Also known as: regulatory takings doctrine · regulatory taking · regulatory takings
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine under the Takings Clause holding that a land-use regulation effects a compensable taking when it goes too far in diminishing value or frustrating expectations even though title remains with the owner. Courts apply a multi-factor test that weighs the economic impact of the regulation on the claimant, the extent of interference with distinct investment-backed expectations, and the character of the governmental action. Regulations that substantially advance legitimate public interests and leave the owner with reasonable beneficial uses are generally not compensable.
Aurora Energy owns a historic riverside power plant. The State Heritage Council designates the plant a protected industrial heritage site and bars demolition or major exterior alteration. Aurora may still operate smaller-scale electricity generation and lease roof space for solar arrays. The designation leaves Aurora with ongoing economic uses and advances a legitimate preservation purpose, so no regulatory taking occurs.
Eastern Enterprises once operated coal mines. A federal statute requires the company to pay health benefits for retired miners even though it no longer owns the mines. The obligation does not target any specific property interest and functions as a general liability rule rather than an appropriation of property. The statute therefore does not effect a regulatory taking.
Select any source to read its text and confirm it supports the definition.
Florence Dolan owns a plumbing store. The City of Tigard requires her to dedicate a portion of her land for a public greenway and bike path as a condition for expanding the store. The city shows no rough proportionality between the required dedication and the impact of the proposed expansion. The condition therefore effects a regulatory taking.
A church owns a campground destroyed by flood. The county adopts an interim ordinance that temporarily prohibits reconstruction in the canyon. The church cannot resume its prior use during the moratorium. The temporary denial of all use constitutes a regulatory taking requiring just compensation for the period of restriction.
Homeowners own waterfront properties in a declining neighborhood. The city approves a redevelopment plan that imposes severe use restrictions on the lots pending transfer to a private developer. The restrictions leave owners with no reasonable beneficial use during the period of control. The plan therefore effects a regulatory taking.
Chevron operates service stations. A state statute caps the rent Chevron may charge dealers for station leases. Chevron claims the cap effects a regulatory taking by reducing the value of its property interest. The Court evaluates the claim under the multi-factor test rather than a per se rule because the regulation merely adjusts economic returns without appropriating a discrete property interest.
Courts weigh the economic impact of the regulation on the claimant, the extent of interference 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 reasonable beneficial uses are generally upheld.
Supporting sources
No. The Constitution does not guarantee the right to the most profitable use. A taking occurs only when the regulation goes so far in diminishing value and upsetting expectations that it is functionally equivalent to an appropriation.
Supporting sources
A temporary prohibition that denies all use of property for a significant period effects a taking requiring compensation for the duration of the restriction. The analysis focuses on whether the owner is left with any economically viable use during the moratorium.
Supporting sources
…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…