Thursday, November 8, 2007

Meshing common law, statutes, and the constitution …

  It’s been nearly a century since statutory law began to supplant common law as the chief source of land use regulation.  But the old concepts still pop up once in a while.  In an interesting decision this week, the Missouri Court of Appeals upheld the application of a county ordinance that requires companies that store certain inventory outdoors to have fences around their properties.  (St. Chas. County v. St. Chas. Sign & Elec., Inc., No. ED89506 (Mo. Ct. App. Nov. 6, 2007)).  This doesn’t sound too revolutionary.  But what’s intriguing is that the trial court had struck down the application on the ground that ordinance Missouri in effect declared all such outdoor storage a nuisance, which was too broad a conclusion.  The Court of Appeals made clear that the ordinance did not declare such land use a nuisance, but rather that it was merely a potential nuisance; the law was a justified use of the police power to avoid unsightliness and potential hazards to the public.

  So everything is straight now, right?  Well, the appellate court concluded by stating that the ordinance also was not a regulatory taking because it is “a valid exercise of the police power.”  Hmmm … maybe the meshing of different strands of law isn’t so clear.  The Missouri courts haven’t helped, through precedent stating that a regulation constitutes a taking when it “goes too far.”  988 S.W.2d at 106.  Gee, I wonder where this unhelpful test came from?

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