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Thread: Open Space Dispute

  1. #1
    Cyburbian SlaveToTheGrind's avatar
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    Open Space Dispute

    This is in today's paper. Dispute of an open space designation and a taking without just compensation.

    Link

  2. #2
    Cyburbian Emeritus Chet's avatar
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    Interesting. *disclaimer I'm not an attorney*

    If they didnt receive notice they have a case, but not as a taking -- rather as a violation of their due process rights.

  3. #3
    Cyburbian donk's avatar
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    Originally posted by Chet
    Interesting. *disclaimer I'm not an attorney*

    If they didnt receive notice they have a case, but not as a taking -- rather as a violation of their due process rights.
    ??

    In our system there is no requirement for the notification of each individual property owner. By doing the required advertising and public meetings we are deemed to have notified all interested parties.

    I find it interesting that the person who wants to buy the land has an injunction to prevent the sale of the land. As always there has to be more to the story, too bad we don't have anyone here for the dirt.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  4. #4
    Unfrozen Caveman Planner mendelman's avatar
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    sounds tricky

    You have to balance the environmental impact to the riparian area as it relates to the community, while also dealing with the politics of the partial takings.

    Is the muni. going to purchase the property from the owners to preserve it as a park?

    Ultimatley, it sounds like the property owner will lose out. Especially if the muni. can find a copy of the notification letter sent to the owner (if required)

    Off-topic:
    Also, I really dislike the term 'open space'. It is sooooo vague that it really means nothing. A Wal-Mart parking lot is 'open space' too.

  5. #5
    Cyburbian Cardinal's avatar
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    Several things stick out to me. Rezoning mapped floodplain to residential makes no sense. If the owners are not willing to pony up the cash to do a delineation of the floodplain, then they have to accept it as mapped. That would allow the construction of one new house (potentially). If the buyer doesn't like that, too bad.

    There are other people willing to purchase the land, but the current buyer has a contract. If she can't build the three homes she wants, she needs to decide to build just one, or maybe none. If she is not willing to accept those terms, she needs to take a hike. That contract to sell should also have certain requirements (such as that the property be rezoned, etc.). If those conditions can't be met, then the buyer has the choice of purchasing it anyway, or dropping it. She can't hold up the sale indefinitely. The last thought is that the contract should have a date by which certain actions must be taken, or the contract is no longer valid.

    It isn't really all that big of a problem. The only thing that needs to be dealt with is the buyer.

  6. #6
    Cyburbian Emeritus Chet's avatar
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    Originally posted by donk
    In our system there is no requirement for the notification of each individual property owner. By doing the required advertising and public meetings we are deemed to have notified all interested parties.
    It varies state to state, but point being if the city messed up the process, it may be reviewed in certiorari and remanded.

    Recent court ruling would indicate that this case is not a
    compensible taking unless all value and use was removed from the property. That doesnt's seem to be the case.

  7. #7
    Cyburbian donk's avatar
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    Chet, same here on process, but it never happens. Once your By-law has been challenged and you win the Judge won't hear another case until the By-law is amended in a mannner that directly affects your property.

    While we don't have "takings" to the same degree that you folks do, we have had a recent appeal decision state that limiting/refusing the placement of a structure on a property due to required setbacks for environmental reasons is not a "hardship" (as defined by our Act and previous decisons) and does not remove the persons ability to enjoy the land. ie If they want to have a picnic and enjoy the river they can, just don't put up a cottage.

    So in this case (from the article and without a good site plan), the property owners can have their home and maybe sell a lot or two, but they'll end up with big backyards to protect the flood plain.

    If it is rezoned and the land floods, what do you think is the likelihood of the owners sueing the municipality?

    BTW, this is one area of American Planning law that fascinates me.
    Last edited by donk; 18 Nov 2003 at 2:16 PM.
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

  8. #8
    Cyburbian Emeritus Chet's avatar
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    Originally posted by donk
    BTW, this is one area of American Planning law that fascinates me.
    Its mostly supreme court case law we draw from, there is very little consistency from state to state otherwise.

  9. #9
    Member Wulf9's avatar
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    In general, the Supreme Court decisions have determined that a "taking" requires the taking of nearly all value and leaving the property without any use of the land. Obviously this land has a $1 million value and use as a single family house.

    Based on past decisions, this is not a taking.

  10. #10
    Cyburbian H's avatar
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    Definitely not a taking.

    Sure the value may be less to the buyer because you can not fill it full of homes, but this could also apply to a house zoned residential where the buyer wants if for commercial.

    If this is a taking, then ALL zoning is a taking.
    "Those who plan do better than those who do not plan, even though they rarely stick to their plan." - Winston Churchill

  11. #11
    Forums Administrator & Gallery Moderator NHPlanner's avatar
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    Originally posted by H
    If this is a taking, then ALL zoning is a taking.
    You've just summed up the entire rationale of the Wise Use Movement.
    "Growth is inevitable and desirable, but destruction of community character is not. The question is not whether your part of the world is going to change. The question is how." -- Edward T. McMahon, The Conservation Fund

  12. #12
    I'm with Cardinal I don't beleive that the buyer did her due diligence before making an accepted offer and now she's got everyone scurrying around to get her butt out of the sling.

    OT to mendelman: We call our open spaces by their purpose (steep slope or flood plain). Yes, we have steep slopes in southern Indiana.
    On pitching to Stan Musial:
    "Once he timed your fastball, your infielders were in jeopardy."
    Warren Spahn

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    Cyburbian tsc's avatar
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    I don't know the process out there... but they would be SOL here... as when the whole town goes through a rezoning.... each individual property owner is not notified.... but many public hearings are held regarding the whole process. It sounds like the property can't be extensively developed anyway...
    "Yeehaw!" is not a foreign policy

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  14. #14
    Member Cullen's avatar
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    it seems like something was taken from them even if this is not a specific taking action. How could they not have known that their land was being rezoned. I think that a little announcement in the newspaper isn't enough. must one be expected to read these all the time in case your land is going to be rezoned? Even a letter could be missed. Maybe there could be some sort of procedure where the land owners have a say and agree to the zoning change, or at least where the change is explained to them and it is explained that the value of their property could rise or fall significantly.

    hmm

  15. #15
    Cyburbian donk's avatar
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    Originally posted by Cullen
    Maybe there could be some sort of procedure where the land owners have a say and agree to the zoning change, or at least where the change is explained to them and it is explained that the value of their property could rise or fall significantly.

    hmm
    [rant]

    Not to be too harse, but ...

    That is what the add in the newspaper is typically for, open house /presentation/hearing, come see the plan, comment on it, tell us your opinion, we'll tell you what it means, consider your comments and take the appropriate/consistent action.

    When we redid our plan we had 300-400 changes needed, the last thing I am going to do is go and knock on everyone's door to tell them of the change.

    As a property owner and citizen it is your responsibility to pay some attention to the local news and paper. If from what I read in the article the property was rezoned during a comprehensive review I am pretty sure that the public was informed in various ways and at various times that changes would be made.

    My favourite comment at a public meeting is when a person gets up and says "I had no idea this meeting was happening".

    [/rant]
    Too lazy to beat myself up for being to lazy to beat myself up for being too lazy to... well you get the point....

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