Also known as: per se regulatory takings · per se taking · categorical taking
Written by attorneys · grounded in primary & secondary sources — see below
A categorical classification under the Takings Clause that treats a land-use regulation depriving an owner of all economically beneficial or productive use of land as a taking requiring just compensation. The rule applies unless the prohibited use was already barred by background principles of nuisance or property law at the time of acquisition. Total economic wipeouts receive the same treatment as physical appropriations.
Patrick Phan buys coastal acreage intending to build homes. A new state regulation then prohibits all construction to protect dunes. The rule leaves the parcel with no economically beneficial use. The regulation therefore qualifies as a per se regulatory taking that requires just compensation.
Paula Pierce owns parcels slated for immediate construction. The county imposes a two-year building moratorium while it studies flood risks. The restriction denies all economic use only for a limited period. Courts must weigh duration, planning purpose, and owner expectations rather than applying the per se rule automatically.
Select any source to read its text and confirm it supports the definition.
A regulation qualifies when it deprives the owner of all economically beneficial or productive use of the land. The rule treats such a total wipeout like a physical appropriation. Compensation is required unless background nuisance or property principles already prohibited the use at acquisition.
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No. A temporary moratorium that denies all economic use for a limited period is not automatically a per se taking. Courts instead examine duration, government planning purposes, owner expectations, and effects on value to decide whether fairness requires compensation.
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The per se rule applies only to total economic wipeouts and dispenses with balancing. Other regulatory takings claims require weighing economic impact, interference with investment-backed expectations, and the character of the government action.
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