Agenda - Planning Commission - 11/02/2006

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( Z.B. October 10, 2006 - Page 7 DECISION: Reversed. Regulations affecting land use could cause a taking if they denied an owner an economically viable use of the regulated land. The takings clause did not guarantee property owners an economic profit from use of their land, and the mere lowering of property value by application of regulations did not amount to an unconstitutional taking. However, a compensable taking could result if the property was being over- burdened by regulations and the regulations did not substantially advance a legitimate state interest, or the regulations denied an owner all economically beneficial or productive use of his or her land. A taking also could occur based on a balancing test focusing on the character of the government's action, the economic effect of the regulation on the property, and the extent to which the regulation interfereo with distinct, investment-backed expectations. The record was insufficient to determine whether Barlow had suffered a taking. In its decision, the lower court had noted simply that Barlow could continue his current use of the property and, therefore, his takings claim lacked merit. However, neither party placed this issue before the court, nor did the parties present evidence on this issue. Consequently, the court's ruling against Barlow's takings claim was prema- ture. The case was returned to the lower courtior further proceedings. Variance _ Explosives company claims land perfect for its needs Property located in residential zone that does not allow such businesses Citation: Garrison v. Town of Henniker, Supreme Court of New Hampshire, No. 2005-471 (2006) NEW HAMPSHIRE (08/02/06) - Green Mountain Explosives Inc. manufac- tured explosives used for mining, quarrying, and construction. Green Mountain wanted to lease a I ,600-acre parcel for the purposes of storing and blending explosives. The parcel consisted of 18 separate lots. According to Green Mountain's proposal, an explosives storage and blending facility would be centrally located on 20 acres: The remaining acreage would act as abuffer zone, as required by the Bureau of Alcohol, Tobacco, and Firearms (ATF) regulations. The parcel was located in a district zoned rural residential. Green Mountain filed an application with the zoning board of appeals for two variances. First, it sought a variance to allow the proposed commercial use where only a residential use was permitted. Second, it sought a variance to allow the storage and blending of explosive material where injurious or obnoxious uses were prohibited: The zoning board of appeals ultimately granted the variances. Garrison, a neighboring property owner, sued to reverse the board's decision. The court ruled in his favor. Green Mountain appealed, arguing that there was sufficient evidence of hard- ship to support the granting of the variances. Importantly, it claimed that the @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 45