Steel v. Cape Corp.

CATHELL, Judge. Robin S. Steel and other owners of property in Cape St. Claire appeal from a judgment of the Circuit Court for Anne Arundel County (Williams, J., presiding) that reversed the decision of the Anne Arundel County Board of Appeals (the Board), remanded the matter to the Board, and ordered the Board to grant a request to rezone the subject property owned by Cape Corporation, appellee, from OS (Open Space) 1 to R5 (Residential). Appellants pose two issues for our consideration: 1. Whether the Board of Appeals’[s] finding that the OS zoning within the Cape Corporation’s Lot constitutes a mistake left the Board with no discretion and required it to grant the Cape Corporation’s rezoning application without regard to issues concerning public health, safety and welfare such as the inadequacy of public schools, etc.[ ] 2.

Even assuming that the Board of Appeals correctly exercised its discretion in denying the Cape Corporation’s rezoning application based upon circumstances relating to the public welfare, must its decision be reversed because the decision results in an unconstitutional taking of the Cape Corporation’s property[.] Initially, we note that it is apparent that neither appellee nor the trial court (and certainly not appellants or the Board) took the position that, once a zoning mistake was found, 2 the Board lacked discretion regarding whether it had to grant the rezoning based purely upon that mistake. From our reading ⁴ of the entire record, all parties and determinative entities recognized that the finding of mistake merely opened the door to a consideration of rezoning—i.e., that the finding of mistake did not mandate rezoning. See White v. Spring, 109 Md.App. 692 , 675 A.2d 1023 (1996). Consequently, we do not perceive that a resolution of appellants’ first issue is necessary for our resolution of the case.

Moreover, the trial judge, perceiving no issue in respect to the allegations of mistake and the Board’s discretion to rezone, explicitly limited his ruling to the second issue. 3 The Relevant Facts From our review of the proceedings before the hearing examiner, the Board, and the trial court, we perceive that the site in question was first rezoned from CR (Cottage Residential), permitting up to 7.2 residential units per acre, to OS (Open Space), apparently permitting no residential units, about 1971. 4 At that time, the Cape St. Claire Improvement Association’s lease for the subject property had just expired. In the 1971 Anne Arundel County Comprehensive Rezoning, the Association, nevertheless, asserted that it had an ownership interest therein and, unknown to the property’s owner, appellee here, requested that the property'be rezoned to OS. Thereafter, still unknown to appellee, the County, apparently believing the Association to be the owner of the subject property, rezoned it as requested". It was not until 1978 that appellee learned that its property had been downzoned at the request of an entity improperly asserting an ownership interest in the property. 5 Appellee was allegedly informed that the ⁵ property would be rezoned R5, effectively curing the 1973 mistake, in a 1987 comprehensive rezoning, but this was not done.

In the 1990s (perhaps beginning in the late 1980s), appellee entered into negotiations, and, ultimately, litigation, in respect to verifying its ownership of the subject property. The dispute was resolved in appellee’s favor in 1993, when this Court rendered an opinion affirming appellee’s ownership of the property. Appellee then initiated the rezoning request that resulted in the circuit court decision now on appeal. We have capsulized the early history of the property in order to demonstrate how it was inappropriately downzoned initially to an open space classification.

As we shall indicate, an OS (Open Space) classification was obviously intended for public property or private property whose owners seek to preserve their property’s open space characteristics. Article 28 of the Anne Arundel County Code (1967) 6 specifies: § 6-204. Land included. Open Space Districts shall include: (1) lands in the natural drainage system, including wetlands, marshlands, swamplands, and lands in the floodplain; (2) private and public land used or proposed to be used for passive or active subdivision recreation, community recreation, or regional recreation; and (3) lands designated as structural open space in the General Development Plan or detail plan of open space. § 6-205.

