The Taking Issue 



endanger the public health through the water supply, for example, will show that a potential 

 nuisance is being responsibly regulated. 



The control of nuisance places a conimunity's use of police power in its strongest 

 position with respect to takings and due process. Regulations directiy protecting health and 

 safety have long resisted takings accusations, receiving broad judicial support. 



In evaluating reasonable use and diminution of value, courts operate from the premise 

 that all economic use of an owner's land cannot be precluded by government action. The 

 balancing test used in reasonable use assessments involves weighing the impact of the 

 regulatory action on the individual or on the potential overall use of the property, as against 

 the importance of the community interest. "Community interest" considerations include the 

 likelihood of the harm the government is seeking to prevent, the immediacy of its threat, 

 and the potential severity and scope of the harm. 



Establishing a Taking 



Many takings cases turn on the complex issues involved in establishing reasonable 

 expectations for property us so as to establish the point where potential economic use ends 

 and a taking begins. This issue has been complicated by recent cases, which have 

 considered land as a collection of "parcels," involving separate ownership expectation. 

 Some early floodplain management cases, however, illustrate longstanding themes. In the 

 Doolev c ase, testimony showed that the land use restrictions imposed had depreciated the 

 value of the complainant's land by at least 75 percent, and the court concluded that the 

 burden imposed on the property owner was unfair. 



The case of Turnpike Realtv v. Town of Dedham ^. in contrast, resulted in strong 

 affirmation for a well-supported zoning change. Although the realty company had shown 

 that the regulation had reduced the value of its land from $431,000 to $53,000, Dedham 

 had formally included the riparian property in a zoning revision from residential to 

 floodplain district While the revision effectively prohibited construction of any permanent 

 structures, the court found that no taking had occurted. The decision was partially based 

 on a United States Supreme Court case ^ which had held that a particular regulation which 

 diminished the value of property by over 90 percent was not a taking. 



Although the disparity of ruling in these cases can partially be accounted for by 

 differences among courts and time periods, other factors support the distinction between 

 outcomes. The community of Dedham in Turnpike Realty fully stated the purpose for its 

 action within the regulation itself: 



The purpose of the Flood Plain District is to preserve and maintain the 

 ground water table; to protect the public health and safety, persons and 

 property against the hazards of flood water inundation; for the protection of 

 the community against the costs which may be incurred when unsuitable 

 development occurs in swamps, marshes, along water courses, or in areas 



i Tumoike Realtv v. Town of Dedham . 384 N.E. 2d 809 (Mass. 1972) 

 ^ Hadacheck v. Sebastian . 239 U.S. 394 (1915) 



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