Land UsePotential Creation of Land Use Restrictions as Regulatory Takings

March 11, 20200

Say your town enacted a regulation that affects your property, by either occupying part of it or creating new land use restrictions, without justification. Are they allowed to do that, and if so, do they have to compensate you for it?

The Takings Clause

The Fifth Amendment Takings Clause of the United States Constitution applies to the states as well through the Fourteenth Amendment. It prohibits government from taking private property without just compensation. If, for example, the government physically, permanently occupies the land (also known as eminent domain), they would have to compensate you for the land taken.

However, a grey area exists where a regulation by the government amounts to less than physical and permanent occupation. If the occupation still “affects and limits” the property’s use to such an extent that it creates land use restrictions it would be considered what’s called a regulatory taking (sometimes in the form of creating land use restrictions). Courts first look to the Lucas test to see whether the state regulation “denies all economically beneficial or productive use of the land.” If it has, the action is a regulatory taking.

If the action does not meet the Lucas test, it could still be a regulatory taking. The regulation may still meet the standard set out in Penn Central. This standard  is “a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.” Palazzolo v. Rhode Island, 533 U.S. 606, 617-18 (2001).

The U.S. Supreme Court has heard a number of cases relates to regulatory takings by creation of land use restrictions. These cases give examples of what government regulations/actions have and have not risen to the level of a taking, and determine when a government must compensate for those takings.

Local Considerations

Given that the framework for determining whether a regulatory taking has occurred is complicated and multi-faceted, you should seek out the advice of attorney with experience in property law, particularly with land use restrictions and takings. In Rhode Island, takings cases are often intertwined with environmental issues. For example, the Palazzolo case concerned a large area of wetlands in Westerly.

As a current example, members of the Rhode Island House of Representatives introduced a bill this week that attempts to better define the line between the public shore and private property as 10 feet landward of the most recent high tide line (ascertainable by sand lines and where the seaweed is pushed to). Those engaged in the state’s constitutionally protected activities could not be charged with trespass. This regulation comes from several incidents, including recently when a Charlestown man was arrested last year for trespassing while collecting seaweed (one of the protected activities, interestingly enough).

That proposed regulation will almost certainly experience backlash in the form of claims that the regulation would amount to a taking. Many littoral property owners believe that much of that area is their private land and would likely argue this new regulation imposes land use restrictions by forcing them to allow the public onto their land. In these instances where environmental issues are part of the overall case, an attorney additionally equipped with environmental law knowledge is essential!

We’re more than happy to meet with potential clients to discuss the issues surrounding government regulatory takings. Call us to speak with attorneys who understand both takings and environmental concerns at 401.477.0023 today.

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