Supreme Court Cases:. South Carolina Coastal Council. With total regulatory takings, a given set of regulations have deprived a property of all economic value, leaving it useless for productive means. Property owners who have experienced a total regulatory taking must file an inverse condemnation lawsuit against the entity imposing the regulation to seek to recover the pre-taking fair market value of the property.
Fairly straightforward. The procedure for a partial regulatory taking is similar, with the property owner filing an inverse condemnation claim, but the analysis is more complicated. When we look at partial regulatory takings, three major factors are balanced to determine whether a taking has occurred.
The first is the nature of the governmental regulation. This assessment includes determinations about the social value and location of the activity being limited, as well as numerous other factors related to the prohibited activity—i. The second partial regulatory taking measure is the economic input factor , comparing the value that has been taken and the value which remains post-regulatory taking.
For cases such as these, the court will ask questions like…. Finally, courts will assess the extent to which the regulation interferes with distinct, investment-backed expectations. The main idea behind this third assessment is whether the conditions of the land or property-owner were foreseeable.
When most people think about the government taking private property for public use, eminent domain comes to mind. However, there is still another way in which the government can cause a taking of private property, and that is by …. Regulatory takings arise most often in the context of zoning and land use planning practices by local governments. Zoning regulations and restrictions are used by municipalities to control and direct the development of property within their borders. The primary purpose of zoning restrictions is to divide property within a municipality into zones— residential, commercial or industrial.
How the property within each of these zones can be used developed is restricted according to the zone it is in. As a result, municipal laws and regulations, or changes to those laws, may not take into account the effect that the law may have on private property owners.
In rare instances, the property owner can challenge the ability of the government to take the property under constitutional or statutory law, but those challenges rarely succeed. As you might expect, this can lead to a battle of the expert appraisers. Like any other dispute, depending upon the proclivities of the parties and the distance between their respective views of the value, an eminent domain matter can go the route of either litigation or negotiation or a little bit of both.
Inverse Condemnation. By contrast, inverse condemnation is initiated by the property owner when the government exacts a taking without following the eminent domain procedures. These are often land-use disputes in which a property owner challenges development restrictions.
A taking , however, may not necessarily result from a forced transfer of ownership from the property holder to the government.
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