Planners and elected officials deciding land use tend to shudder when you mention it: takings.
how far can a community go with regulations before an irate, and
often rich, landowner slaps back with a lawsuit claiming the
government has breached the U.S. Constitution by taking private
property without compensation?
community has more authority than it realizes, says Ed Ziegler,
executive director of the Rocky Mountain Land Use Institute at
Denver University. "You can take private property; you just have to
do some reasonable planning," Ziegler
Landowners lose more than 90 percent of
takings lawsuits brought nationally, Ziegler
Ziegler says the courts have established
that a taking doesn't occur simply because a regulation has reduced
either the market value or profit from an intended use of a parcel
of land; by one standard the courts apply, to prevail in a lawsuit,
a landowner must have no economically viable alternative
A community can downzone (rezone for less
development) or enact an ordinance preventing developers from
building in critical wetlands, for example, as long as landowners
are left some form of land use, such as hunting or other forms of
recreation, Ziegler says.
"Too many communities
accept the big lie that they can't downzone because they will take
someone's property," he says.
Ziegler warns that
local governments which seek to extract money or land set-asides
from developers must be careful, however, to meet the test of two
U.S. Supreme Court decisions.
A 1987 ruling had
to do with the California Coastal Commission requiring a homeowner
to provide the public with beach access in exchange for permission
to add another story. In Nollan v. California Coastal Commission,
the high court found that the Coastal Commission did not have such
authority. The two issues - public access and height regulation -
were unrelated, the court said, and a government agency can't apply
the permit process to extract an unrelated public
A similar, more recent case pitted the
town of Tigard, Ore., against the owners of a plumbing supply
store. The owners wanted to expand their store and pave a gravel
parking lot. Town officials said the store owners had to dedicate
the floodplain portion of their property to a storm-drain system
and turn over another 15-foot strip as a pedestrian/bicycle
In the court case, Dolan v. City of
Tigard, city attorneys argued that the requirements were directly
related to the increase in runoff and traffic that would result
from Dolan's planned improvements. But the court said the exactions
were out of proportion to the project's
Ziegler says the city could have avoided
the takings challenge altogether by putting in place a fair and
comprehensive impact fee that didn't saddle creekside landowners
with the full cost of the bike path and floodplain project, which
had wider benefits for the community.
Ziegler, "As long as your regulations can meet the Nollan/Dolan
nexus, you're safe from a takings lawsuit."