Can Government Regulation Qualify as an Unconstitutional Taking?


Under the takings clauses of the California and U.S. Constitutions, private landowners have a right to receive just compensation when the government takes their property for public use. But, what type of government actions qualify as a “taking” of private property? This blog explains how land use laws and regulations can qualify as a “regulatory taking” for which private landowners are constitutionally entitled to receive a legal remedy.

Land Use Regulations as Takings

Landowners can sue the government for inverse condemnation if a law, regulation, or ordinance deprives them of virtually all beneficial use of their property. Thus, a law or regulation – such as zoning laws – that leaves a landowner with only some economically beneficial use of their property can still successfully sue for inverse condemnation.

Courts analyze the following factors when determining if a law or regulation is a taking:

  • The economic impact of the regulation on the landowner;
  • The extent to which the regulation interfered with the landowner’s distinct investment-backed expectations; and
  • The character of the regulation.

Even if the law or regulation had been in effect before the landowner’s purchase of the property, it might still qualify as a violation of the takings clause. However, if the sole effect of a land use regulation is the diminution in the property’s fair market value, the landowner cannot successfully make an inverse condemnation claim on that basis.

Land Development Regulation

When government regulation precludes a landowner from developing a substantial portion of their land, the government may be liable for inverse condemnation even though the developer could still benefit economically from the developed parts of the property.

However, when the government prohibits a landowner from developing a substantial portion of their land for only a reasonable amount of time to protect public safety, it is not liable to the landowner for inverse condemnation. For example, a California court held that a temporary flood control ordinance that prevented a landowner from developing buildings in a flood zone for two years did not qualify as a regulatory taking.[1]

Need Advice Regarding Land Regulation?

Whether you are an individual homeowner or a major land developer, a law that deprives you of the economically beneficial use of your property without compensation might violate your constitutional right to due process. That is why you need to call an experienced California eminent domain attorney for legal advice. At Allen, Semelsberger & Kaelin, LLP our sophisticated understanding of California’s eminent domain can help you determine what your constitutional rights and options are regarding government actions regarding the use or development of your real property.

For more information, call us at (888) 998-2031 or contact us online today to arrange a free initial case evaluation regarding your available legal options.

[1] First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 210 Cal.App.3d 1353, 1373 (1989).