Bill mused:

> The area I am in is zoned rural. Agriculture is allowed but pig and
> poultry farming is not. Cows and horses are OK. (Give me the rational for
that.)

That's easy - large pig and chicken farms generate significant volumes of
concentrated pollutants, and these must be well away from rivers, streams,
and wells to protect public water supplies in flood and "overflow" scenarios.

> Loss of income is not "taking". The land has to be made worthless or
> nearly so and unsellable.

It is not surprising that someone that sits on a zoning board would
imagine such narrow Constitutional limits on a zoning board.  :)

Judges clearly disagree.  The mere number of cases litigated prove
that the courts have jurisdiction over a wide range of "lesser takings".

A "taking" need only prevent a citizen from continuing an existing
profitable (or enjoyable) activity to be a "taking".  Even a water
line easement is a "taking", which is why one must often "buy" an
easement.  Yes, the total award can be reduced in the calculus of
figuring the (new) "market value" of the land, but even a retired
person who keeps a few hives of bees and sells his honey from his
porch can show tangible damages if he is forced to stop keeping bees
on his land.  If the use at issue is restricted due to what is, in effect,
a land-use change (for example, an "agricultural" area that becomes
"residential" or the case in Aurora, CO, where a new restriction is
being created from whole cloth), the traditional approach is to
"grandfather" existing uses to avoid being overturned by the courts.

> It is a very difficult thing to prove.

While proof is problematic in many "development", "land-speculator" or
"wetland" cases, the situation where a specific existing activity like
beekeeping might be banned is much more clear-cut.  There is no "speculative"
aspect to the restricted land use.  The impact would be very direct, the
use would be a "traditional use" and the damages could be documented with ease.

> But the key is not convincing a Board, it is keeping the law off the
> books in the first place.

Agreed, but it is hard to stop a local official from being "responsive"
to "citizen complaints", no matter how silly. If I was dealing with your
zoning board or town council, I'd come to the first meeting with an
injunction (easy to get when one can use terms like "livelihood", "traditional
use", and "right to farm"), and make a very short statement before anyone
even started to consider the issue.

The statement would be "Game over, dude."  :)


                jim

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