The Taking Issue 



subject to flood; and to conserve natural conditions, wildlife, and open 

 spaces for the education, recreation, and general welfare of the public. ^ 



The fact that the court was clearly able to understand the community's action, and the 

 evidence of flood danger presented, enabled the court to assess likelihood of harm and 

 community interest in balancing values. 



Issues Regarding Compensation 



Although a number of articles providing clarification have appeared in the Rhode Island 

 press, many local and state officials in the Bay watershed appear to remain uncertain as to 

 whether and to what extent local and state actions will be affected by die U.S. Supreme 

 Court decision in First English Evangelical Lutheran Church of Glendale v. County of Los 

 An geles ^ known as " First English " Although initial media coverage represented the 

 decision as a victory for land developers and regulated industries at the expense of local and 

 state governments, legal analysts in Rhode Island have postulated that the case will actually 

 work to the advantage of regulatory bodies in the state (McKinley, 1987). 



The First English case clarified the remedies available to governments whose regtilatory 

 actions are found to effect takings. Formerly, under California law, governments were 

 permitted simply to repeal or amend the contested regulation, or to limit the specific 

 application. By contrast, in Rhode Island, the case Annicelli v. South Kinestown ^had 

 given the town no such option when a taking was established, requiring the town to pay the 

 full value of compensation, equal to fee tide acquisition. If the decision in First English 

 had been available at the time of the Annicelli decision. Supreme Court affirmation for 

 broader town options would have been at hand, although much case law supportive of 



alternative remedies was relevant at the time.'* 



The U.S. Supreme Court, in First English . explicitly cited several of its most 

 longstanding decisions on the takings issue, affirming that the burden of proof imposed on 

 those alleging a taking will continue to be heavy, and that the resolution of particular claims 

 will be largely dependent on the unique facts of the case at hand. 



The property owner or regulated entity may still be required to prove that it has been 

 deprived of all practical or reasonable beneficial use or that the government's action does 

 not substantially advance legitimate pubUc interests. A diminution of value, even if it 

 amounts to a significant portion of the total, will remain insufficient in and of itself to 

 establish that a taking has occurred. If portions remain available for use, even if profit may 

 not be maximized, no taking will have occurred. Again, the Court reaffirmed the principle 

 that an investor, on purchasing property, has no right to disregard the possibility that 

 regulations to be enacted in the futiu^, in response to changed circumstances, will qualify 



^ Turnpike Realty v. Town of Dedham . 384 N.E. 2d 809 (Mass. 1972) 



^ First English Evangelical Lutheran Church of Glendale v. Cntv of L. A. . 107S.Ct.2378, 1987 



3 Annicelli v. South Kingstown. RI . 463 A2d 13 (1983) 



^ State V. Johnson . 265 A.2d 711, (Me. 1970): Bartlett v. Zoning Commission of the Town of Old Lyme . 



161 Conn. 24, 282 A.2d. 907 (1971); Dooley y.Town Planning and Zoning Commission of the Town of 



Fairfield . 151 Conn. 304, 197 A.2d 770 (1964): Morris County Land Improvement Co. v. Township of 



Parsippany-Troy Hills. 40 N.J. 539, 193 A.2d 232 (1963) 



229 



