Property II

Inverse Condemnation

When the government does not condemn a property and take title of land in eminent domain proceedings but otherwise deprives a property owner's rights in a way that otherwise constitutes a taking, that landowner can initiate an inverse condemnation action to show that his land was taken, get it condemned, and get just compensation therefor.

Taking

Takings can occur when:

  1. The government actually condemns the property and takes title.
  2. The government conducts a permanent physical invasion of the property.
    • When there is a physical invasion of the property, the Supreme Court has consistently held that a taking has occurred, regardless of how small a diminishment in value may result.
  3. Regulatory Taking

    A regulatory taking is where the state effects a taking of land by restricting its use so that the owner is unable to develop a significant portion of it.

    The standard for what constitutes a regulatory taking was established in Penn Central, which said that "economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations" must be balanced against "the character of the governmental action."

    • The economic impact of the regulation on the claimant is determined by comparing the fair market value before and after the regulation.
    • A buyer who purchases land already devoted to a legally permitted use usually has a reasonable investment-backed expectation that the use will continue.
    • Again, when there is a physical invasion of the property, the Supreme Court has consistently held that a taking has occurred, regardless of how small a diminishment in value may result.
    • A regulation is not a taking if it is reasonably related to the public health, safety, or welfare—even if it substantially diminishes the value of the affected land.
    • The impairment must be truly significant to give rise to a taking.
  4. Extractions and Impact Fees
    Extraction
    Impact Fee
    1. Nature
      • Essential Nexus
    2. Extent
      • Rough Proportionality

    Dolan.