particular degree of economic harm, but when no practical use for the 

 property is allowed. 



A successful court challenge usually results in the invalidation of 

 the challenged regulation. Typically a property owner will not collect 

 money as a result. To provide a compensation alternative, some states have 

 adopted laws requiring actual compensation. This process can lead to 

 another legal quagmire, the Catch 22 of the regulation-taking issue. 

 Where the law requires compensation only when a regulation exceeds 

 constitutional limits, it effectively pushes all regulated landowners into 

 loss of development value position, and allows compensation only in those 

 few cases where it pushed too far. The occasional compensation may be 

 just for the individual who wins, but it provides little justice for 

 those who fall barely outside the reach of the compensation requirement or 

 cannot afford court review. 



To review the argument, a valid regulation may result in substantial 

 loss in value for a parcel of property. But valuation for compensation in 

 the event the regulation oversteps the constitutional limit must ignore 

 the regulation (it is invalid) and would usually require just compensation 

 at the full fair market value. The results parallel the public refuge-- 

 regulated wetland analogy. Most regulated property owners receive no 

 compensation. Those who demonstrate the extreme circumstances that 

 justify a court finding of a "taking" (and the costs of litigation) get 

 full compensation in the typical statutory compensation scheme. Usually 

 no middle ground remains to soften the effect of touch but valid 

 regulations for those who must continue to live with them. 



Professor John Costomis has begun a dialogue on a judicial option 

 for dealing with this problem in a recent article describing the 

 "accommodation power." ( Columbia Law Review , January 1976). Crudely 

 described, the power he advocates would permit partial compensation 

 awards by the courts in the grey area between valid regulation and clear 

 taking for public use. In another forthcoming study. Professor Donald 

 Hagman also explores "windfalls for wipeouts" as another approach to the 

 compensation issue. Unless a legislative or judicial solution of this 

 sort emerges, there is likely to be continuing controversy over the 

 constitutional limits on regulation for wetlands and estuarine 

 management [11]. 



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