Also known as:nontrespassory taking · non-trespassory taking · non-trespassory takings · regulatory taking · regulatory takings
Written by attorneys · grounded in primary & secondary sources — see below
A regulatory taking in which government action diminishes the use or value of property without any physical invasion or appropriation of the owner's right to exclude. Landmark-style land-use regulations that substantially advance legitimate public interests and leave the owner with a reasonable beneficial use are generally not compensable takings.
Sources & Authorities
How it applies
Common Examples
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Heritage District Blocks High-Rise Plans
Riverfront Builders purchases old warehouses intending to demolish them for mixed-use towers. After purchase the city designates the corridor a heritage district and bars demolition while allowing renovation and commercial leasing. Riverfront retains the ability to renovate and lease the structures for income but loses its preferred redevelopment path. The city action leaves reasonable beneficial use in place and advances a legitimate preservation interest.
Exaction Demands Dedication for Permit
Florence Dolan seeks a permit to expand her hardware store. The city conditions approval on dedicating a portion of the lot for a pedestrian path and flood plain. Dolan shows the dedication bears no rough proportionality to the store expansion impacts. The condition interferes with investment-backed expectations while leaving other viable uses of the property.
Select any source to read its text and confirm it supports the definition.
Cases
Study Supplements
Florence Dolan, Petitioner v. City of Tigard, Respondent512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304
Redevelopment Plan Transfers Title
Susette Kelo owns a home in an area targeted for economic revitalization. The city condemns the parcel and transfers title to a private developer for a mixed-use project expected to increase tax revenue. Kelo receives compensation measured by fair market value but challenges the public-use determination. The transfer occurs under an integrated development plan rather than a one-to-one private transfer.
Kelo, et al. v. City of New London545 U.S. 469, 503 (2005)
Price Controls Reduce Profit Margins
Chevron operates service stations subject to a state rent-control statute capping the rent a franchisor may charge dealers. The statute reduces Chevron's net return on its property but leaves the stations economically viable. Chevron claims the controls effect a taking by interfering with investment-backed expectations. The regulation advances a legitimate consumer-protection purpose without eliminating all beneficial use.
Lingle, et al. v. Chevron U.S.A. Inc.544 U.S. 528, 537 (2005)
Temporary Building Moratorium
Tahoe-Sierra landowners hold parcels around Lake Tahoe. A regional agency imposes a multi-year moratorium on all development while studying environmental impacts. The owners retain title and may sell or hold the land but cannot build during the study period. The moratorium is temporary and serves a legitimate planning objective without denying all economic use.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency535 U.S. 302
Judicial Change in Beachfront Rights
Stop the Beach Renourishment owns oceanfront lots. A state court ruling declares that newly accreted beach belongs to the state rather than the upland owners. The decision eliminates the owners' right to future accretions without physical entry by the state. The owners contend the judicial alteration constitutes a taking of their littoral rights.
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al.560 U.S. 702 (2010)
Common questions
Frequently Asked
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When does a land-use regulation become a nontrespassory taking rather than a valid exercise of the police power?+
A regulation effects a nontrespassory taking when it goes too far by denying the owner all economically viable use or by failing the multi-factor balancing test that weighs economic impact, interference with investment-backed expectations, and the character of the government action. Regulations that leave reasonable beneficial use and advance legitimate public interests ordinarily do not require compensation.
Does a temporary moratorium on development automatically constitute a nontrespassory taking?+
No. Temporary moratoria are evaluated under the same regulatory-takings framework and are not takings when they are finite in duration and serve legitimate planning goals while leaving the owner with other economic options such as sale or holding the land.
How does the character of the governmental action affect whether a nontrespassory regulation is a taking?+
The character factor favors finding no taking when the regulation is a generally applicable land-use or preservation measure that substantially advances a legitimate public interest rather than targeting a single owner for physical appropriation or arbitrary burden.
505 U.S. 1003 (1992)Property
…a given regulation would be seen as going "too far" for purposes of the Fifth Amendment. In 70-odd years of succeeding "regulatory takings" jurisprudence, we have generally eschewed any " set formula' " for determining how far is too far, preferring to "engag[e] in . . . essentially ad hoc, factual inquiries." Penn Central…