Permitted uses. (a) The following uses are permitted as permitted uses in Open Space Districts subject to the approval, where applica ⁶ ble, of the State Department of Natural Resources, the Soil Conservation Service, the Department of Public Works, the Department of Utilities, the Health Department, and the Department of Recreation and Parks: (1) alcoholic beverage uses as ancillary to permitted uses in accordance with the provisions of § 10-118 of this article; (2) conservation uses, practices, and structures for the maintenance of the natural environment; (3) existing residential uses; (4) farming or nurseries, including truck gardening, grazing of livestock, and other similar activities if: (i) the use does not change the stability of the land; and (ii) with the exception of grazing, the use is not located in the natural drainage system;[ 7 ] (5) nonresidential structures, including barns, stables, and kennels, for the sheltering, breeding, boarding, hiring, or selling of an animal and for storage of crops raised on the premises, provided that the use is not permitted in the natural drainage system; (6) nonprofit camps, including dormitories, cabins, and structures for administrative, maintenance, and custodial activities of the camp, if the structures are not located in the natural drainage system; (7) public beaches; (8) rights-of-way or easements to provide for access to inaccessible areas;[ 8 ] ⁷ (9) structures for administrative and custodial uses of the principal use of the site, if: (i) building coverage, including parking, does not exceed 20% of the site; and (ii) the structures are not located in the natural drainage system; (10) temporary structures for boating, swimming, fishing, hunting, golf courses, ice skating, nature study, picnic areas, play areas, stables, and stands for the sale of products raised on the premises; (11) permanent structures on land for hunting, golf courses, ice skating, nature study, picnic areas, play areas, and stables, if the structures are not located in the natural drainage system; (11A) piers and ramps; and (12) other recreational and conservation structures consistent with the objectives of an Open Space District in conjunction with the uses listed in this section. (b) In an Open Space District, a recreational pier is permitted as a conditional use subject to the conditions of § 2-204(b)(3B) of this article. § 6-206. Special exceptions.

In an Open Space District, public utilities and public utility uses are permitted as special exceptions. § 6-207. Setback requirements. A use or structure other than a pier, conservation use, passive recreational use, or beach in an Open Space District may not be located: (1) less than 50 feet from any lot line; or (2) less than 75 feet from any street right-of-way. Section 6-202(a) states that the purpose of OS zoning is to preserve open spaces for recreational purposes, to protect persons and property from flooding and water pollution, and “to protect the County against costs if development ... is not compatible with the natural environment.” The purpose section of the statute provides further that “OS-Open Space ⁸ Districts are intended to guide, define, and protect development, communities, land uses, and environmental study areas through proper location of open space areas.” Art. 28, § 6-202(b).

It is clear that OS zoning was not intended, nor does it encompass any viable residential uses in the district, unless they were grandfathered, i.e., already existing. In the present case, we have found no indication in the record that residential structures are currently on the site. The trial judge described the uses permitted in OS zones: The permitted uses of an OS-open space district are general recreational uses which preserve and protect the natural environment. See Anne Arundel County Code [Art. 28,] § 6-202, 6-205.

Permitted uses on Appellant’s 3.12 acre parcel would include: conservation uses and structures for the maintenance of the natural environment; farming or nurseries; nonresidential structures, including barns, stables, and kennels; nonprofit camps; temporary structures for boating, swimming, fishing, hunting, golf courses, ice skating, nature study, picnic areas, play areas, etc.; and other recreational and conservation structures. [Art. 28,] § 6-205. The parties do not challenge that description. Moreover, there was evidence that OS zones were intended to be imposed upon either publicly controlled property or private property, at the request of the owners of that property. Gary T. Westholm, an expert in planning, land use, and appraisal, testified before the Board that OS zoning was intended for governmentally or community-owned land.

The Board of Appeals noted that, according to Mr. Westholm, this property does not meet the definition for land in OS; this is private, not public land. The property does not comply with OS zoning which is for recreational uses, to handle flooding, and to protect the county against cost. In its memorandum opinion, the Board discussed the witnesses called on behalf of Anne Arundel County. It noted ⁹ that Kevin Dooley, a zoning analyst for the County, presented testimony: He believes the open space zoning is a mistake.

He explained the comprehensive rezoning process. The property had OS zoning designation throughout and there were no profiles. Open space zoning is for environmentally sensitive or recreational property. There are some sensitive areas on the property, but the portion that is the subject of the rezoning is level with no environmental effects.

This is property in private ownership, and was not ever set aside for recreational purposes for the community. Therefore, it is a mistake. The General Development Plan (GDP) indicates natural features designation and low to medium density. R5 is consistent with low to medium density.

