COM 0045.022 2002-2004 - Laserfiche WebLink

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While a strong argument can be made that the statutory scheme here at issue...is for the common good, that argument, if resolved favorably to the County, does not, under Lucas, resolve the matter. Even if it were for the common good, it still may cause an unconstitu- tional taking if it, as it does in the case sub judice, results in the loss of all viable economic uses. 111 Md. App. 1, at 36-37. B. Aland use regulatiou also takes land contrary to the Fifth Amendment to the US Constitution when its economic effect ou the landowner is severe, particularly if it frustrates the distinct investment-backed expectations of the landowner and the character of the governmental action is weak. A partial taking by regulation occurs when a land use regulation deprives a landowner of use and value beyond the normal reduction, if any, caused by the necessary exercise of the police power for the health, safety and welfare of the people, but stops short of depriving the owner of all economically beneficial use. The government's rationale for the regulation and the economic effect of the regulation on the landowner are critical factors which a reviewing court weighs in deciding whether a landowner has suffered a partial taking of property. Partial takings are more common than total takings, but the standard is clear. As the Lucas case suggested in footnote eight of its opinion, an owner who has suffered less than a full deprivation of economically beneficial use "...might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, `[t]he economic impact of the regulation and...the extent to which the regulation interfered with the distinct investment-backed expectations' are keenly relevant to the takings analysis generally." The case which the Court cites and from which it quotes above is Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), in which the Court set out the framework for deciding partial regulatory taking cases. The Court there upheld New York City's Landmark Preservation Law, which effectively prohibited Penn Central from constructing a fifty-five story office building in the air rights above Grand Central Station. Penn Central claimed both the designation of the station as a historic landmark and the prohibition of its development plans constituted applied and facial takings of its property under the Fifth and Fourteenth Amendments to the U.S. Constitution. Before reaching the merits of the case, the Court suggested "several factors" which have "particular significance" when it engages in "these essentially ad hoc, factual inquiries": 1. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with the distinct, investment-backed expectations; 2. The chazacter of the governmental action; 3. Whether the taking is physical or if "the interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Penn Central, 438 U.S. at 124. Adjusting the benefits and the burdens -the relevant part of the third criteria - is probably of little importance after Lucas given the Court's language there 6