The Taking Issue 



also open it to challenges on equal protection grounds. Like taxation, however, non- 

 expenditure can generally be based upon any rational or material difference which serves to 

 distinguish the non-recipients of community funds from the recipients (Godschalk, et al., 

 ibid). Reliable data is needed to refute such challenges, but data collected to suppon 

 development of overall sewage management plans or erosion control policies should be 

 available. A well-conceived plan should demonstrate that the use of classifications and 

 different treatment procedures was widespread and rationally justified, and not 

 disproportionately placed on a few properties. 



Moratoria and Interim Ordinances 



Responding to the need to control potentially harmful development impacts while 

 necessary research and planning proceeds, many communities have adopted interim 

 ordinances or moratoria. These instruments constitute a temporary deferment or delay in 

 the issuance of government permits, and must be both reasonable in purpose and limited in 

 duration. In addition, where the potential for imminent environmental damage can be 

 demonstrated, moratoria can be enacted to prevent such damages. 



Use of moratoria and interim ordinances has recently been viewed with some trepidation 

 in Rhode Island, due to the outcome of specific legal challenges. In O.C. Construction Co. 

 Inc. V. Galloetal. .^ for example, plaintiffs challenged the constitutionality of a residential 

 building moratorium enacted by Resolution of the Town Council in 1983. The Rhode 

 Island District Coun ruled for the developer, citing flaws in the manner in which the 

 moratorium had been conceived and implemented. ' 



The Opinion handed down in O.C. Construction, however, reaffirmed longstanding 

 judicial approval for the legitimate use of moratoria in addressing community needs. When 

 naoratoria form part of a comprehensive plan to remedy a given problem situation, they 

 have consistently been approved.^ Even where a history of harmful outcomes has not yet 

 developed, moratoria may be used to study potential needs and to develop a coherent 

 approach to prevention of public harm. As confirmed in First English, moratoria may be 

 considered as a universal planning tool. However, those moratoria not adopted in 

 furtherance of a coherent course of study or in an effort to develop a comprehensive plan 

 have been treated with less deference.^ 



With regard to duration of such measures, courts have supported moratoria enacted as 

 regulatory instruments of temporary, reasonable, or limited duration,'* and have insisted 



^ O. C. Construction Company. Inc.. et al. v. Gallo et al. . C.A. NO. 85-224 I 



^ Schafer v. New Orleans . 743 F.2d 1086 (5th Cir. 1984); Smoke Rise. 400 F.Supp. at 1385; Golden v. 



Planning Board of the Town of Ramapo. 30 N.Y.2d 359, 285 N£.2d 291, 334 N.Y.S.2d 138 (1972) 



a ppeal dismissed: Rockland County Builders Assoc, v. Mcalevev . 409 U.S. 1003 (1972) 



3 Westview Forest Estates. Inc. v. Village of So. Nvack . N.Y.2d at 428, 244 N.E.2d at 702,277 N.Y.S. 2d 



at 133 



^ Schafer y. New Orleans . 743 F.2d 1090 (5th Cir. 1984); Smoke Rise . 400 F.Supp. at 1385-1386 



231 



