Agenda - Planning Commission - 04/05/2007

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March 15, 2007 [ Voiume 1 I No, 6 A municipality could take land of a private owner for a public use if it offered the owner just compensation for the land; this right is called eminent domain. Generally, the rule for determining damages in eminent domain cases relied on dererm.ining the fair market value at the time of the taking. Fair market value was established by de- termining the "highest and best use" to wruch the property could reasonably be put. Here, because no development had occurred on the land, its potential value as a residential subdivision was what had to be considered. Because it had preliminary ap- proval only for the subdivision, Clark had to show by a preponderance of the evi- dence that it was "reasonably probable" that it would have been given final approval to develop the land. In cases where potential use was the basis for determining the market value for property, development handicaps had to be considered. At the heart of the issue was the question of whether there were any land use re- strictions that would prevent all 17 of the lo'ts from development. Clark argued that there were no such restrictions, while the city cited the act. in the record, Clark's ap- praiser stated that the act was not in place at the time of the appraisal, but noted that two of the lots were located within a wetland area and would require "conservation commission orders of condition." However, Clark's argument that the act was not in place failed. The act was en- acted in August 1996 as an emergency order; meaning that it took effect immediately. The laCk of regulations introduced in association with the act did not mean that it was not enforceable, as Clark had argued. The court noted that "[t]here [was] noth- ing in the [act] to indicate that its applicability was suspended until implementing reg- ulations [were] issued." The act stated dearly that no development was permitted on land in a riverfront area unless the applicant had proved that the work would have no significant impact on the area. The record here showed that there were questions as to whether Clark's proposed development would impact the area; both the appraiser for the city and Clark's own appraiser expressed doubts as to whether two of the lost could support constniction outside of the buffer zone protecting the river. Thus~ it was clear that Clark had not met its burden. The appeals court found that the lower court had reasonably determined that only 15 of Clark's lots were buildable and that the compensation should be based upon those lots only. The decision of the lower court was affirmed. See also: Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 377 N,E,2d 909 (1978), See also: McLaughlin v. Board of Selectmen of Amherst, 38 Mass. App. Ct, 162, 646 N.E.2d 418 (1995), aff'd, 422 Ma<s, 359, 664 N.E,2d 786 (1996), Special Exception - City allows addition of 55- foot 'tower' in residential area Neighbor argues structure violates resideutial height restrictiou Citation: Ross v. Harris, 860 N.E.2d 602 (Ind. Ct. App. 2006) INDIANA (01116/07) - In June 2004, Ross applied -to the city of Michigan City for a building permit to construct a second-floor addition to his home on Sheridan Beach. The structure was essentially an additional living space, but Ross character~ ized it as a "tower" for the purpose of the application. The permit was issued and Ross began constructing the 55-foot high tower. Importantly, there was a 30-foot height restriction on buildings in the residential area. 7 113