denies all economically beneficial or productive use of land
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Also known as:denying all economically beneficial use · denies all economic use · total deprivation of economic use · Lucas taking · total regulatory taking · total taking
Written by attorneys · grounded in primary & secondary sources — see below
A regulation that leaves privately owned land without any economically beneficial or productive use. Such a regulation constitutes a per se taking under the Fifth Amendment unless the prohibited use was already barred by background principles of nuisance or property law at the time of acquisition.
Sources & Authorities· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
How it applies
Common Examples
5
Temporary Moratorium on Development
Evergreen Renewables LLC owns remote land zoned solely for a utility-scale wind and solar project. The county board adopts a four-year moratorium on new renewable facilities while it studies visual and wildlife impacts. Evergreen claims the moratorium effects a per se taking because the land has no other profitable uses during the pause. The court rejects the per se claim and applies a multifactor analysis that weighs the moratorium's duration, planning purpose, and overall impact on value.
Post-Acquisition Regulatory Change
Harborline Hospitality purchases a narrow beachfront lot zoned for lodging. Two years later the city adopts an ordinance designating the beachfront a dune restoration corridor that prohibits all private structures. Experts confirm the lot now has no economically beneficial or productive use. Harborline sues, alleging a per se taking. The court holds that the ordinance effects a per se taking unless the city proves the prohibited uses were already barred by background nuisance or property principles when Harborline acquired the lot.
Palazzolo v. Rhode Island533 U.S. 606 (2001)
Contiguous Parcels and Economic Use
The Murr siblings inherit two adjacent lots along a river. Local rules treat the lots as a single parcel for development purposes and bar construction on the combined tract. The siblings argue the rules deny all economically beneficial use of one lot. The court examines the parcels as a whole and concludes that the regulation does not deny all economically beneficial or productive use of the land taken together.
Murr v. Wisconsin582 U.S. 383 (2017)
Total Wipeout of Development Rights
David Lucas buys two beachfront lots zoned for single-family homes. After purchase the state enacts a beachfront management act that bars all construction on the lots. Lucas sues, claiming the act denies all economically beneficial or productive use of his land. The court holds that the act effects a per se taking unless the state shows the building prohibition was already inherent in background nuisance or property principles at acquisition.
Lucas v. South Carolina Coastal Council505 U.S. 1003 (1992)
Distinguishing Means-Ends Scrutiny
Chevron U.S.A. challenges a state rent-control statute that caps the rent it can charge dealers for service-station leases. Chevron argues the statute fails to substantially advance a legitimate state interest and therefore effects a taking. The court clarifies that the substantially advances test is not the proper standard for regulatory takings claims and that the per se rule for denial of all economically beneficial use does not apply to the rent-control measure.
Lingle, et al. v. Chevron U.S.A. Inc.544 U.S. 528, 537 (2005)
Common questions
Frequently Asked
4
When does a regulation that eliminates all economic use trigger a per se taking?+
A regulation that denies all economically beneficial or productive use of land effects a per se taking under the Fifth Amendment. The government must pay just compensation unless the prohibited use was already barred by background principles of nuisance or property law when the owner acquired the land.
Supporting sources
Does a temporary moratorium that bars all development automatically qualify as a per se taking?+
No. A temporary moratorium on development that denies all economic use for a limited period is not automatically a per se taking. Courts instead examine the duration of the restriction, the government's good faith planning purposes, owners' reasonable expectations, and effects on value to decide whether fairness and justice require compensation.
What uses count as economically beneficial or productive when a regulation leaves only minimal residual activities?+
Limited seasonal grazing and a small annual conservation payment do not restore economically beneficial or productive use when the owner purchased the land specifically for a high-yield orchard operation. The regulation still effects a per se taking if it eliminates the intended productive use and no background principles already barred that use.
Supporting sources
How does the per se rule interact with the owner's knowledge of preliminary studies before purchase?+
Preliminary wildlife studies that had not yet produced formal restrictions do not qualify as background principles of nuisance or property law. Those studies therefore do not prevent a finding that the later regulation denies all economically beneficial or productive use and effects a per se taking.
Supporting sources
denies all economically beneficial or productive use of land
" will require compensation under the
Taking
s Clause. Where a regulation places limitations on
land
that fall short of eliminating all
economically
beneficial
use, a
taking
nonetheless may…
,' and then whether there had been a '
total taking
.' Emphasizing the temporary nature of the regulations, testimony that average holding time of a lot is twenty-five years, and petitioners' failure to offer specific evidence of harm, the…
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' will require compensation under the
Taking
s Clause." Palazzolo v. Rhode Is
land
, 533 U.S. 606, 617, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001) (quoting
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, supra , at 1015, 112 S. Ct.…
, a
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-type “
total regulatory taking
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taking
, or a
land
-use exaction violating the standards set forth in Nollan and Dolan . Because Chevron argued only a “substantially advances” theory in support of its…
Constitutional LawIndividual rights · TakingsUBEFoundational