Mr. Dooley further testified: [T]he 1986 general development plan shows this area being in close proximity to both the natural features designation and also the low-to-medium residential designation.... R5 zoning is consistent with the low to medium density residential designation. ... [I]n addressing the issue of the compatibility of the surrounding land uses this area of Cape St. Clair[e] and the area immediately surrounding this site is zoned R5 and the R5 zoning and single-family development would be consistent with the surrounding land uses. ... So the R5 would be consistent with the critical areas designation.... ... [A]ll the other standards [other than the adequacy of school facilities standard] to justify R5 zoning can be met in this case. That will be the county’s position.

Other County agencies were of a like mind. The Anne Arundel Soil Conservation District “recommend[ed] approval of requests herein.” The Office of the Fire Marshall had “no objection to granting the requested zoning reclassification requests.” Both the Anne Arundel County Health Depart ¹⁰ ment and the Department of Recreation and Parks declined to comment on the proposed rezoning. The Board then noted that “the critical area commission did not oppose rezoning” of the subject property to R5, and commented, “Outside of the school issue, all the requirements can be met” in order for the property to be rezoned. The Board then further discussed the requirements of the statute relating to rezonings: Since the property does not have natural features which prohibit development except in the steep slope area and the property is not held by the public, only the portion containing steep slopes should have been zoned open space.

However, it is equally without dispute that this Board cannot make an affirmative finding that the public facilities are adequate. The testimony from the school personnel indicated that both the elementary and the middle school are currently over capacity and that situation is projected to continue as shown on Protestants’ exhibit #4. Since this Board is convinced of the need for the schools to have adequate capacity before any rezoning to allow the budding of more homes and further over crowding of the schools, it must deny the rezoning request. It is clear, therefore, that the Board denied the requested rezoning because of the provisions of the Anne Arundel County Code relating to the adequacy of its schools. 9 Article 3, § 2—105(a)(3) (1985), provides that property cannot be rezoned ¹¹ unless the applicant establishes that “schools ... adequate to serve the uses allowed by the new zoning classification, ... are either in existence or programmed for construction.” The adequacy of schools specifically is governed by Article 26, § 2-416 (1985): (b) Within two years following approval of a final subdivision plat, elementary and secondary schools in the service area of the proposed subdivision shall be adequate to accommodate the school population projected to be generated from the proposed subdivision.

(c) Elementary and secondary schools in the service area of the proposed subdivision shall be considered adequate if: (1) the school population projected to be generated from the proposed subdivision may be enrolled at schools located in the service area at which the enrollment does not exceed the State Interagency Committee school capacity guidelines as specified in the administrative procedures guide of the public school construction program; or (2) the County Board of Education determines that the enrollment of the additional students expected to be generated from the proposed subdivision would not be detrimental to the quality of the curriculum and programs being offered at the schools, at schools in which the enrollment exceeds the State Interagency Committee school capacity guidelines. (d) In determining whether schools exceed the State Interagency Committee school capacity guidelines, consideration shall be given to existing school population, school population projected to be generated from other subdivisions for which final plats have been approved, and all other children reasonably expected by the County Board of Education to enroll in the schools. The Board, in applying these standards to reject the rezoning, accepted the testimony of certain school officials and officers of parents’ organizations. Lawrence Ripley, the student planning director for the Anne Arundel County Board of Education, presented a letter he had written on November 16, ¹² 1993, to the Office of Planning and Code Enforcement that projected that, if R5 zoning were granted for the subject property, it would cause seven new enrollments in the various schools in the service area.

He opined that school facilities “will be inadequate to handle the number of students projected.” Mr. Ripley presented another letter that he had written to the same office on June 5, 1994, in respect to the appeal to the circuit court, in which he reiterated that the schools were then over capacity, although he discussed the impending construction of a new school. Even with the new school, Mr. Ripley opined, elementary school capacity would still be a problem. In his June 5, 1994 letter, he considered that, based on the requirements of the Adequacy of Facilities Ordinance/[ 10 ] no approval can be recommended until the school population projected to be generated from the proposed subdivision can be accommodated. At the present time ... the earliest any consideration for approval of this development would be approximately School Year 2000.

