Complete or Partial Takings

Question 1

What is the two part test for a regulatory taking?

Answer 1

• Two part test in assessing regulatory takings:
1) The economic impact of the regulation on the claimant
§ specificallythe extent to which the regulation has interfered with distinct investment-backed expectations.
§ recently morphed from“distinct” to “reasonable”
2) Character of governmental action - rationale for the regulation is based public safety, benefit to the government. Rational based on public welfare, benefit to the landowner.

Question 2

What is the rule when for total takings under Lucas?

Answer 2

Where government regulations completely deprive a landowner of“all economically beneficial use”of the land, government must pay compensation for a total regulatorytaking exceptto the extent nuisance or thebackgroundprinciples of a State’s law of property already restrict the landowner’s intended use.

Question 3

What are the two exceptions to compensation requirement for a total regulatory taking?

Answer 3

1) Nuisance - if a landowner uses his property in such a way as to post a nuisance to the public.
2) Background principles of state property law - could be an older statute; what does the landowner know/expect when he purchases the landin regards to state land use. Must have been there for a while and not newly enforced.
§ Public Trust Doctrine
§ Custom