Value 



Value loss is an unreliable indicator of the constitutionality of a 

 regulation, though it provides a quick reference to sources of 

 controversy. Heavyweight nuisance abatement regulations often apply even 

 when they result in actual cash losses or a high percentage reduction in 

 land value. In other situations, the inability to pursue a modest 

 improvement program may be sufficient to tip the balance against public 

 purpose and invalidate a regulation. In coastal areas the question is 

 further complicated by the opportunities to sidestep the constitutional 

 issue discussed in the previous section. 



The Wisconsin Supreme Court offered a lesson on the tough implications 

 of the interaction of these factors: 



It seems to us that filling a swamp not otherwise commercially 

 usable is not in and of itself an existing use, which is 

 prevented, but rather is the preparation for some future use 

 which is not indigenous to a swamp. Too much stress is laid 

 on the right of an owner to change commercially valueless 

 land when that change does damage to the rights of the 

 pu b 1 i c . 



The Just's argued their property has been depreciated in 

 value. But this depreciation of value is not based on the 

 use of the land in its natural state but on what the land 

 would be worth if it could be filled and used for the 

 location of a dwelling. While loss of value is to be 

 considered in determining whether a restriction is a 

 constructive taking, value based upon changing the character 

 of the land at the expense of harm to public rights is not 

 an essential factor or controlling. [9] 



Other "heavyweight" situations relating to nuisance have been reviewed 

 by the U.S. Supreme Court and it has made it clear that loss in value, even 

 80 percent and more, is not the sole criterion in marking constitutional 

 limits on regulation. These situations, however, for example closing a 

 gravel pit, do not easily translate into the ecological perspective of 

 estuarine and wetlands management. 



State courts have taken many tacks in facing the issue. A recent 

 New Jersey discussion of wetlands management applied a "practical use" 

 test. A permit program that allowed a number of use options if environ- 

 mental standards were met did not "deny all practical use" and therefore 

 did not overstep the constitutional limit [10]. 



The New Jersey decision seems to reflect the mainstream. Where there 

 are strong declarations of public policy and a public agency cannot 

 sidestep the constitutional question, relief is available not for a 



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