During this process, the staff, i.e., the Anne Arundel County Department of Planning and Code Enforcement, basically noted that the subject property complied with all other requirements and gave as its recommendation, “[t]he Department ... would have no objection to the granting of this [rezoning] request provided the petitioner can satisfactorily address the issue of the adequacy of public schools.” Consequently, it is apparent that the Board of Appeals denied appellee’s request for rezoning based upon the provisions of the statutes relating to the adequacy of schools. The proceedings before the administrative entities and the Board gradually narrowed in focus until, by the time of its decision, the Board predicated its determination upon the adequacy of school facilities, its comments as to potential density problems ¹³ notwithstanding. It is also clear that the County’s ordinances, as written, compelled that finding. The Board, therefore, acted correctly in applying the adequate school facilities requirements of the ordinances to deny the application.

The only question that remains is that question upon which the trial court based its decision: Did the interplay between the rezoning requirements as to adequacy of public facilities resulting from what school administrators termed the Adequacy of Facilities Ordinance result in an unconstitutional taking of property? Resolution We first note that the factual situation presented by this case is indeed unusual. Generally, there would not be a request to upzone the types of properties that are contemplated to be in OS zones, because they are contemplated to be properties owned by public entities or community associations that have requested that zoning classification to preserve the environmental and recreational aspects of their properties. The statute defines “Community recreation” as “recreation facilities used primarily by people living in large geographical areas of the County.” Art. 28, § 6—201(b). “Subdivision recreation” is defined as “facilities or land used primarily by residents living in a recorded subdivision.” Id. § 6-201(f).

The situation in the case sub judice is different. An entity, i.e., a community association, by wrongfully contending that it was the owner of property it desired to preserve as a “Subdivision recreation” area for “passive ... recreation,” caused the property to be downzoned to OS in order to accomplish that purpose without the knowledge of the true owner. Thus, it is clear that the prior downzoning was a mistake. Neither party to the appeal is now contending that it was not a mistake, and that issue is only indirectly before us.

Consequently, it can be said that the rezoning provisions' of Article 28, incorporating by reference provisions of Article 26 regarding the adequacy of schools and other facilities, contemplated that properties in private ownership that are proposed for upzoning would be in zoning classifications other than OS ¹⁴ and, thus, already in a classification that permits viable economical uses; the upzoning requests would be for an increase in economic viability, i.e., an intensification of existing residential uses that in and of themselves, in a constitutional taking scenario, are already economically viable. In almost all instances, therefore, the denial of the upzoning, due to the inadequacy of school facilities, would not result in the subject property remaining in a status that had no viable economic use. Under those contemplated circumstances, the provisions in respect to school facilities, while creating a de facto moratorium as to upzoning in the Cape St. Claire area, 11 would not have resulted in the loss of all economically viable uses for the period at issue—in the case sub judice, not earlier than the year 2000 (a six-year period), because the properties would have retained existing economically viable uses. In the case at bar, however, it is alleged that the combination of the ordinances effectively foreclosed all economically viable uses of the subject property because it was mistakenly put in a classification not meant for privately owned property of this character—a classification, it is argued, that does not permit viable economical uses.

The trial judge agreed with the applicant, appellee here, and based his decision solely upon the constitutional issue. As we have stated, we shall review only the correctness of Judge Williams’s decision. 12 ¹⁵ The Law In undertaking a regulatory takings analysis, the first step focuses upon the appropriateness of the regulation itself. In Nollan v. California Coastal Comm’n, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987), the United States Supreme Court noted, “We have long recognized that land-use regulation does not effect a taking if it ‘substantially advance[s] legitimate state interests’ and does not ‘den[y] an owner economically viable use of his land.’ ” Id. at 834 , 107 S.Ct. at 3147 (citation omitted, bracketed material in original). Under Nollan , the regulatory prohibition must further the end “advanced as the justification for the prohibition.” Id. at 837 , 107 S.Ct. at 3148 .

The Court described this requirement as the “essential nexus.” Id. In 1984, three years prior to the decision in Nollan , the Maryland Court of Appeals adopted the same standard, although it gave it a different name. Howard County v. JJM, Inc., 301 Md. 256 , 482 A.2d 908 (1984), was a case involving, ultimately, whether the County’s exaction from a developer of land for a highway was proper. The exaction occurred when the zoning regulations required the developer to “reserve” from developing land in the path of a proposed future county or state highway.

