Also known as: background principles of state law · background principles
Written by attorneys · grounded in primary & secondary sources — see below
A pre-existing limit on property rights derived from a state's common law of nuisance and property that inheres in title at the time of acquisition. Such limits prevent a regulation from constituting a per se taking even when it eliminates all economically beneficial use of land.
Seaside Development LLC bought a barrier-island parcel when residential construction was permitted. After storms the county rezoned the entire island to a no-build conservation zone that left the land unsaleable. Because no background principle of state nuisance or property law already barred residential building at purchase, the total deprivation triggers a per se taking claim.
A buyer acquired beachfront lots after a coastal resilience ordinance had already banned new construction. The buyer argued the ordinance became a background principle merely by passage of title. The court rejected that claim and held that a regulation does not automatically qualify as a background principle simply because title changed hands after enactment.
Select any source to read its text and confirm it supports the definition.
Metro Tech purchased coastal bluff land for a data-center campus before the state designated the area a critical erosion zone and banned all new structures. The state asserted the ban reflected longstanding shoreline-protection rules. Because those rules qualified as background principles existing at acquisition, the regulation did not effect a total regulatory taking.
Harbor Host acquired pristine beachfront dunes for a boutique resort when no specific rules barred construction. The city later enacted a dune-preservation ordinance forbidding all building. The city claimed longstanding common-law nuisance principles already barred dune destruction. Because those principles existed at purchase, the ordinance fell within the background-principle exception.
Landowners held parcels subject to a multi-year moratorium on all development while a regional planning agency studied erosion controls. They claimed the moratorium eliminated all economically beneficial use. The agency responded that background principles of state property law already limited development during the planning period, preventing a per se taking finding.
Stop the Beach Renourishment acquired oceanfront property expecting to maintain its dry-sand area after state-sponsored renourishment. The state asserted that common-law principles of accretion and avulsion already limited private title to the water's edge. Because those background principles existed at acquisition, the regulation did not constitute a judicial taking.
A regulation avoids per se takings liability when the prohibited use was already barred by background principles of state nuisance or property law that existed when the owner acquired title. Those principles inhere in the title and mean the owner never possessed the right to engage in the restricted activity.
Supporting sources
No. Mere passage of title after a regulation is enacted does not transform the regulation into a background principle. Background principles must reflect common, shared understandings of permissible limitations that predate acquisition.
Supporting sources
They supply the exception to the per se rule. When the regulation codifies preexisting nuisance or property-law limits, the owner retains no compensable right to the prohibited use and no compensation is due even though all economic value is destroyed.
Supporting sources
Residual uses are irrelevant once background principles are established. The key inquiry is whether the regulation merely prevents a use that background law already disallowed at acquisition. If so, the per se rule does not apply regardless of any remaining marginal value.
Supporting sources
…existed at the time the owner acquired title, may also be relevant. I would remand for the state court to consider all relevant background principles of state law. Dissenting opinions Dissenting — Justice Blackmun The Court today launches a broad new takings rule that will have far-reaching consequences. The Beachfront Management Act is a…