The Taking Issue 



controls, maintenance, land acquisition, and regulatory enforcement Because a 

 community's provision of infrastructure (such as sewer extensions) may create new 

 non-point problems associated with development while addressing other non-point 

 control needs (such as ISDS-related groundwater contamination), the power not to 

 spend may also provide significant leverage in approaching non-point source 

 issues. 



• Acquisition powers; providing communities with the authority to purchase or 

 condemn complete parcels of land, to arrange for easements or lirnited rights on 

 land, and to guarantee necessary access where public health and welfare issues may 

 dictate 



Constraints on Exercise of Community Powers 



The scope of community powers are primarily constrained by constitutional doctrines, 

 by the sources of those doctrines, and by judicial interpretations of each. Key limitations 

 and problems should be considered in evaluating constraints to local powers. 



Constitutional Limitations 



1. Due Process 



"... nor shall any state deprive any person of life, liberty, or property without due 

 process of law." 



The constitutional guarantee of due process requires that a community rationally and not 

 imreasonably exercise its powers, as reflected by the end results sought by the community 

 and by the means which it uses to achieve its ends. Due process requires a government 

 action to be wiUun die limits of that body's powers and for proper objectives. To satisfy 

 due process, there must be a valid connection between the regulatory action and 

 accomplishment of the stated objective. Restrictions imposed must not be arbitrary. 



Since a community can use only those powers which are legally vested in it, the breadth 

 and source of power available must be defined. Courts establish clarification of the source 

 of local power in order to determine a power's proper objectives. In Rhode Island, where 

 home-rule is fairly weak, localities are creatures of state and have only the powers that are 

 granted to them by the General Assembly. Nevertheless, existing statutes provide 

 sufficient authority for municipal adoption of zoning, subdivision, and building codes, and 

 other regtilatory strategies for protection of flood hazard areas and community water 

 supplies. Where specific enabling legislation is passed which augments home rule power, 

 additional support is provided for the adoption of local regulations having broader 

 objectives. 



Having determined the source of power, it is necessary to establish validity of purpose. 

 Acquisition, spending, and taxing powers, if granted, may be broadly used to approach 

 non-point source control objectives. More significant limitations may be placed on 

 regulatory objectives, which must be grounded in the community's police power, that is, 

 the community's power to promote and protect the public health, safety, and general 



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