The Taking Issue 



his/her use of the property at hand. In other words, a purchaser does not buy a "right" to 

 an existing regulatory scheme. 



Legitimate use of police power, too, was supported in First English, as it had been 

 earlier in 1987 by the Keystone Bituminous CoaJ case. No property owner has the right to 

 "spillover" onto another's property or to create a nuisance. As litigation in First English 

 proceeds, Los Angeles county wiU likely succeed in proving that it acted reasonably to 

 protect the public health when it prohibited construction of a camp for handicapped children 

 in a floodplain. (Although press reports implied otherwise, the actual taking issue itself has 

 not yet been litigated because of the procedural stance resulting firom the state court's 

 dismissal of the Church's claim.) 



Press reports further created the impression that any delay by government in responding 

 to property owners' proposals or developers' requests for approval would be compensable. 

 In fact, the Court attempted to counter that impression, stating that "normal delays in 

 obtaining building permits, changes in zoning ordinances, variances, and the like" were not 

 being considered by the court, and that "depreciation in value of the property by reason of 

 preliminary activity is not chargeable to the government" and does not "work a taking." 

 Quoting its 1980 A gins decision, the Court reaffirmed that"mere fluctuations in value 

 during the process of government decision-making, absent extraordinary delay, are 

 'incidents of ownership.'" 



3. Equal Protection 



"...nor [shall any state] deny to any person within its jurisdiction the equal protection of 

 the laws..." 



In the context of non-point source control, equal protection requires that a government 

 have a valid reason for treating similarly characterized lands differendy. Parcels of land 

 having similar soils properties, slope, hydrogeological character, proximity to resource 

 areas, and percent impermeable cover, for example, can be regulated differently only if a 

 recreational justification exists. If the parcels are subject to different levels of 

 contamination or adjacent land uses justify a different non-point source management 

 approach on one than on another, for example, a government may regulate the two parcels 

 differendy. If the two owners' parcels involve substantially the same degree of toxic or 

 nutrient loading potential, however, the restrictions imposed should be much the same. 



Communities may apply different tax assessments to erosion-prone properties and those 

 having stable, or stabilized soils. Taxation of erosion-prone lands based on intensity of use 

 might encourage passive use or effective soil conservation practice. Because equal 

 protection does not require rigid equahty of treatment, such a classification could be 

 justified on the grounds that certain uses of erosion-prone soils require greater expenditure 

 of community revenues. (Valuable watershed flood-storage capacity is lost due to sediment 

 accumulation; pubUc works dollars must be spent in maintaining drains, check-dams, and 

 catch basins, etc.) 



A coinmunity's decision to limit its expenditures in certain areas, for example, by 

 limiting availability of sewer service to particular households in a geographical area, may 



' Agins V. City of Tiburon ..447 U.S.255. 



230 



