Kasparek v. Johnson County Bd. of Health

288 N.W.2d 511

 

RULE:

The exercise of police power may amount to a taking if it deprives a property owner of the substantial use and enjoyment of his property. If the property owner suffers a taking, the property owner must be reimbursed for the taking.

FACTS:

Plaintiffs challenged a regulation that prescribed a minimum five-acre tract for a permit to install a septic tank disposal system and excluded them from the grandfather clause. Due to the patchwork of sold and unsold lots, their subdivision tracts were less than five acres and were made unsuitable for residential or agricultural purposes by the regulation. They claimed that the devaluation of the property had resulted in their suffering a constitutional taking. Defendants moved to dismiss the claim, on he grounds of public health and the plaintiffs moved to dismiss this claim. The appellate court overruled the motion to dismiss the board of health's appeal, holding that the board of health had the authority to bring the appeal. The appellate court affirmed the trial court's finding that the regulation was unconstitutional as applied to plaintiffs and intervenors.

ISSUE:

Does the exclusion of plaintiffs and intervenors from the grandfather clause deprive them of any reasonable use of their land and was the regulation not reasonably necessary to effectuate a substantial public purpose.

ANSWER:

Yes.

CONCLUSION:

The court found that the exclusion of plaintiffs and intervenors from the grandfather clause deprived them of any reasonable use of their land and was not reasonably necessary to effectuate a substantial public purpose, constituting a constitutional taking. The court held that plaintiffs and intervenors had acquired vested rights and that the board of health could not deprive them of those rights without just compensation.

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