02-22-1977 Planning Packet - Laserfiche WebLink

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Wks.J201 NORTH \V£ST£RN R£PORT£R, 2d SERIES .uiu.nal.lc nuisance hy the creation ui ‘Mlors which make occii|iation of plaintiffs’ farm inconvcmeni . . . and impair its value. It cannot he said that defendant has dispossessed.plaintiffs or taken their prou- ertv.” The Justs rely on several ca.ses from oth er jurisdictions which have held zoning rcKiil.itions invulviiif' flood plain districts, flood hasins and wetlands to he so confisca tory as to amoniit to u takmn hecaiisc the owners of the land were prevented from improvinji such property f«»r residential or commercial purposes. While some of these ca.ses may he distiiiKiiishcd on their facts, it is douhtfni whether these difterences j^o to the basic rationale which permeates the decision that an owner has a riK'ht to use his property in any way and for any puri>osc he sees fit. In Dooley v. Town Plan A Zon. Com. of Town of I’airfield (1964). I.*;! (..oiin. 304, 197 A.2d 770, the court held the restriction on land located in a floo.l plain ilistrict prevented its heiiifj u.sed for resi dential or hnsiness purposes and thus the restriction destroyed the economie value to the owner. The court recognized the land was needed for a pnhlic purpose as it was part of the area in which the tulal stream overflowed when ahnormally IiikIi tides e.xisted, hut the property was half a mile from the ocean and therefore could not he used for marina or hoathouse pur poses. In Morris County Land I. c.o. v. Parsippany-Troy Hills Tp. (196.1), 40 N'.J. .’’39, PM A.2d 2.U. a flood hasin znniii); ordi nance was involved which rccpiired the con- troversial land to he retained in its n.ttural st.ite. I he plaintiff owned f>6 acres of a l..>00-acre swamp which was part of a river hasin and acted as a natural detention hasin for flood waters in times of very heavy rainfall. There was an e.xtrancous i.s.sue that the freeziiij; re^nilations were intended as a stop-Kap until such time as the govern ment would hny the property under a flood- control project. However, the court took the view the zoning: had an effect of jire- servinj; the land as .an open space as a water-detention basin and only the Koverti- ment or the piihhc would l»c benefited, to the complete dama};e of the owner. In State v. Johnson (1970), Me., 265 A.2d 711, the Wetlands Act restricted the altera tion and use of certain wetlands without permission, i he act was a conservation measure enacted under the imlice power to protect the ccolo);> of areas liorderinj; the co.istal waters. The plaintiff owned a small tract of a salt-w.iter marsh which was flooded at luTdi tide. Hy filling, the l.uid would op adapted for building ptir- |K)Scs. The court held the re.strictions against filling constituted a deprivation of a reasonable use of the owner's property and. thus, an imrcasonalilc c.xcrcise of the police power. In .MaeCoblKm v. Hoard of Appeals of Diixbury (1970), .^56 .Mass. 6.^3, 2.I.'' N.K.2d .H7, the plaintiff owned seven acres of land which were under water about iwice a month in a shorrlaml area. He was denied a permit to e.xcavatc and fill jiart of his property The purpose of the ordi nance was to preserve from despoilagc nat- ur.il fc.'itures .'iiid icsoiirces such as salt niarslus. wetlands, and ponds. The court took the view the preservation of privately owiieil laiifl in its natural, iinspodid state for the enjoyment ami benefit of the public by preventing the owner from using it for any practical purpose was not within the limit and scope of the police power and the ordinance was not saved by the use of special permits. (18) It seems to us that filling a swamp not olheruisc commercially usable is not in and of itself an e.xisting use, which is prevented, but rather is the preparation for some future use which is not indigenous to a swamp. Too much stress is laid on the right of ail owner to change coinmercially valueless land when that change does dam age to the rights of the public. It is ob served that a use of special permits is a ine.ins of control and accomplishing the purpose iff the /oiling ordinance as dis tinguished from the old concept of pro viding for variances. The special permit techiiii|uc is now common (ir.actice and has met with judicial approval, and we think