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TexLaw
TexLaw, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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My question pertains to "wetlands" and the local government

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My question pertains to "wetlands" and the local government insisting that they control what I can and can't do on my private property.

I purchased a home that has approx. 1.5 acres of land. approx. 1 acre behind my hose has been designated "wetland" and so the local agency (Rice Creek Watershed District) has denied my request to put a "sport court" back there. My so called wet land is not wet. There is no standing water except for a ditch that runs through it. They claim that putting down a cement slab will damage the environment and cause run-off issues. Note - we are talking about a 30 x 60ft. sport court.

Based on the constitution - it says that in order for govt to "take" land - the owner must be compensated for it. I have not been compensated at all for the govt control of my property. If the govt wanted to control my property - it was for sale - they could have and should have purchased the property. They didn't. I did. How is it legal for the local govt agency to control what I can do on my own land (which to me is the same as taking it) without compensation? Can they pass laws that give them this right?
Hi,

Thanks for your question.

Did the "wetlands" designation pre-exist your purchase of the property?
Customer: replied 3 years ago.


Yes they did. I was notified that at closing that this area was designated wetlands. So, I hope that doesn't mean that it's buyer beware and I shouldn't have bought it is I didn't like the regulation that comes with it. I'm hoping that the principle of "controlling" private property regardless of whatever local laws are passed in not constitutional. For if the govt can pass laws that give them power to control private property for whatever reason - why would they ever need to purchase property? Why not just control private property?

Well, these are some questions that you may not really find a satisfactory answer to.

From a legal perspective, the government has the power under state and federal constitutions to designate certain lands to protect the environment, such as a wetland designation.

If this designation took place when you own the land and limits your sue of the land, then the takings clause in the constitution would allow you to get constitution for the loss of your right to use the land in a specific way.

However, if the designation of the wetlands pre-existed your purchase of the land, then there has not been a taking from you. The taking was from the owner at the time of the designation by the government.

So in your case, if you bought the land and it was already designated a wetland, you are stuck with that designation and have to abide by the restrictions put on the land by the government.
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