Also known as: all economically viable use · economically viable uses · denial of all economically viable use · total taking · Lucas taking
Written by attorneys · grounded in primary & secondary sources — see below
A regulatory-takings concept under which a land-use restriction that leaves the owner with at least one economically viable use of the parcel is not a taking and is instead evaluated under the multi-factor balancing test that weighs economic impact, interference with investment-backed expectations, and the character of the government action.
The city designates Grand Central Terminal a landmark and bars demolition or major alterations that would destroy its historic features. The owner may continue to operate the terminal as a rail hub and lease retail space within the existing structure. Because those ongoing uses generate revenue and remain available, the restriction leaves economically viable uses and does not effect a per se taking.
After a flood, the county enacts an ordinance preventing any construction on church-owned land for several years while it studies new flood controls. The church cannot build a retreat center but retains the ability to use the parcel for open-space recreation and occasional gatherings. Because economically viable uses remain during the temporary restriction, the ordinance does not deprive the owner of all beneficial use.
Select any source to read its text and confirm it supports the definition.
A coastal council enacts rules that prohibit any construction on oceanfront lots previously purchased for residential development. The owner cannot build homes or any other structures and the land has no remaining productive economic use. Because the regulation removes all economically viable uses, it constitutes a per se taking unless the state proves the use was already barred by background nuisance principles.
A state constitution requires a shopping center to allow leafleting on its private sidewalks. The owner may still lease space to retailers, operate the mall, and collect rents from dozens of stores. Because the center retains its core economically viable retail uses, the access requirement does not eliminate all beneficial uses of the property.
A landowner acquires coastal lots and later faces new rules that prevent filling wetlands for a large residential subdivision. The owner may still sell the parcels for conservation credits or limited recreational access. Because those residual uses remain economically viable, the regulation does not deprive the owner of all beneficial use of the land.
A city caps annual rent increases for existing apartments but permits the owner to continue leasing units at controlled rates and to collect ongoing rental revenue. Because the apartments still generate positive cash flow and remain available for their intended residential use, the ordinance leaves economically viable uses intact.
A regulation that deprives an owner of all economically viable uses of land is treated as a per se taking under the Fifth Amendment. Compensation is required unless the prohibited use was already barred by background principles of state property or nuisance law at the time of acquisition.
Supporting sources
Yes. When a regulation preserves reasonable, beneficial uses that generate revenue or allow productive operations, it does not eliminate all economically viable uses. Such restrictions are evaluated under the multi-factor Penn Central test rather than the categorical Lucas rule.
Supporting sources
No. The test focuses on whether any economically viable use remains, not whether the owner can pursue the highest and best use. Continued operation of an existing profitable activity defeats a per se claim even if a more lucrative project is blocked.
Supporting sources
…uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it. The "total taking" inquiry we require today will ordinarily entail (as the application of state nuisance law ordinarily entails) analysis of, among other things, the degree of harm to public lands and…