Also known as: regulatory takings
Written by attorneys · grounded in primary & secondary sources — see below
A government regulation of property that goes too far and effectively acquires the property or eliminates its fundamental attributes of ownership. Courts evaluate the claim under a multi-factor test that weighs the economic impact on the claimant, the extent of interference with distinct investment-backed expectations, and the character of the governmental action.
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Aurora Energy owns a riverside power plant that the State Heritage Council designates as a protected industrial heritage site. The designation bars demolition and major exterior changes, preventing Aurora from building a larger gas-fired facility it had planned. Aurora retains the ability to continue smaller-scale electricity generation inside the plant and to lease roof and yard space for solar arrays that generate ongoing revenue.
Rosa Ruiz owns a downtown lot and seeks a building permit to expand her retail store. The city conditions approval on her dedicating a strip of land for a public pedestrian path. The required dedication bears no direct relationship to any specific impact created by the expansion and leaves Ruiz with substantially less usable area for her planned project.
Rina Rahman and her neighbors own homes adjacent to a large hog confinement operation. A county ordinance grants the operator immunity from nuisance suits arising from odors and runoff. The immunity effectively allows the operator to impose recurring intrusions on the neighbors' land without their consent or compensation.
Rowan Russell owns a modest home in a neighborhood targeted for economic redevelopment. The city condemns the property and transfers title to a private developer for construction of office space and retail stores. Russell receives only the appraised value and loses the ability to remain in the home she has owned for decades.
Ronald Reed purchases two oceanfront lots intending to build single-family homes. A new state coastal-protection statute prohibits any permanent habitable structures on the lots. The ban leaves Reed with no economically beneficial use of either parcel.
Renata Russo owns commercial property whose value depends on the outcome of a disputed local ballot measure. A court decision resolving the election dispute upholds a zoning change that sharply restricts future development of the parcel. The ruling prevents Russo from pursuing the higher-value use she had reasonably anticipated.
A court applies a multi-factor balancing test that examines the economic impact of the regulation on the claimant, the extent to which the regulation interferes with distinct investment-backed expectations, and the character of the governmental action. Land-use controls that substantially advance legitimate public interests and leave the owner with a reasonable beneficial use are generally upheld.
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…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…
…See also Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1032, n. 18 (1992) (South Carolina could defend a regulatory taking "if an objectively reasonable application of relevant precedents [by its courts] would exclude . . . beneficial uses in the circumstances in which the land is presently found"); Bishop…
…we explained why similar practical concerns (among others) undermined the use of the "substantially advances" formula in our regulatory takings doctrine. See Lingle v. Chevron U. S. A. Inc. , 544 U. S. 528, 544 (2005) (noting that this formula "would empower—and might often require—courts to substitute their predictive judgments…
…purposes as appropriating or destroying it." Pennsylvania Coal Co. v. Mahon , 260 U. S. 393, 414 (1922). The so-called "regulatory takings
…CATV Corp. , 458 U.S. 419, 425, 102 S. Ct. 3164, 3171, 73 L. Ed. 2d 868, 886 (1982). Presumably, in all other cases involving “
No. The Constitution does not guarantee the right to the most profitable use of property. A taking occurs only when the regulation goes so far that it is functionally equivalent to an appropriation, not merely when it frustrates a preferred development plan.
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A per se physical taking occurs when the government authorizes third parties to enter private property on a recurring basis, thereby appropriating the owner's right to exclude. This categorical rule applies regardless of the duration of each entry or the economic impact on the owner.
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Yes. A land-use regulation that denies a landowner all economically beneficial use of property constitutes a per se regulatory taking unless the prohibited use could have been enjoined under background principles of state nuisance or property law.
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The test weighs the partial economic impact, the owner's reasonable expectations formed against a background of land-use regulation, and the legitimate character of preservation measures. A designation that leaves viable economic uses and advances a recognized public interest ordinarily does not effect a compensable taking.
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