The Taking Issue 



that municipal officials aa diligently and in good faith in pursuing the necessary 

 improvements. ^ 



In First English . the Supreme Court acknowledged that a public safety defense to a 

 takings claim may be available as to interim measures, as well as to regulations of a more 

 permanent nature. The 1979 ordinance challenged by the church had been adopted in 

 response to a severe flood, for public health and safety reasons. Although it had been 

 amended in 1981 to permit the construction of certain types of structures, the criteria 

 traditionally used to determine the validity of moratoria will probably be applied in the 

 Court's examination of the issues: 



"We have no occasion to decide whether the ordinance at issue actually 

 denied appellant all use of its property or whether the county might avoid 

 the conclusion that a compensable taking had occurred by establishing that 

 the denial of all use was insulated as a part of the State's authority to enact 

 safety regulations." 



Generally courts have recognized that powers to protect public health, safety, and 

 welfare, that i^, police powers, must be extremely broad and responsive in order to both 

 address changes in community needs, and react to improvements in data relied upon in 

 assessing those needs. This necessary flexibility was emphasized in the judicial opinion 

 rendered in Candlestick Properties ^: 



"In short, the police power, as such, is not confined within the narrow 

 circumspection of precedents, resting upon past conditions which do not 

 cover and control present conditions.. .that is to say, as a commonwealth 

 develops politically, economically, and socially, die police power likewise 

 develops, within reason, to meet the changed and changing conditions." 



In O.C. Construction Co.. Inc. et al. v. Gallo et al.. the court found weaknesses in the 

 manner in which the town's resolution had been applied: a) the resolution was not part of a 

 comprehensive plan to remedy the sewer problems; b) it was not time limited in its effect; c) 

 the town had taken insufficient steps to remedy a chronic problem. 



In providing remedy to the plaintiffs, the court mandated that the Johnston building 

 inspector should view current and future building permit applications in the neighborhood 

 with regard to their compliance with the building code and not with regard to the 

 moratorium, and that sewer tie-in permits should be granted. Costs and fees were also 

 awarded. Clearly, the town's efforts to deal with a severe sewer back-up and flooding 

 problem, though legitimate in concept, were poorly served by the inadequately supported 

 moratorium. 



Other moratoria have been implemented successfully in Rhode Island. South 

 Kingstown instituted a building moratorium during the period in 1985 and 1986 when the 



^ Wincamp Partnership. QIC v. Anne Arundel County. Maryland . 458 F. Supp. 1009, 1030 (D. Md. 

 1978); Charles v. Diamond . 41 N.Y. 2d at 327, 360 N.E.2d at 1301, 392 N.Y.S 2d at 600; Belle Harbor 

 Realty Corp. v. Kerr. 35 N.Y.2d 507, 512, 323 N.E.2d 697, 699, 364 N.Y.S.2d 160, 163 (1974) 

 Candlestick Properties. Inc. y. San Francisco Bay Conservation and Development Commission . 89 Cal. 

 Rptr. 897, 905 (1970) (citations omiued 



232 



