Also known as: all economically beneficial use · all economically productive use · Lucas total taking · total deprivation of use
Written by attorneys · grounded in primary & secondary sources — see below
A per se regulatory taking under the Takings Clause that occurs when government regulation leaves a landowner with no viable economic use of the property. Total deprivation of this kind is treated like a physical appropriation and requires just compensation unless the prohibited activity was already barred by background principles of nuisance or property law in effect when the owner acquired title.
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Alfred Ashford purchased oceanfront lots intending to build single-family homes. After acquisition the state enacted a regulation barring all construction on the parcels. No preexisting nuisance doctrine had prohibited residential building at the time of purchase. The total elimination of any productive economic activity on the land constitutes a per se taking.
Austin Abbott bought waterfront property for residential subdivision. After purchase the state imposed rules that barred all development. Although Abbott knew of earlier studies, those studies had not ripened into enforceable restrictions. The regulation still denies all economically beneficial or productive use and effects a compensable taking.
Adam Anderson held undeveloped lots subject to a multi-year building moratorium. The restriction prevented immediate construction but allowed development once the planning period ended. Because the regulation did not permanently eliminate all economically beneficial or productive use, it did not trigger the per se rule.
Audrey Ashton operated a coal company required to pay retiree health benefits under federal statute. The obligation was a general liability to transfer money rather than a regulation stripping any specific parcel of all economically beneficial or productive use. The per se taking doctrine therefore did not apply.
Arthur Abrams owned beachfront lots whose dry-sand area was redefined by a state supreme court ruling on accretion. The decision eliminated the owners' claimed right to future accretions without any physical appropriation. Because the change removed an established property interest, it raised a potential judicial taking claim under the same economic-use standard.
Abigail Alvarez owned two adjacent lots that state rules treated as a single parcel for regulatory purposes. One lot could still be used for limited recreation and conservation. The merged parcel therefore retained some economically beneficial or productive use, preventing application of the per se total-taking rule.
A regulation denies all economically beneficial or productive use when it leaves the owner with no viable economic activity on the land comparable to the use for which the property was acquired. Residual low-value options such as seasonal grazing or conservation payments do not prevent a finding of total deprivation if they bear no reasonable relation to the intended productive use.
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…of his property. See Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419. The second is where regulation denies all economically beneficial or productive use of land. See Agins v. City of Tiburon , 447 U.S. 255, 261. The Court has never clarified the "property" interest against which the loss of value is to be measured for purposes of this test. The…
…too far and effects a regulatory taking. First, we have observed, with certain qualifications, that a regulation which "denies all economically beneficial or productive use of land
…Lucas applied—that is, whether a categorical
…as a taking"); Lucas v. South Carolina Coastal Council , 505 U. S. 1003 (1992) (
…it is a taking
Preliminary studies that have not yet become formal restrictions do not qualify as background principles of nuisance or property law. Only enforceable rules existing at acquisition can defeat the per se claim.
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Limited recreational or conservation uses defeat a Lucas claim only if they supply meaningful economic productivity comparable to the owner's intended development. Nominal payments or low-impact activities that fall far short of projected revenues do not restore economic viability.
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If the prohibited use was already barred by longstanding common-law nuisance or property rules in force when the owner acquired title, the regulation does not effect a compensable taking. The restriction must have inhered in the title at acquisition.
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