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<br />]1.23.301 Aull'lO"zedmun,c,pal He. 1007
<br />e/s8Q governmenlS to regulate (19661
<br />CAS 1973. des,gnate(lfloodplaons
<br />'" tl'lrougnzonlng
<br />amentled
<br />2465-101 Created ll'le Colo'atlo Land 5.8.93
<br />erseo Use Comm,ss,on wl'l,ct'!. <1971)
<br />CAS 1973 among otl'lllftasks. was
<br />'" CI'la'gedw,tl'l,dent,fyong
<br />amended 100'yeartloodways.
<br />24-65\' Gave local governmenls HB. 1041
<br />'Ole'seo aull'lonly and 'espons'tlll'ly (1974)
<br />CRS t973. lor'denl'lyongandregvla-
<br />'" t,ng'areasandact'Y'I,es"
<br />amended otSlate,nlerest.'nc1ud,ng
<br /> floodpla,ns. and 'eov"ong
<br /> pe,m'tsfO'deve1opmenl,n
<br /> lheseareas.
<br />24651- Avtt'!o"zedtrleCoto,adO SB. '26
<br />40313) Wale,Conserval,on 6oa'd ,'977,
<br />CRS 1973. toestabhshstandardsand
<br />'" crltenafo,f1oodpla,n
<br />amended stvdles and tOdes,gnate
<br /> suchslvdlesandreouored
<br /> deSlgnallonofsucMsludles
<br /> bytMCOlo,adoWate'
<br /> Conserval,on 80a'dO"0'
<br /> to 1l1a,r use by local gOY-
<br /> ernmenlslo' regulatory
<br /> pu'poses
<br />
<br />~9-2'-J 'Q'
<br />~: seG
<br />CRS 1973
<br />'"
<br />~"e~deo
<br />
<br />O'm
<br />Safety
<br />
<br />37 '3 ~ :04
<br />er5eG
<br />CRS 1973
<br />"
<br />amended
<br />
<br />37.8 ~ ,123
<br />
<br />AuthonzeClioca!gcvern-
<br />r'1enISICP1anforanClregu-
<br />'ate ihe 'Jse of lanCl by
<br />'e9'-"3t"'gdeve'ooment
<br />a"dac<'v,t'es ,r "3lardous
<br />dleas
<br />
<br />EstaO'"l1e1l;,aO",f',pldam
<br />~wners 10' :lamages 'eS~lt
<br />~g ~ '0"" J a '" 'a"ure ~"7COS
<br />-eau"eoa;;p;::,a,:;f-ese'
<br />,0' .:)Ians a~c ,nsoec: ~~
<br />dn(J sUDe"V's'C~ of ~0n.
<br />str~C: CC' tly :ne State
<br />En(i'neer,ea,,,'ed:he
<br />S<a:eEng'neer:oa"l""ally
<br />,1e1e'''' ~e!hea.'TlOuN<)1
<br />",ale',lssalelos10re.ra
<br />-es!,""'O",lo-est"c!s!crage
<br />. 0 . "d! ,afe -31"lou "I. a no ~O
<br />.'<am,nea'ese'Vo'-!.JDon
<br />:omO'a,,,tt"at'1'S;,Jnsa1e
<br />
<br />Reou"eo'''eSlateE''g,-
<br />neerlocomOlle'eooctson
<br />h'ghhazardCams."Cl"
<br />(at'''gtl1eDoss,olee<le''!
<br />c' '~o 00 '''9 ." I nee v e... to. a
<br />preach. a~d to sena Sucn
<br />'eoons:o eaCI'CHY. lOW"
<br />anOCounty,n:"eaffected
<br />area Aequ"edsvcna"ec-
<br />:ed'ocaigOyerrl"enlS10
<br />'ev'ew:he atfecteaareas
<br />~ ttlelrcommun,lyand:o
<br />:Ja y a stan daro ~ee to : h e
<br />Slale Eng<neer 'o'the
<br />'epons
<br />
<br />H 8 ~034
<br />,Ig;<ll
<br />
<br />H 8 '..16
<br />'983'
<br />
<br />Relevant Court Cases
<br />
<br />Three -cases were presented by Kusler et al. in The Law of Floodolain and
<br />Wetlands Cases and Materials as representative of the law of floodplains and
<br />wetlands. These cases are: 1) Morris County Land Improvement Co. v.
<br />Parsipvany- Trov Hills Two; 2) Turnpike Realty Coo, Inc. v. Town of Dedham; and
<br />3) Just v. Marinette County, Although regulation of wetlands does not always
<br />address the same public safety concerns as regulation of floodplains, many of
<br />the legal, administrative, and engineering considerations are similar.
<br />
<br />In the Morris County Land Improvement Co. case of 1963, the landowner
<br />owned a parcel that was part of a large swamp zoned to severely restrict uses on
<br />it, due to its function as a natural detention basin during times of heavy rainfall.
<br />The court ruled that the zoning effectively preserved the land as an open space
<br />for a water.detention basin and that the local government and the public-aHarge
<br />would benefit to the complete detriment of the owner. It was concluded that
<br />such zoning amounted to a "taking" and that if the government sought to acquire
<br />the subject property it should purchase it rather than acquire it through
<br />regulation.
<br />
<br />The court's ruling in the Morris County case was strongly criticized in the case
<br />Usdin v. N,J. Dept. of Environmental Protection_ In that 1980 case the plaintiH's
<br />property was designated as a flood way by the state. Later the owner applied for
<br />a building permit and was told that the state would have to issue approval for
<br />any development. Then refined engineering allowed the state to change the
<br />designation from floodway to flood fringe. The owner asked for damages for the
<br />loss of the use of the land until the redesignation. In ruling on this claim the
<br />court considered the Morris County Land Improvement Co- case and the whole
<br />concept of regulating floodplains to prevent public harm. The decision of the
<br />court was that the plaintiff was entitled to less in damages than requested, that
<br />the regulations were constitutional, and that the M.orris County Land Improve-
<br />ment Co. decision was not an appropriate precedent in this case,
<br />
<br />The Turnpike Realty Co. case of 1972 involved a low piece of property that was
<br />regulated by a floodplain zoning bylaw. The owner attacked the bylaw as
<br />unconstitutional for several reasons. The court ruled that there was evidence
<br />that showed that the land was subject to flooding and that, although there was
<br />evidence that "there was a substantial diminution in value," there was not con-
<br />clusive evidence of an unconstitutional taking.
<br />
<br />The Just case of 1912 involved a piece of property next to a lake, subject to
<br />county shoreland and wetland regulations. The owner, without obtaining a per-
<br />mit, filled in part of the property with sandy material.When the county charged
<br />him with a violation, the owner challenged the regulations as unconstitutional.
<br />The court held that the regulations were constitutional, that the subject property
<br />constituted wetlands, and that it was constitutional to prohibit filling of wetlands_
<br />
<br />10
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