The Taking Issue 



welfare. "General welfare" encompasses the protection of the social, economic, physical, 

 and political well-being of the community. '■ 



All non-point source control regulations must have police power objectives, generally 

 defined to include: 



1. Minimizing dangers to public safety by controlling land uses which harm others; 



2. Preventing fraud and providing citizens with the ability to make informed choices 

 when purchasing property; and 



3. Reducing community expenditures, and in particular, protecting the public purse 

 fi-om future demands for relief. 



To illustrate, a community may use overlay zoning to restrict subdivision development 

 within an area of high water table soils where multiple ISDS failures have occurred. Such 

 a mechanism promotes the legitimate end of controlling development (which may harm 

 others due to resultant ISDS overflows or aquifer contamination). Such a measure may 

 also reduce expenditures, in that continued development of such an area beyond its capacity 

 to assimilate waste would create a public health hazard likely necessitating extension of 

 town sewer facilities. Similarly, regulations may require the disclosure of information on 

 deeds that, for example, an ISDS is sub-standard, or that a property is located within a 

 floodplain and thus subject to high water table or flood inundation. Such disclosure 

 provisions enable a potential buyer to evaluate whether he or she is willing to assume the 

 risks which purchase entails. 



Potential public health risk gives broad scope to a community's poUce power. Since 

 many noii-point source pollutants can represent significant health risks, controls imposed 

 can generally be demonstrated to meet the means tests of due process: that the means are 

 rationally related to accomplishment of the regulatory objective, and are not arbitrary. 



The interpretation of the term "arbitrary" is of key importance. In the context of due 

 process, local governments base their actions on a generally accepted level of evidence in 

 order to ensure that they are comporting with due process. However, due process does not 

 require unequivocal site-specific scientific evidence, and should not; much emerging 

 scientific data of key importance in assessing risk remains subject to uncertainty. Due 

 process does require that a "rational basis" be established between available information 

 and the policy choices made by elected officials (Godschalk et al., 1977). 



Actions of a government related to exercise of poUce power are generally given a strong 

 presumption of validity and constitutionality. 2 

 As articulated in Parker , for example: 



"...the settied rule seems to be that the court will not substitute its 

 judgement for that of the...body charged with the primary duty and 

 responsibihty of determining whether its action is in the interest of the 

 pubUc health, safety, morals, or general welfare. "^ 



^ Dav-Bright Lighting. Inc. v. Missouri . 342 U.S. 421 (1952) 

 ^Villa ge of Euclid v. Amhler Realty Co.. 272 U.S. 365 (1926) 

 3 ln re Anneal of Parker . 197 S.E. 706,709 (N.C. 1938) 



226 



