The Taking Issue 



4. Where the state or local government has acted in the police power to protect the public 

 health, safety or welfare and where a close question is presented, the courts should give the 

 benefit of the doubt to the state or local decision. 



5. In all instances where an act or regulation of state or local government is challenged as 

 excessive, the courts should presume the validity of such act or regulation, which 

 presumption may only be overcome by a party challenging it by clear and convincing 

 evidence. 



6. Where a local or state government has determined that an act or regulation is necessary 

 to protect the public or the environment, a court should not hold to the contrary absent a 

 showing that such determination is arbitrary and capricious. 



Conclusions: Factors Strengthening Government Powers 



Numerous methods exist enabling governments to avoid limitations, or increase 

 available powers. These concepts cannot ensure judicial acceptance in all cases, because 

 powers differ among governments, as do courts' interpretations of them. Although 

 limitations must be seriously considered, the following methods have been found to 

 strengthen legitimate exercise of authority: 



1 . Government actions are strengthened if components of a local, regional, state, or federal 

 program. A plan provides a broadened base for the government action, demonstrates 

 reasonableness, and negates claims of arbitrariness or unfairness. Increased weight may be 

 attached to the individual government action. In the Del Norte c ase ^. for example, the 

 county enacted its regulations in compUance with an Army Corps of Engineers plan. In 

 reviewing the action, the court therefore attached additional significance to the program and 

 accorded a strong presumption of validity to the action. 



Similarly, In Candlestick Properties. ^ the denial of a permit to fill a parcel of land 

 submerged by high-tide waters of San Francisco Bay was based in large part on 

 compliance with the regional plan to preserve the Bay and prevent haphazard fill activities. 

 The Coun upheld the regional approach. State policy represented by a state legislative 

 program gives strength to the poUce powers of a region or locality. 



2. To strengthen police power authority, regulations should emphasize the protection of 

 human health, safety, and welfare, especially the first two of these where applicable. 

 Linkages between protection of natural resource values and protection of human welfare 

 should be strongly established in statements of purpose. (New Jersey, for example, has 

 emphasized human welfare protection in implementation of its strict coastal land use 

 restrictions.) 



Courts have, however, supp)orted land use regulations that address protection of 

 environmentally significant values. Protection of wetiands, water quality, and floodplain 



' Turner v. County of Del Norte . 101 Cal. Rptr. 93 (1972) 



Candlestick Properties. Inc. v. San Francisco Bav Conservation and Development Commission . 89 Cal. 



Rptr. 897, 905 (1970) (citations omitted) 



236 



