COM 0042.062 2004-2006 - Laserfiche WebLink

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Ashford >y. WrlSton 1Lil~iww _ value, and value is a key indicator in tams of economic effect. There are no continuing mitigating uses here ea there were with respect to the fully-operational (complete with commercial tenants] L3rand Central Station in Perm Central- As the California court of appeals noted in its decision in the Pirst Lutheran case on tetnand, courts ate willing to balance the equities more in favor of gover®tent when the challenged regulation is for health and safety purposes rather than welfare, and in favor of the landowner when the challenged regulation is for welfare purposes rather than haahh and safety. 3. Legltlmate Stah Interest Some courts continue to decide regulatory takings cases under flee "legitmrate state interest" pmno Qf the tT C, Cunrrmg f'.rairt a ~ cirm is Agi;ns V. City of Tiban±a.447 Vim. 255 (IOR~), T.~- ' Thus, in State ex rel Shemo v City ofMayfield Heights. 75 N.E.2d 345 (Ohio 2002), Ure Ohio supreme court held that the city lacked any legitimate governmental health, safety or welfare concerns in support of a planned development reclassification of realtot's land which reshicted it to single-Family uses, and therefore the classification did not substantially advance any legikmtate city police power itterest. Also in ~liooleraR Pg4 Inc v Schookcrafi Township 2000 WL 33409627 (Mich. App.), a Michigan sppeala court remsaded for trial a regulatory taking attack on an ordinance directed at stopping the expansion of plaintiff a egg business on the ground that the govemmeat had pttsented ao proof that placing a limit on the facility had any reasonable relationship to a legitimate governmental intueat. To the same effect is Cwvaar v. City & County of San Francisco. 709 Ca1.Rph.2d 233 (Cal. App. 1 Dist. 2001), in which the court held that an ordinance restricting a landlord's ability to evict a tenant, particularly if the Landlord wished to take possession for the Iandlo~rd's personal use or residence, might constitute a taking depending upon the evidence adduced at trial on the legitimacy of die goverrunent's interest in passing the ortnance. C. Relevant Parcel for Landowners Under the Draft General Plan Is, For Takings Porposes, flee Remnant Parcels WhicL Are Eitlier Undevelopabke or llrs~chf~alhr A...^~.Stw t~ V~lnn Carving out undevelopable parcels raises substantial regulatory taionga problems under regulatory takings jurisprudence. The critical question, of coarse, is, what is that relevant parcel, or, a4 apgy phrased by the Lucas opinion: When, for cxatnple, a regulation roquires a developer to leave 90% of a Waal tract in its nahual state, ii is unclear whether we would analyze the situation u one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole...[there follows criticism of that portion ofthe New York state court decision in Pena Central which suggested that nearby property of the owns could be combined with that portion he claimed was unusable in deciding whether there had been a regulatory taling]...The answer to this difficult question may liken trove the owtroer's reasonable expectations have 8