Also known as:takings claim · takings-clause claim · takings clause claim · regulatory takings · eminent domain claim
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
1
A constitutional claim asserting that government regulation has gone too far in diminishing property value or interfering with investment-backed expectations without just compensation. Courts apply a multi-factor test that weighs economic impact, interference with distinct expectations, and the character of the government action.
2
Sense 1
1
Sense 1
A constitutional claim asserting that government regulation has gone too far in diminishing property value or interfering with investment-backed expectations without just compensation. Courts apply a multi-factor test that weighs economic impact, interference with distinct expectations, and the character of the government action.
Sources & Authorities· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Sense 2
2
Sense 2
A constitutional claim asserting that government action has effected a physical appropriation of private property without just compensation.
Sources & Authorities· 1 primary source
Select any source to read its text and confirm it supports the definition.
A constitutional claim asserting that government action has effected a physical appropriation of private property without just compensation.
Each sense below has its own examples, sources, and questions.
Examples3
Historic Designation Leaves Viable Uses
Aurora Energy owns a riverside power plant that the State Heritage Council designates as a protected industrial site. The designation bars demolition and major exterior changes but allows continued smaller-scale generation and solar leasing on the roof and yard. Aurora sues claiming a regulatory taking. The court finds no compensable taking because the regulation advances a legitimate preservation purpose and leaves the owner with reasonable beneficial economic uses.
Coastal Ban Eliminates All Value
Theresa Tucker buys two beachfront lots intending to build single-family homes. A new state statute bars all permanent structures on the lots to protect the dunes. Tucker sues claiming a total deprivation of economic value. The court finds a categorical taking because the regulation leaves the parcels without any economically beneficial use.
Lucas v. South Carolina Coastal Council505 U.S. 1003 (1992)
Temporary Development Moratorium
Tessa Takahashi owns shoreline lots subject to a multi-year regional planning moratorium on all development. She sues claiming the delay constitutes a total taking of her property. The court rejects the claim because the moratorium is temporary and does not deprive the owner of all economically viable use for the parcel's entire useful life.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency535 U.S. 302
Frequently Asked2
What factors does a court weigh in a regulatory takings claim?+
A court applies a three-factor test that examines 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 not compensable takings.
Supporting sources
Does a post-enactment purchaser lose the right to bring a takings claim?+
No. A property owner who acquires land after a regulation has been enacted is not barred from bringing a takings claim. The right to claim a taking is not limited to owners who held title when the restriction was first imposed.
Supporting sources
3
City Demands Dedication For Permit
Travis Tate seeks a building permit to expand his hardware store. The city conditions approval on Tate dedicating a strip of his land for a public bike path and floodplain easement. Tate refuses and sues after the permit is denied. The court holds that the demanded dedication lacks an essential nexus and rough proportionality to the proposed development and therefore effects an unconstitutional condition amounting to a taking.
Florence Dolan, Petitioner v. City of Tigard, Respondent512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304
Eminent Domain For Redevelopment
TechVista Solutions owns several parcels in a declining downtown district. The city condemns the parcels as part of an integrated economic redevelopment plan and transfers title to a private developer for a mixed-use project. TechVista sues alleging the taking lacks a public use. The court upholds the condemnation because the plan serves a legitimate public purpose of economic revitalization even though title passes to another private party.
Kelo, et al. v. City of New London545 U.S. 469, 503 (2005)
Permit Condition Requires Easement
Thomas Thompson applies to rebuild a beach house. The coastal commission grants the permit only if Thompson dedicates a lateral public-access easement across his dry-sand area. Thompson accepts under protest and later sues. The court holds that the easement condition effects a taking because it lacks an essential nexus to the impact of the proposed construction.
Nollan v. California Coastal Commission483 U.S. 825, 834 (1987)
Frequently Asked2
When does a compelled physical transfer of personal property constitute a per se taking?+
A government order that requires an owner to surrender specific items of personal property to a government-controlled pool effects a per se taking even if the owner retains a contingent claim to future proceeds. The Takings Clause protects personal property and requires compensation for such physical appropriations.
Supporting sources
Does a recurring right of physical access granted to third parties trigger per se takings analysis?+
Yes. An ordinance that grants third parties a recurring, scheduled right to enter private property appropriates an easement-like interest and constitutes a per se physical taking regardless of the limited duration of each visit. The owner need not prove substantial diminution in market value.
Supporting sources
505 U.S. 1003 (1992)Property
…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…