Thursday, April 14, 2011
We covered non-conforming uses in class today, specifically the AVR, Inc. v. City of St. Louis Park case. My students, having read Lucas in Constitutional Law a few weeks ago, posited that a rezoning would not constitute a regulatory taking. I disagreed. My argument (and please consider that I have not studied Constitutional Law since 1999) is that if: (1) a municipality changes the zoning of an improved parcel of land (for example, rezones land occupied by a ready cement plant as residential); (2) the re-zoning diminishes the value of the underlying real estate; and (3) the municipality forces a change in use; then a compensable regulatory taking has occurred.
Based on approximately 20 minutes of research, I can't find any cases where this has occurred. I posit that this is because states either: (1) protect lawful nonconforming uses, thus preventing the above scenario from occuring frequently enough for me to easily locate a case; or (2) have adopted amortization periods, which are predicated on the idea that the value of the use will fully amortize over a certain period of time, so that when the prior lawful use is brought to an end, there is no loss to be compensated.
I think that my conclusion is consistent with Penn Central. If there is a lawful nonconforming use, then the owner had an investment-backed expectations in that use. If the government cuts short that use, then there is a compensable taking.
I am sure someone has written a brilliant article on this topic that I have not yet found. Any references to said article or other feedback would be much appreciated.
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