Thursday, November 8, 2007
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 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?
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Stephen Miller on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Josh Galperin on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jesse Richardson on New Arkansas law requires local governments to pay for a "takings" where certain "regulatory programs" reduce FMV by at least 20 percent
- Jamie Baker Roskie on Uber Goes to the State House Seeking Preemption of Local Government Control
- Stephen R. Miller on Why are building inspectors so often on the take?
- Can UberPOOL Make Carpooling Cool?
- Are Earth Day cookies an endangered species?
- Fordham Urban Law Center's Sharing Economy | Sharing City Conference - April 24
- Land Use, Telescopes and Sacred Land in Paradise
- Tekle on Percent-for-Art Ordinances