In JJM, Inc., the land to be reserved was a right of way for the proposed highway that “cut a wide swath through the proposed development.” Id. at 259 , 482 A.2d 908 . The reservation requirement was challenged as an unconstitutional taking of property without just compensation. After distinguishing a dedication, “the conveyance of ... land ... to the public,” from a reservation, a restriction on “the right ... to use the land for anything but the restrictive purpose,” 301 Md. at 270 , 482 A.2d 908 , the Court of Appeals discussed whether the statute there at issue furthered the end that was proffered as justification for the statute in the first place, i.e., ¹⁶ the first step analysis of the appropriateness of the statute. 13 The Court, describing the reservation requirement as an exaction, noted: We bear in mind in this case the “fine line” distinction observed by Justice Holmes for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 , 43 S.Ct. 158, 160 , 67 L.Ed. 322 (1922): “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Mahon, 260 U.S. at 415 , 43 S.Ct. at 160 . Cf.

Euclid v. Ambler Realty Co., 272 U.S. 365, 387 , 47 S.Ct. 114, 118 , 71 L.Ed. 303 (1926) (“The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions.”). 301 Md. at 281 , 482 A.2d 908 . The Court of Appeals then held “that in order to exact from a developer a setting aside of land for highway purposes there must be a reasonable nexus between the exaction and the proposed subdivision.” Id. at 282 , 482 A.2d 908 . This position, much earlier stated by the Court of Appeals as Maryland law in JJM, Inc., became the law of the land generally when Dolan v. City of Tigard, 512 U.S. 374 , 114 S.Ct. 2309 , 129 L.Ed.2d 304 , was decided by the Supreme Court, on June 24, 1994, in a five to four decision.

The Dolan Court examined the differing approaches utilized by the various states in determining whether the degree of exactions demanded by a permit condition bore the required relationship to the projected impact. In particular, the Court discussed (1) the generalized relationship test, finding it too lax to protect property rights, and (2) the specific and uniquely attributable test, stating that it imposed too much of a burden upon government before finding the application of the ordinance then before it unconstitutional. 512 U.S. at-, 114 S.Ct. at 2318-19 . In doing so, the Supreme Court ¹⁷ adopted the test—although it called it the rough proportionality test—which had been adopted by our Court of Appeals as the reasonable nexus or reasonable relationship test ten years earlier in JJM, Inc. 14 In the case sub judice, the statutory scheme satisfies the reasonable relationship test. The regulation itself involves a regulatory area that may be a reasonable application of the police power.

Accordingly, our review moves to the second step of the takings analysis: Does the statutory scheme, as applied to the subject property, effectively prohibit all reasonable, i.e., viable, economical uses of that property? 15 We opined at some length, in Offen v. County Council, 96 Md.App. 526 , 625 A.2d 424 (1993), rev’d in part on other grounds, 334 Md. 499 , 639 A.2d 1070 (1994), on the then trilogy of major Supreme Court land-use decisions: First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987) (First English Church); Nollan v. California Coastal Comm’n, supra, and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992). 16 We concluded that, for purposes of Offen, those cases had not created new law, but had restated the law and, at best, had expressed the ¹⁸ Supreme Court’s position rejecting statutory provisions further impinging upon a property owner’s rights. 96 Md.App. at 544-55 , 625 A.2d 424 . The trilogy, especially Lucas , in essence said, “No more.” The Supreme Court, as we view it, stopped-the trend toward the diminution of private property rights through regulatory schemes based upon perceived environmental concerns. 17 See Florida Rock Indus., Inc. v. United States, 791 F.2d 893, 900-03 (Fed.Cir.1986), cert. denied, 479 U.S. 1053 , 107 S.Ct. 926 , 93 L.Ed.2d 978 (1987); Collis v. City of Bloomington, 310 Minn. 5 , 246 N.W.2d 19, 26 (1976); City of College Station v. Turtle Rock Corp., 680 S.W.2d 802, 804-06 (Tex.1984); Call v. City of West Jordan, 606 P.2d 217 (Utah 1979); Jordan v. Village of Menomonee Falls, 28 Wis.2d 608 , 137 N.W.2d 442 (1965), appeal dismissed, 385 U.S. 4 , 87 S.Ct. 36 , 17 L.Ed.2d 3 (1966); see also J.E.D. Assocs. v. ¹⁹ Town of Atkinson, 121 N.H. 581 , 432 A.2d 12, 14 (1981), overruled in part by Auburn v. McEvoy, 131 N.H. 383 , 553 A.2d 317 (1988); Jenad, Inc. v. Village of Scarsdale, 18 N.Y.2d 78 , 271 N.Y.S.2d 955, 956-57 , 218 N.E.2d 673, 674-75 (1966). Compare Pioneer Trust & Sav. Bank v. Village of Mount Prospect, 22 Ill.2d 375 , 176 N.E.2d 799, 802 (1961), in which a developer was required to provide school facilities.

