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8-53 INCENTIVE ZONING § 8.03[21
<br /> may arise.t3 An attack on such grounds may, however, be difficult
<br /> to sustain. As a general rule, the mere showing of a diminution in
<br /> v.Marinette County, 56 Wis 2d 7,201 NW2d 761(1972)(no taking found where
<br /> shoreland zoning ordinance forbade landowners from placing fill on their wetland
<br /> property without a conditional use permit).
<br /> Under the "arbitral-enterprise test (see Sax, supra at 62-63), when the state
<br /> resolves disputes between competing private parties in its arbitral capacity, any
<br /> resulting decrease in value of the landowner's property requires no compensation.
<br /> i On the other hand, when the govertument uses private resources for the public
<br /> benefit, it acts in its enterprise capacity, and must compensate the owner for the
<br /> taking.See,ag.Morris County,Land Improvement Co.supra, where the township
<br /> restricted use of plaintiff's land to public recreational,wildlife sanctuary,and sewage
<br /> treatment plant uses.Since the regulated properties had been added to the govern-
<br /> • ment's resources in several.of its enterprise categories, there was a taking.
<br /> For a detailed treatment of the taking issue in the context of zoning and land use
<br /> controls,see Part V infra
<br /> 13 See Arverne Bay Construction Co. v. Thatcher,278 NY 222, 15 NE2d 587,
<br /> 117 ALR 1110(1938).To sustain an attack upon the validity of a zoning ordinance,
<br /> •
<br /> an aggrieved property owner must show that enforcement of the ordinance and its
<br /> restrictions would preclude the use of the property for any purpose to which it is •
<br /> reasonably adapted.
<br /> - For similar holdings,see:
<br /> California:Mid-Way Cabinet Mfg.Co.v.County of San Joaquin,257 Cal App2d
<br /> 181, 65 Cal Rptr 37(1967).
<br /> Connecticut Vartelas v.Water Resources Comm'n, 146 Conn 650, 153 A2d 822
<br /> (1959):
<br /> Idaho:Ruark v. City of Caldwell, 87 Idaho 557, 394 P2d 641 (1964).
<br /> y• Indiana:Indiana Toll Road Comm'n v.Jankovich,244 Ind 574, 193 NE2c1 237
<br /> (1963), app dism'd 379 US 487 (1965). •
<br /> Masmchusettr Campbell v. City of Boston,290 Mass 427, 195 NE 802'0935).
<br /> Missouri Bellerive Inv.Co.v. Kansas City, 321 Mo 969, 13 SW2d 628 (1929).
<br /> Oklahoma:Phillips Petroleum Co.v.Corp.Comm'n,312 P2d 916(Okla 1957).
<br /> Pennsylvania:Valley Hills Civic Ass'n v.Bd.of Adjustment,414 Pa 367,200 A2d
<br /> 408(1964).
<br /> Washington: Ackerman v. Port of Seattle, 55 Wash2d 400, 348 P2d 664, 77
<br /> ALR2d 1344(1960). •
<br /> i I Also,see Benson,"Bonus or Incentive Zoning—Legal Implications,"21 Syracuse
<br /> i I L Rev 895, 897(1970), where the author quotes from Professor Mandelker who,
<br /> at a Zoning Conference at the New School for Social Research,May 15-17, 1969,
<br /> commented that:
<br /> "flihe more the residual zone is.away from what ought to be on the spot,I think
<br /> the greater opportunity there is going to be for a successful attack on the underly-
<br /> ing residual zone....[Ms the project moves along at the much higher densities
<br /> or intensities..-. the underlying residual zoning, I think,will become more and
<br /> more open to attack."
<br /> (Zoning Law)
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