The Taking Issue 



Because judicial rules place the burden of proof on an opponent of a government action 

 to prove it invalid, courts may play a narrow role in examining a locality's determination. 

 Courts have also agreed with data experts that imperfections are inherent in land and water 

 resource data collection and mapping, and that approximations must be used in providing 

 timely clarification of management objectives. 



The degree of support needed to buttress an action may as a practical matter be related to 

 how the scientific evidence is to be used. The more severe a regulatory action, the more 

 confidence should be attached to the data required to support the initiative. Particularly 

 with data related to protection of public health, however, the presumption of validity 

 coupled with the heavy burden of proving a regulatory action arbitrary may allow a 

 community broad discretion in taking regulatory initiative. 



2. The Taking of Property 



"...nor shall private property be taken for public use, without just compensation" 



Non-point source controls generally limit development options available on propenies 

 affecting certain resources, and prescribe construction and maintenance practices which 

 must apply so as to control adverse affects of specific property uses. As such, 

 communities imposing such controls may be open to legal challenges in which property 

 owners attempt to establish that regulations have "taken" or unconstitutionally burdened a 

 given property without paying compensation. If a court finds that a "taking" or "inverse 

 condemnation" has occurred, it may invalidate the regulations as to the particular piece of 

 property involved in the suit, or may require that compensation be paid to the owner by the 

 responsible regulatory body. 



Approaches to Evaluation 



In examining allegations of taking, courts generally take one of two approaches, and 

 resolve on a case-by-case basis, such that the facts of each case largely determine the law. 

 In the first approach, a determination is made as to whether the activity regulated is a 

 nuisance use or harmful to the public health or safety. The second approach focuses on 

 property value, balancing the effect of the regulation on the value of the complainant's land 

 against the public value or purpose of the regulation. Courts have applied both the 

 nuisance test and the reasonable use or diminution of value test, or variations thereof, 

 within the same case. 



In the nuisance approach, regulations or actions prohibiting use of land which 

 substantially threaten public health or safety or impair enjoyment and use of nearby 

 resources are generally not found to effect a "taking." In the Del Norte case in California,! 

 for example, the flooding that had consistentiy been so damaging in the area at hand made 

 the proposed subdivision use of that land a nuisance. 



Even where recent damages have not occurred, regulations can still be regarded as 

 controlling a nuisance. Proof that unregulated actions in an area would increase public 

 exposure to chemical, disease, or flood hazard, impair correction or relief efforts, or 



1 Turner v. County of Del Norte . 101 Cal.Rptr. 93 (1972) 



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