The court there noted that the need for a new elementary school was not completely attributable to the developer’s project. The Illinois Supreme Court noted, “ [T]he school problem which allegedly exists here is one which the subdivider should not be obliged to pay the total cost of remedying.” 176 N.E.2d at 802 . For purposes of the case sub judice, First English Church is an important part of the Supreme Court’s trilogy of land-use cases, as it relates to the moratorium aspect of the statutory scheme here addressed. In that case, the church had, for some time, owned land in a California creek basin, which it operated as a retreat and campground, i.e., those types of activities often associated with churches.

In 1978, a flood destroyed the church’s buildings in the creek basin. Responding to the flood, Los Angeles County adopted an “interim ordinance,” that provided, in relevant part: A person shall not construct, reconstruct, ... any building ... any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area 482 U.S. at 307 , 107 S.Ct. at 2381 (quoting County of Los Angeles Ordinance No. 11,855 (1979)). The church filed suit, claiming, in part, that the ordinance “denies [appellants] all use” of the property, and sought damages for the taking. The trial court, citing a California case, Agins v. City of Tiburon, 24 Cal.3d 266 , 157 Cal.Rptr. 372 , 598 P.2d 25 (1979), aff'd on other grounds, 447 U.S. 255 , 100 S.Ct. 2138 , 65 L.Ed.2d 106 (1980), found that the church’s case could not be maintained as a case for damages unless there had been a prior declaratory judgment or mandamus action declaring the statute unconsti ²⁰ tutional.

See 482 U.S. at 308-09 , 107 S.Ct. at 2382. Because the case was based upon a regulatory taking and sought damages, the California court declined to entertain the taking issue. On appeal, the United States Supreme Court noted that the church was asking it to void the California court’s holding that temporary regulatory takings do not require compensation. 18 The Supreme Court noted: Appellant’s [First English Church] complaint alleged that [the ordinance] “... denies [it] all use of Lutherglen,” [the retreat and camp] and sought damages for this deprivation. ... [T]he claims were deemed irrelevant solely because of the California court’s decision in Agins that dam ²¹ ages are unavailable to redress a “temporary” regulatory taking____[ 19 ] ... We now turn to the question whether the Just Compensation Clause requires the government to pay for “temporary” regulatory takings. 482 U.S. at 311-13 , 107 S.Ct. at 2384-85 (footnotes omitted).

After a discussion of its prior cases, primarily those relating to the appropriation of private property by the United States in World War II, the Court answered its question: The[] cases reflect the fact that “temporary” takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation .... It is axiomatic that the Fifth Amendment’s just compensation provision is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” ... Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause ... requires that the government pay the landowner for the value of the use of the land during this period. Id. at 318, 107 S.Ct. at 2388 (citations omitted).

Thus, the (more or less) temporary character of the Anne Arundel County Code’s Adequacy of Facilities Ordinance, combined with the zoning ordinance, does not insulate the statutory scheme from constitutional takings analysis. We, as did Judge Williams, must therefore determine whether the statutory scheme denied appellants all economically viable uses of the subject property. See Nollan, supra; Lucas supra. We first address certain of the Supreme Court’s holdings and statements in Lucas . ²² The Supreme Court in Lucas noted that, under the Beachfront Management Act, the South Carolina statute there at issue, “construction of occupiable improvements was flatly-prohibited seaward of a line.” 505 U.S. at 1009 , 112 S.Ct. at 2889 .

