A Primer for Public Agency Staff
July 2006
Overview
The scene is familiar: local residents become concerned about the accelerated pace of development in an area. At first, not much comes of it. Then, a proposed new subdivision galvanizes the community to action. The planning department updates its planning documents to more effectively manage growth. But then several property owners claim that the policies unlawfully interfere with their constitutionally protected property rights. They threaten to sue for compensation if restrictions are placed on their property.
Now what? This scenario has perplexed more than one group of local officials. But to what extent does land use regulation really amount to an unconstitutional taking of property? That is the subject of this primer.
The short answer is that in most circumstances, a land use regulation does not amount to a regulatory taking. Indeed, most regulations share two general characteristics that make it difficult to mount a successful challenge:
- Regulated Land Nearly Always Retains Economic Uses. As long as land can be put to productive economic use, it retains value and the regulation will not “deny all economic use” of the land. Landowners do not have a right to the most profitable use of land.
- Regulations are Generally Enacted Legislatively. Courts give greater deference to actions that apply broadly to a class of landowners than to unique regulations imposed on individual landowners.
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