Monday, February 16, 2009

Taking or Easement?

Bernie at Orphan Road found an interesting article from Spokane. Seems as if the local government is looking to preserve right of way through zoning. Is there a way to preserve ROW that isn't a taking but doesn't cost the city money? I would have thought this qualified as an easement where the city can push for the land owners to allow the city to use the property for a specific use such as ROW, but the city has to get permission from the land owner.

In Portland, the Lake Oswego rapid streetcar would run on an existing easement that allows the rail line to run. If the current shoreline trolley stops operating, the easement reverts to the original landowners. This was discussed in recent comments at Portland Transport.


AC said...

My off-the-cuff, unresearched guess: Imposing a setback that doesn't significantly reduce the value of the property would not be considered a taking. Requiring the property owner to provide an easement is certainly a taking. Imposing a setback in order to reduce the market value (or cost) of a future easement would be a taking.

Interesting issue.

Anonymous said...

Messy area of law. Permanent physical occupation of land is always a taking ( ) but easement like this is not permanent so it's probably a balancing (consider how much it reduces the value of the land and interferes with owners' rights against any reason not to find it a taking). I'm not an expert.

Anonymous said...

My URL did not come out right. Look at this case on Wikipedia:

Loretto v. Teleprompter Manhattan CATV Corp.

or here for the real thing (hope that link works)