What is a regulatory taking? [No. 86]
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What is a regulatory taking? [No. 86]


The takings clause says private property should
not be taken for public use without just compensation. It’s not obvious how that applies to regulations. The takings clause has four separate moving
parts. Courts have to ask first whether the person
who claims he suffered a taking has private property, and then whether the government
did something that took the property. Then whether the property was taken for public
use then the court has to measure just compensation. The paradigm example of a taking occurs when
a government says, “We’re going to use eminent domain and institute a proceeding
to condemn your property.” Regulatory takings law is the body of law
that asks whether a law or a government act that on paper is not eminent domain has the
effect of eminent domain, because it effectively condemns a party’s use rights. Regulatory takings cases often deal with challenges
to laws that enforce scenic restrictions or aesthetic restrictions. Legislative majorities in states like zoning
and they like environmental conservation laws, and those kinds of laws require us all to
sacrifice some land uses for the common good, and because these laws deserve some benefit
of the doubt, landowners can’t insist on doing anything they want on their own land. The owner is saying, “But I had a right
under common law of nuisance and other common law to use that in a certain way, and your
order that I not use it is depriving me of common law rights.” A state or local government will say, “You
don’t suffer taking in these cases, because you still keep your title, and you keep the
right to exclude others. What we do to restrict your use of your property
is a separate package.” Zoning keeps things orderly and stable in
the neighborhoods, keeps their home values secure and stable, because everybody is secure their
neighbors are not going to do something crazy and different with their land. The public uses or enjoys or benefits from
the absence of development along the stream by getting the benefit of more diverse wildlife
or having a pretty scenic area along the stream.

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