That line was landward of Lucas’s property. The statutory scheme at issue in the case sub judice, as it applies to appellee’s property, results in a prohibition of construction of any “occupiable ” improvements on the subject tract. Lucas argued at the trial level that, even if the statute were a legitimate exercise of the police power, the complete extinguishment of his right to build on his property entitled him to compensation. The trial court agreed.

The South Carolina Supreme Court reversed, opining that, when a property regulation is designed “to prevent serious public harm,” no compensation was required. 304 S.C. 376 , 404 S.E.2d 895, 899 (1991). The United States Supreme Court noted, in Lucas , that the state appellate court dissenters had opined that that which the state court majority asserted were akin to nuisances were not in fact nuisances as the term is commonly used, and, thus, the statutory scheme could not, according to the state court dissenters, “fairly be compared to nuisance abatement.” 505 U.S. at 1009-11 , 112 S.Ct. at 2890 . The Lucas majority noted the potentiality for improper appropriation of a land owner’s property when states attempt to address perceived public problems statutorily: On the other side of the balance, affirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use—typically, as here, by requiring land to be left substantially in its natural state— carry with them heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. Id. at 1018 , 112 S.Ct. at 2894-95 .

Much the same can be said about the statutory scheme in the case at bar as applied to property in the OS classification. The Supreme Court continued with a statement that appears, to us, to be particularly cogent in the case sub judice: ²³ We think, in short, that there are good reasons for our frequently expressed belief that when an owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking. Id. at 1019 , 112 S.Ct. at 2895 (footnote omitted). While a strong argument can be made that the statutory scheme here at issue, i.e., the combination of the Adequacy of Facilities Ordinance and the zoning article, is for the common good, that argument, if resolved favorably to the County, does not, under Lucas , resolve the matter.

Even if it were for the common good, it still may cause an unconstitutional taking if it, as it does in the case sub judice, results in the loss of all viable economic uses. While a situation where such adequacy of facility statutes slow growth might be constitutionally permissible, 20 it is not constitutionally permissible where the type of growth reduction occurs at the expense of a property owner’s loss of viable economic use of his property. In the unique circumstances of the instant case, that is what resulted. It is also necessary to point out that the regulatory scheme here evidenced does not involve nuisance abatement.

The Lucas Court addressed at length that very issue, by discussing the South Carolina appellate court’s reasoning in respect to that court’s efforts to portray the South Carolina statute as a nuisance abatement measure by its notation that the statute was necessary to “prevent a great public harm.” The Supreme Court then noted the South Carolina’s court positions that the purposes of the statute brought the case within the ambit of Mugler v. Kansas, 123 U.S. 623 , 8 S.Ct. 273 , 31 L.Ed. 205 (1887), the nuisance abatement case, and its progeny, i.e., the line of cases including Goldblatt v. Town of Hempstead, 369 U.S. 590 , 82 S.Ct. 987 , 8 L.Ed.2d 130 (1962); Miller v. Schoene, 276 U.S. 272 , 48 S.Ct. 246 , 72 L.Ed. 568 (1928); Hadacheck v. Sebastian, 239 U.S. 394 , 36 S.Ct. 143 , 60 L.Ed. ²⁴ 348 (1915). The Lucas Court acknowledged that many of its opinions had suggested that “ ‘harmful or noxious’ uses of property could be proscribed by government regulation without the requirement of compensation.” 505 U.S. at 1022 , 112 S.Ct. at 2897 . The Court stated: One could say that imposing a servitude on Lucas’s land is necessary in order to prevent his or it from “harming” South Carolina’s ecological resources; or, instead, in order to achieve the “benefits” or an ecological preserve.... When it is understood that “prevention of harmful use” was merely our early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; and that the distinction between regulation that “prevents harmful use” and that which “confers benefits” is difficult, if not impossible, to discern on an objective, value-free basis; it becomes self-evident that noxious-use logic cannot serve as a touchstone to distinguish regulatory “takings”—which require compensation—from regulatory deprivations that do not require compensation.

A fortiori the legislature’s recitation of a noxious-use justification cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated. Id. at 1024-26 , 112 S.Ct. at 2898-99 (citations and footnotes omitted). In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the “implied limitation” that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become a part of our constitutional culture. ... We believe similar treatment must be accorded