Tuesday, January 09, 2007

Inverse Condemnation?

Excerpt from statement to Allegheny Township Board of Supervisors on behalf of Folmont Owners:


Consequences of Unwise Regulation May Include Inverse Condemnation?

When unwise regulation permits turbines too close to incompatible land uses, it invites inverse condemnation proceedings, especially where strong public policy interests are involved, such as home ownership and public safety.

By way of background, please consider the following summary of the theory of inverse condemnation:

"Sometimes, however, the government will deny that it has taken anything from the landowner. Thus, the landowner will commence an action, called an inverse condemnation proceeding, seeking compensation from the government. This situation can arise in a variety of ways. For example, the government might engage in conduct that destroys the landowner's ability to use and enjoy the property, such as by building an airstrip next to the property and flying planes over it, or cutting off or polluting the flow of water to the land. The government might also obstruct the landowner's access to the property with water or debris, as where dynamiting operations block the road to the landowner's property.

"The government might also infringe a landowner's rights through regulation.This could occur where the landowner buys land and builds a dance club and thenthe local government passes a law, banning dance clubs in the town. If the landowner's business is harmful to the public, the government's action in shutting it down may be a valid exercise of its police powers, as opposed to a taking. The government might also unduly restrict or diminish the property's use. A law raising minimum lot sizes from one acre to five acres robs a landowner with less than ten acres of the right to subdivide his or her property. A law denying sewer access or water access to certain plots would all but destroy their value for residential use. In these cases, the landowner could sue, arguing that the government has taken the property without paying for it." 2/

Unwise regulation, permitting turbines to be sited too close to Folmont's property, may invite litigation based not just on nuisance and personal injury, but also on inverse condemnation.

Since wind turbine investment is so highly subsidized, it may be seen that unwise regulation has the effect of taking some people's land to give other people tax breaks.

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