Government Takings under Land Use Law

11 Jul 2025 --
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Government Takings in Land Use Law

Government takings occur when the government, through regulation or physical action, interferes with private property rights to such a degree that it effectively “takes” the property or its use. Under the Fifth Amendment (applied to states via the 14th Amendment), a taking requires just compensation.

Types of Takings

Physical Taking:

When the government physically occupies or invades private property (e.g., building a public road through your land).

This always requires compensation.

Regulatory Taking:

Occurs when a land use regulation restricts property use so severely that it deprives the owner of all or substantially all economically viable use of the property.

Unlike physical takings, regulatory takings are more complex and fact-specific.

Key Tests and Doctrines

Per Se Taking:

A regulation that denies all economically viable use of property is a taking per se (e.g., a regulation that prohibits any development on your land).

Case: Lucas v. South Carolina Coastal Council (1992).

Penn Central Test:

For partial or less severe restrictions, courts use a multi-factor balancing test from Penn Central Transportation Co. v. New York City (1978):

Economic impact on the owner.

Interference with investment-backed expectations.

Character of the government action.

The more severe the impact, the more likely a taking.

Exactions and Impact Fees:

When the government requires a property owner to give up part of their land or pay fees as a condition of approval, this must have an “essential nexus” and “rough proportionality” to the project’s impact (from Nollan v. California Coastal Commission and Dolan v. City of Tigard).

Otherwise, it could be a taking.

Just Compensation

If a taking is found, the government must pay “just compensation,” typically fair market value of the property or the value of the property interest taken.