COM 0045.022 2002-2004 - Laserfiche WebLink

Home

been shaped by the State's law of property - i.e., whether and to what degree the state's law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value. 505 U.S. at 1016, n.7. Several lower federal and state courts have dealt with the issue. Thus, both Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994) and Loveladies Hazbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) discuss the denominator issue in the context of denials of section 404 (Clean Water Act) dredge and fill permits issued by the Army Corps of Engineers. In Loveladies, the court considered only 12.5 of plaintiff's 250 acres, holding ultimately that the Corps effectively denied the landowner all economically beneficial use and so was liable for the difference in value with ($2.7 million) and without ($12,500) the permit. To the same effect is Palm Beach Isles Assoc. v. United States, 208 F.3d 1374 (Fed. Cir. 2000) in which the court held the relevant parcel for regulatory takings analysis was 50.7 acres rather than 311 acres owned by the plaintiff landowner. Similarly in East Cane May Associates v. State, 693 A.2d 114 (N.J. Super. Ct. App. Div. 1997) the court held that the denominator would not include adjacent property subdivided and sold many years prior to the enactment of the present regulations denying use. To the same effect, Animas Valley Sand and Gravel Inc. v. Board of County Commis, 8 P.3d 522 (Col. Ct. App. 2000), where the court accepted as the relevant parcel only landowner's 33 acres designated in a river corridor district, rather than all of plaintiff's adjoining property as well. D. It is Possible That Various landowners in the County have changed positions based upon existing zoning, putting in infrastructure and subdividing their land in the investment-backed expectations generated by existing County land use regulations and therefore have vested rights to proceed with construction of additional dwellings. The doctrine of vested rights is designed to protect property owners from a change in the law which would otherwise render a land development project or construction illegal, which was otherwise legal when commenced. The landowner has a vested right to continue such a project if the landowner has expended money in reliance on the existing land use controls in effect at the time the project or construction is commenced. Virtually any governmental action approving the commencement of a project will do, except that in Hawaii if there is still a discretionary permit outstanding -such as a shoreline management permit -the landowner's right to proceed does not vest until that last discretionary permit is issued. Most courts having considered the matter agree that approval of a subdivision plat or plan vests such rights. See, e.g., Youngblood v. Board of Supervisors of San Diego County, 586 P.2d 556 (California 1978). It may well be that many landowners have spent money in reliance on their existing zoning classifications to install infrastructure necessary for the construction of dwelling units on their land. Others may have expended funds for the subdivision of their lands in similaz reliance on existing zoning. These owners need only a building permit under existing zoning to construct houses on their infrastructured and subdivided land in order to construct additional dwelling units. Under Hawaii law, with no additional discretionazy permits (preliminary subdivision plat 9