![]() The only exceptions, the Court explained in Lucas, are for those restrictions that come with the property as title encumbrances or other legally enforceable limitations. The Agins/ Lucas total deprivation rule does not create an all-or-nothing situation, since “the landowner whose deprivation is one step short of complete” may still be able to recover through application of the Penn Central economic impact and “distinct investment-backed expectations” criteria. ![]() This second Agins criterion creates a categorical rule: when, with respect to the parcel as a whole, the landowner “has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” 6 Footnote Lucas v. City of Tiburon, if they do not “substantially advance legitimate governmental interests,” or if they deny a property owner “economically viable use of his land.” 5 Footnote 447 U.S. ![]() Land use controls constitute takings, the Court stated in Agins v. 528, 539 (2005), to the effect that the Penn Central regulatory takings test, like the physical occupations rule of Loretto, “aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Physical invasions falling short of permanent physical occupations remain subject to Penn Central.Ī second per se taking rule is of more recent vintage. Tahoe-Sierra’s sharp physical-regulatory dichotomy is hard to reconcile with dicta in Lingle v. Recently, the Court sharpened further the distinction between regulatory takings and permanent physical occupations by declaring it “inappropriate” to use case law from either realm as controlling precedent in the other. 519 (1992) (no physical occupation was occasioned by regulations in effect preventing mobile home park owners from setting rents or determining who their tenants would be owners could still determine whether their land would be used for a trailer park and could evict tenants in order to change the use of their land). 245 (1987) regulation of the rates that utilities may charge cable companies for pole attachments does not constitute a taking in the absence of any requirement that utilities allow attachment and acquiesce in physical occupation of their property. Teleprompter Manhattan CATV Corp., 458 U.S. The modern case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings although the equipment occupied only about 1½ cubic feet of space on the exterior of each building and had only a de minimis economic impact, a divided Court held that the regulation authorized a permanent physical occupation of the property and thus constituted a taking. 2 Footnote The rule emerged from cases involving flooding of lands and erection of poles for telegraph lines, e.g., Pumpelly v. occupies property (or authorizes someone else to do so), the action constitutes a taking regardless of the public interests served or the extent of damage to the parcel as a whole. ![]() The Court has long recognized a per se takings rule for certain physical invasions: when government permanently 1 Footnote By contrast, the per se rule is inapplicable to temporary physical occupations of land. Penn Central is not the only guide to when an inverse condemnation has occurred other criteria have emerged from other cases before and after Penn Central. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law nor shall private property be taken for public use, without just compensation. Amdt5.5.1.2.4.2 Regulatory Takings: Exceptions to the General Doctrine
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