Agenda - 11-25-1985 - Laserfiche WebLink

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C' § 8.03[2] ZONING AND LAND USE CONTROLS• 8-52 • If the residual FAR restrictions become so stringent that the developer cannot properly use his property for any reasonable purpose,72 a challenge on the ground of an unconstitutional taking fourteen from the pre-existing range of sixteen to twenty.See§8.02[2]supra This particular reduction in the residual FAR would not appear to be so excessive as to open the way for a successful court challenge. See Benson, "Bonus or Incentive Zoning—Legal Implications," 21 Syracuse L Rev 895. 897 (1970). 121"he Fifth Amendment to the United States Constitution states that"private property [shall not] be taken for public use, without just compensation." U.S. Conn.,Amend. V. A"taking"may result when restrictions on a landowner's free use and enjoyment of his property are sufficient to amount to a"confiscation"of his property. See 2 Nichols On Eminent Domain § 6.1(1].(Matthew Bender & Co). If a taking is involved,due process requires that compensation be paid to the property owner.See Pennsylvania Coal Co v.Mahon,260 US 393;415,43 S Ct 158,67 L Ed 322(1922). • Among the standards that have been devised by the courts to distinguish between valid police power regulation(including zoning)which requires no compensation, • and a taking of property for which compensation must be paid,are the"physical invasion" test, the "noxious use" test, the "diminution in value" test and the - "arbitral-enterprise"test.See Sax,"Takings and the Police Power,"74 Yale L J 36 (1964). The"physical invasion"test requires compensation when the government takes .; - physical possession of affected premises.See, e.g. Transportation Co v.Chicago, 99 US 635, 98 S Ct 635, 25 L Ed 336(1878). Under the"noxious use"test,the court examines the nature of the property use which is limited by a governmental regulation.If the affected use is deemed prejudi- cial to public health,safety and morals the government may validly regulate it,and • any resulting decrease in value is not compassable. See. eg:, Hadacheck v.Sebes- tian,239 US 394,36 S Ct 143(1915)(the state without payment of compensation - 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 the purpose of the regulation is to secure some benefit for the entire community at the expense of the landowners rather than to prevent a nui'arc".,there is a taking. See, a&, State v. Johnson, 265 A2d 711, 716 (Me 1970); Morris County Land Improvement Co.v.Township of Parsippany-Troy Hills,40 NJ 539,554-556, 193 A2d 232,241-242(1963). The standard most often used to distinguish a taking from valid regulation under the zoning power is the"diminution in value"test.No compensation is required if g po pensa req the value of existing property is diminished somewhat by government regulation. xs If there is a substantial reduction in value,however,compensation must be made. See Pennsylvania Coal Co.v.Mahon supra. A recent modification of this test has limited the original rule. Under the new approach, where rite regulation seeks to preserve the status quo rather than to improve the public condition,the impact upon y`. the value of the land for its potential use does not constitute a taking.See,eg.. Just • r. .. _ . .. _ .. . _ .