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<br />-11- <br /> <br />. <br /> <br />construction of flood control works. Ordinances which "freeze" <br />virtually all new development in the floodplain are the most <br />common interim approach. These are typically based upon unquanti- <br />fi ed flood or wetl and data i nc 1 udi ng, in some cases, "eyeball" <br />estimates of floodplain or wetland boundaries. Alternatively, they <br />may freeze development within a specified distance of a stream such <br />as one hundred feet, or below a given elevation. <br />Moratoria of several months to a year in duration probably will <br />likely be upheld, if the objective is to improve the community's <br />ability to cope with floods. (See Chapter 17.) <br /> <br />. <br /> <br />21. Q. What is an unconstitutional "taking"? <br />A. The Fifth Amendment of the U.S. Constitution and similar pro- <br />hibitions in state constitutions prohibit ". . . taking of private <br />property for public use without just compensation." Courts have <br />uniformly held that if private land is seized for actual use by the <br />public, as for a park, school site or parking lot, the owner is <br />entitled to compensation. A harder question arises where the public <br />does not seek to "use" the pri vate 1 and but 1 imits the owner's <br />use of it through land use regulations. No simple test is applied <br />by the courts and a determination of taking is often related to <br />issues of discrimination and reasonableness. <br />More than 100 state and federal court floodplain and wetland <br />opinions have attempted to define how far public regulations can <br />go in restricting the owner's use of his land. All courts agree that <br />regulations may somewhat reduce the value of property without un- <br />constitutionally "taking" such property. Where the site has been <br />flooded, courts have almost invariably since 1970 upheld public <br />floodplain regulations against "taking" challenges even where the_ <br />regulations limit uses to agriculture, forestry and open space uses. <br />Wetland regulations have also been widely upheld in recent years <br />although decisions are less uniform. The most important factor is <br />whether a property owner is allowed to make some economic use of <br /> <br />. <br /> <br />~ t; '; UP;)-'" ii, ,,," <br />1._' ...-) <br />W Y\JS .uv'f\. \' UJ)J \: ' <br /> <br />, <br />;-.R"'-'~;' .~;) ~_t <br />Ur i~') ~ 1\\11 J Uf1M <br /> <br />t . <br />jJIhJC~ Pi <br /> <br />1w,n r~. <br />