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<br /> ■{/`. § 8.03[2 ZONING ANA L,atv�b USE CONTROLS 8-52 ",.`
<br /> If the residual FAR restrictions become so stringent that the
<br /> developer cannot properly use his property for any reasonable
<br /> purpose,12 a challenge on the ground of an unconstitutional taking ,
<br /> fourteen from the pre-existing range of sixteen to twenty.See§8.O212J supra. This
<br /> tr particular reduction in the residual FAR would not appear to be so excessive as to
<br /> }` open the way for a successful court challenge. See Benson, "Bonus or Incentive
<br /> Zoning—Legal Implications," 21 Syracuse L Rev 895, 897(1970). .
<br /> 12 The Fifth Amendment to the United States Constitution states that"private
<br /> ' (shall not] be taken for public use, without just compensation." U.S.
<br /> property ] Pu
<br /> 't' Coast.,Amend. V. •
<br /> 4
<br /> A"taking"may result when restrictions on a landowner's free use and enjoyment
<br /> of his property are sufficient to amount to a"confiscation"of his property. See 2
<br /> . Nichols On Eminent Domain. § 6.1(1].(Matthew Bender & Co). If a taking is
<br /> involved,due process requires that compensation be paid to the property owner.See
<br /> Pennsylvania Coal Co v.Mahon,260 US 391-415,43 S Ct 158,67 L Ed 322(1922).
<br /> Among the standards that have been devised by the courts to distinguish between .
<br /> ' valid police power regulation(including zoning)which requires no compensation,
<br /> ' and a taking of property for which compensation must be paid,are the"physical
<br /> invasion" test, the "noxious use" test, the "diminution in value" test and the •
<br /> "arbitral-enterprise"test.See Sax,"Takings and the Police Power,"74 Yale L J 36
<br /> • (1964).
<br /> 4
<br /> The"physical invasion"test requires compensation when the government takes
<br /> _
<br /> physical possession of affected premises,See, e.g, Transportation Co v. Chicago,
<br /> *'€j • 99 US 635,.98 S Ct 635,25 L Ed 336(1878). •
<br /> Under the"noxious use"test,the court examines the nature of the property use
<br /> - which is limited by a governmental regulation.If the affected use is deemed prejudi-
<br /> cial to public health,safety and morals the government may validly regulate it,and
<br /> '_ . any resulting decrease in value is-not compensable.See, e.g. Hadacheck v. Sebas-
<br /> tiara.239 US 394, 36.S Ct 143(1915)(the state without payment of compensation
<br /> may prohibit the operation of a brickyard in a residential neighborhood on the •grounds the yard is offensive to public health). Under a corollary test,however,if
<br /> the purpose of the regulation is to secure some benefit for the entire community at
<br /> the expense of the landowners rather than to prevent a nuisance,there is a taking.
<br /> • See, cg., State v. Johnson, 265 A2d 711, 716 (Me 1970); Morris County Land
<br /> • Improvement Co.v.Township of Parsippany-Troy Hills,40 NJ 539,554-556, 193
<br /> - A2d 232,241-242 (1963).
<br /> s
<br /> • The standard most often used to distinguish a taking from valid regulation under
<br /> '$ the zoning power is the"diminution in value"test.No compensation is required if
<br /> I. the value of existing property is diminished somewhat by government regulation. •
<br /> If there is a substantial reduction in value,however,compensation must be made. .
<br /> `' - See Pennsylvania Coal Co.v. Mahon supra. A recent modification of this test has
<br /> .
<br /> limited the original rule. Under the new approach, where the regulation seeks to •
<br /> preserve the status quo rather than to improve the public condition,the impact upon
<br /> • the value of the land for its potential use does not constitute a taking.See,e.g.. Just .
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