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Regulatory Taking: When and What You Can Do

When A Regulatory Taking Exists

A regulatory taking exists when a government regulation is so burdensome and restrictive as to what an owner may do with his property that the government has essentially “taken” the property. Restrictions on land use are prominent when the property is a historic structure. Local governments seeking to preserve the cultural heritage located within their borders often institute zoning laws aimed to specifically narrow what actions an owner can take with respect to his historical property. Aggrieved landowners may seek compensation for the taking from the government.

Each case must be examined on its own merits to determine whether justice and fairness require the government to compensate the landowner for the “taking.” Takings case law is complex and given to varying interpretations. However, the United States Supreme Court has established three factors that should be examined in determining whether a taking has occurred: 1) the regulation’s economic impact, 2) the landowner’s investment-backed expectations, and 3) the nature of the governmental action. When the landowner has been deprived of all economically viable use of his property, it is presumed that a taking has occurred. Finally, there must be a nexus between the regulation itself and the purpose of the regulation.

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