transportation Company v. New York City (438 U.S. 104 (1978)) and found that no taking had occurred. The court reasoned that the deed recording would undeniafily advance the protec- tion of the land by placing future owners on notice of the us'e restrictions and furnish the town with a more effective means of enforcing its regulations. Under the zoning ordinance the town could only issue notice of violations. But under the deed restriction the town could seek ZONING PRACTICE 7.06 AMERICAN PLANNING ASSOCIATION I page 4