CON RESPECTO AL OBJETIVO ESPECÍFICO “3”

Primary Issue: Dedication of land for schools, parks or recreational sites as a condition of the grant of planning permission for a subdivision.

Facts of the Case: Developer wished to recover monies paid ($200 per lot) in lieu of the dedication of land for schools and parks as a condition of subdivision approval.

Held: By Supreme Court of Wisconsin that requiring dedication of land, or fees in lieu, to provide for schools, parks and other public facilities is a valid exercise of police powers. Such dedications or payments are not an

unconstitutional taking as long as they relate to the additional demands on public services created by the subdivision (Williams, 1980, 188-98).

Contractors and Builders Association of PIneallas County v City of Dunedin Florida (1976)

Primary issue: Does a municipal water and sewer connection fee amount to an unauthorized tax when monies collected are placed in the city general fund?

Facts of the Case: Property owners in the City were required to pay a connection fee to the municipal water and sewer systems. Appellants argued that as the monies were collected and earmarked for "capital

improvements of the water and sewer system as a whole" they constituted an authorized tax.

Held: The Florida Supreme Court held that as long as the monies collected were used to meet the costs of expanding the systems to accommodate growth they did not constitute an unauthorized tax. The costs of new

facilities should be borne by the new users, however, the fees should not be used for other purposes (Contractors and Builders Association of Pineallas County V City of Dunedin Florida, 329 So. 2d 314.1976).

Penn Central Transportation Company v City of New York (1978) Primary Issue: Can a city place restrictions on the development of historic landmarks over and above zoning restrictions without effecting a taking requiring payment of just compensation?

Facts of the Case: In 1965 New York City passes a Landmark

Preservation Law to protect desirable features of the existing urban fabric. The law requires property owners to keep the exterior "in good repair" and have any exterior alterations approved by the Landmark Preservation

Commission. Under New York City zoning laws owners of real property who have not developed their property to the full extent permitted under zoning are allowed to transfer development rights to other lots, provided the development on those lots does not dot exceed twenty percent of the limit allowed in the zone.

The Penn Central terminal is an eight story building in midtown Manhattan. It is one of a number of high profile buildings owned by the appellants in midtown. At least eight of these buildings could be the recipient of

transferred development rights. The appellants had requested and were denied permission to build a fifty-five story office building cantilevered over the terminal and make alterations to the facade.

Held: By the United States Supreme Court that by prohibiting of building over the terminal the appellants use of the air rights had not been nullified. They could still transfer the air rights to their other properties in midtown. No taking had occurred, the restrictions are substantially related to the

promotion of the general welfare. They also permit reasonable beneficial use of a landmark site and afford opportunities to enhance other properties (Cassidy, 1995, 10-5,28).

Primary Issue: Does a municipal ordinance reducing the density of development take property in violation of the Fifth and Fourteenth Amendments?

Facts of the Case: Appellants acquired five acres of undeveloped land In the city of Tiburon for residential development. The City adopted a zoning ordinance In accordance with state law, permitting one single family house on five acres. Appellants claimed a taking, although they had never sought planning permission for the land.

Held: In an unanimous decision the United States supreme Court held that the zoning ordinance did not take the property without just compensation. The ordinance substantially advances the legitimate government goal of discouraging urban sprawl. The ordinance Is a proper exercise of the police powers as It limits but does not prevent development (Aglns, 447 U. S.,

1980, 7-13).

Loretto V Teleprompter Manhattan CATV Corporation (1982) Primary Issue: Does a "permanent physical occupation" of property, no matter how small, constitute a taking?

Facts of the Case: New York State statute provides that a landlord must permit cable television companies to install facilities on property. Landlords cannot demand payment in excess of the amount determined by the State Commission as reasonable. In this case the Commission determined that a one time payment of $1.00 was reasonable. Appellant argued that the Installation of thirty feet of one half Inch diameter cable, eighteen Inches below the roof and two large silver boxes on the roof, was a permanent physical occupation and constituted a taking without just compensation. H e ld : The United States Supreme Court held that a regulation which results in a permanent physical occupation of the property of an unwilling owner is a taking per se. It does not matter how small the invasion is or that it achieves an important public benefit. To the extent of the occupation, the owner's right to possess, use and dispose of property is effectively

destroyed. Occupation is more severe that a regulation as the owner has no control over the nature and extent of the invasion (Loretto, 458 U. S., 1982, 15-42, Michelman. 1987, 1608. Rubenfeld, 1993, 1083-5).