COM 0042.062 2004-2006 - Laserfiche WebLink

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Ashford & Wriston 12/17/20U:i 1u:az rnvn v~rav,= While a strong argument can be made that the statutory scheme here at issue...is for the totmoorn good, that argnmem, if resolved favorably to the County, does nol, under Lucas, resolve the matter. Even if it were for the common good, it still tnay cause an uncorrstim- tional taking if it, as it does in the case sub judiee, results in ille loss of an viable economic uses. 111 Md. App. 1, at 36-37. B. Aland use regttlatlon also takes land contrary to the FSfth Amendmwt to the US Constitution rhea its economic effect on the landowner is severe, partlcularly if It frustrates the distinct iuvestment-backed expectations of the landowner and the e3tuscter of the governmental action is weak. A partial taking by regulation ocarcs when a land use regulation deprives a landowner of use d d value bV j""+d Lrie nerm&1 r0'.au~.ticn, ia° u:,y, Caii.~+ uy ti2 II~u cry CREt~'l58 Oi th8 Fivi1CZ power for the health, safety and welfare of We people, but stops short of depriving the owner of all aonornicallybeaeficial use. The govwnment's rationale for the regulation and ilte economic effect of the regrlation on the landowner are critical factors which a reviewing covet weighs in deciding whether a landowner has suffered a partial talang of prnpa ty. Partial takings are more common than totes takings, but tbe standard is clear. As thus case suggested in footnote e'i~a Cf it's GNuuGry iva Gwuct vr3tG has allueiod lca8 tltari a tuts di'~tlVattbn 6f Cu' 7nOnilCaliy beneficial use "...might not be able to claim the benefit of olv categorical formulation, but, as we have aclmowledged time atld again, `[tjhe economic impact of the regulation and...the exirnt to which the regulation interfered with the disthrct investment-backed expectations' are keenly relevant to the takings analysis generally." The ease which the Court cites altd from which it quotes above is Perm Central 'transportation Co. v. New York City. 438 U.S. 104 (1978), in which the Court sd out the 5amework for deciding partial regulatory taking cases. The Court there upheld New York City's Landmark Preservation Law, which effectively prohbited Penn Central from tonstructing afifty-Sue story office building in the a'lr rights above Grand Central Station. Penn Central claimed both the desi m+~ 'on of ~e st_r'so^. m< a his!etic !--at~.atk and the prohibidor. of its dwelopm~t plars conatitutod applied and facie] takings of its property under the Fifth and Fourtccnilr Amendments i0 the U.S. CCin3~titutt66 Before reaching the merits ofthe case, the Courl suggested "severa"l factors" which Gave `parficular significance" when it engages in "these essentially ad hoc, fachral inquiries": 1. Th^ GS^^^e.m2L llnp°..C.t Of ~1iv rBp.rlof....:....... vn tw Gl2iu..ii. oiad, Niu,iCuld'iiy, wL Cx'wali w which the regulation has interfered with the distinct, investment-backed expectations; 2. The cbaractar of the governmental action; 3. Whether rho taking is physical of if"du interference arises from some public programo adjusting the benefits and burdens of oconomic life to promote the cornnwn 8~•" Penn Central. 438 U.S. at ]2d. Adjusting the benefits and the burdens -the relevant part of the third criteria - is probably of little importance efts Lucas given the Court's language there 6