The Taking Issue 



areas have been recognized as valid police power objectives. A Maryland case upholding 

 exercise of police power in wetiands protection, for example, resulted in a ruling which 

 emphasized ecological values: 



"A valid exercise of the police powers...for the state to preserve its 

 exhaustible natural resources. The current trend is to consider the 

 preservation of natural resources as a valid exercise of the police powers." ^ 



3. Clear and detailed statements of purpose and findings of fact will strengthen the 

 presumption in favor of the community action and enable a court to better understand and 

 uphold it Convincing evidence of the range of public hazards created by damage to or 

 destruction of aquifer recharge areas, wetiands, floodplains, etc. should be insened in 

 "whereas" clauses and policy statements, along with inventories and clear classifications of 

 the areas at issue. Particularly when balancing or more subjective judicial tests are used in 

 evaluating a challenge to a government action, courts accord weight to clear statements of 

 purpose and detailed findings of fact (Conservation Foundation^^EMA, 1980). 



4. Mapping procedures should provide opportunity for landowners to prove a regulatory 

 map's inaccuracy, given cause. 



5. Careful and thorough drafting to permit cluster development in suitable areas or to target 

 development toward areas consistent with the purposes of resource protection will lessen 

 the likelihood of successful challenge. All profitable uses of property that will not create or 

 aggravate damages to natural resources should be allowed. Creative economic uses 

 compatible with resource protection should be encouraged. That is, the range of permitted 

 activities should be maximized in order to minimize the taking issue. All potentially 

 impacting activities, however, should be subject to permit review. No major uses should 

 be exempted per se. 



6. If variance procedures are to be provided as a hedge against the taking issue, clear and 

 firm criteria for all types of variances, special exceptions, and variations should be set. 

 Hearings should be held and written findings presented to describe to the public how 

 variance criteria would be met. Variance-granting procedures should be as publicly visible 

 as possible, in order to ensure complete accountability. 



7. Similarly, permit reviews should be conducted with careful attention to procedural "due 

 process." Notification of requirements, deadlines, etc. should be ensured for the applicant 

 and the public, and procedural steps should be published as public notices to avoid 

 implication that any result has been predetermined. 



8. The manner in which regulatory strictures are linked is fi^uentiy very important in 

 successful implementation. Specific construction standards and performance standards 

 should be provided, to ensure clarity regarding what procedures an appHcant must 

 undertake and how they are supposed to work. Performance standards (e.g. prevent 

 siltation) without construction stipulations are excessively vague, while construction 

 standards alone allow an applicant to ignore the failure of a particular pollution control 

 measure. 



Potomac Sand and Gravel Co. v. Governor of Maryland . 293 A.2d 241, 248^249 (1972) 



237 



