|Under the United States Constitution, a government may not take private property for public use without compensation, whether federal, state, or local. The obvious situation envisioned by this constitutional prohibition is when a government takes privately owned land for a public purpose such as a school, a highway, or a park. However, at least since early in the 20th century, it has been recognized that excessive governmental regulation of land use could deprive a landowner of the value of land in a manner equivalent to a physical taking of the land by the government.
Regulatory action affecting land use does not automatically constitute a taking for which compensation is due the landowner. By longstanding legal principle, landowners have a responsibility to use their land in ways that are not injurious to others. It follows, then, that governments may place certain restrictions on land use to prevent injury to others or to the environment without compensating the landowners. The difficult question that has been posed is at what point regulation is so severe as to constitute a taking for which compensation is required by the Constitution.
The predominant factor in the analysis of whether a regulation constitutes a taking is the extent to which a regulation deprives the affected landowner of the economic value of the land. A regulation that permanently deprives a landowner of all economically viable uses of land has been classified as a per se taking, which requires compensation by the regulating government. A recent example occurred in a case where a landowner paid almost one million dollars for residential beachfront property and the state subsequently passed a law that would prevent all building construction on the land. On the other hand, any deprivation of economic value that falls short of complete deprivation does not generally amount to a taking. Additionally, takings have not been found in most situations in which alternative uses of the land are allowed or where only a portion of the land is affected by the regulation at issue.
Regulations that are intended to protect the environment have been recognized as forwarding a legitimate state interest that do not constitute takings as long as the regulation does not deny the landowner all economically viable uses of the land. In order to obviate the need for compensation, regulations must be sufficiently related to the regulating entity's declared purposes. For example, a regulation preventing timber-cutting is sufficiently related to the purpose of preventing erosion that such regulation is not a taking. In contrast, it is likely that an insufficient connection exists between a regulation preventing residential housing on land and a declared purpose of minimizing air pollution in a certain area and that such regulation would be found to constitute a taking.
A temporary taking may occur when a regulation is promulgated that deprives a landowner of all economically viable use of land and is later revoked. The landowner in such a case is entitled to compensation for the duration of the temporary taking. In contrast, however, it has been held non-permanent development moratoria, under which construction is temporarily frozen in a certain area for the purposes of establishing long-term development strategies and regulations, do not constitute takings because they are not permanent deprivations of all economic value.
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