Also known as: economically viable uses · economic viability · denial of economically viable use
Written by attorneys · grounded in primary & secondary sources — see below
A standard in regulatory takings analysis that measures whether a land-use regulation leaves the owner with some productive or income-generating capacity in the property. Regulations that leave at least one such use in place generally do not effect a taking even if they reduce the property's value or block its most profitable development.
Evelyn Ellison purchased an aging downtown depot with plans to replace it with a mixed-use tower. After the city designated the structure a historic landmark, Ellison could no longer demolish the building but continued operating passenger rail service that generated modest but steady revenue covering maintenance costs. The retained rail operations supplied an ongoing income stream from the property.
Eugene Ellsworth sought a permit to rebuild a beachfront home. The coastal commission required a public easement across the property as a condition. Ellsworth received the permit and constructed the home, which he then rented seasonally for substantial income. The retained residential use generated ongoing economic returns from the land.
Select any source to read its text and confirm it supports the definition.
Elise Everly applied to expand a hardware store. The city conditioned approval on dedicating a strip of land for a bike path. Everly completed the expansion and continued profitable retail sales on the remaining parcel. The store operations produced regular revenue despite the dedication.
Ethan Evans bought two beachfront lots zoned for single-family homes. The state later enacted a statute barring all construction on the lots to protect dunes. Evans could neither build residences nor sell the parcels for any development purpose, leaving the land idle with no income potential.
Ezra Eastman operated a riverside campground on church property. After a flood, the county enacted an ordinance barring all rebuilding or use for eighteen months. Eastman could not operate the campground or derive any revenue during the moratorium period.
Emerald Enterprises acquired shoreline parcels for eventual subdivision. A regional planning agency imposed a multi-year moratorium on all development to study environmental impacts. The company retained the ability to hold the land for later sale once the moratorium lifted, preserving its investment value.
A regulation denies all economically viable use when it leaves the owner with no productive or income-generating capacity in the property. Courts treat such a total deprivation as a per se taking unless background principles of state property or nuisance law already barred the use at acquisition.
Supporting sources
No. A regulation that reduces value or blocks the most profitable use still leaves economically viable use if the owner retains any productive capacity. Courts therefore apply the multi-factor balancing test rather than finding a taking.
Supporting sources
Courts examine whether the remaining uses can generate income or serve a productive function. Uses that merely allow limited access or preservation without revenue potential do not count as economically viable when the regulation has eliminated all development or commercial activity.
Supporting sources
…The proper inquiry is whether the regulation substantially advances a legitimate state interest and does not deny the owner economically viable use of the land. Agins v. City of Tiburon , 447 U. S. 255, 260 (1980). The categorical rule announced by the Court today may be appropriate in some circumstances, but I would not adopt it as a…