(46) Suppose then that A owns a parcel of land at time t1, that the government regulates it to the point of a permanent wipeout at t2, and that B takes title from A at t3 and thereafter brings suit challenging the regulation as a categorical taking
. It might seem that B has no grounds to claim a taking given that B had at least constructive notice of the regulation at the time of purchase.
The first is a categorical taking
, where the owner is deprived of all "beneficial or productive use of the land." A plaintiff must prove that the property is unsuitable for use as zoned or unmarketable as zoned.
Absent a categorical taking
, (111)most regulatory claims are "a question of degree--and therefore cannot be disposed of by general propositions." (112) Thus, there is no "set formula to determine where regulation ends and taking begins." (113)
If a landowner fails to establish a categorical taking
. But, "defining the property interest taken in
DISAGREE = auditor-client disagreement reported in Form 8-K filing of auditor-client realignment (0,1: categorical taking
on values of 1 if reported, 0 otherwise);
(122) The Ninth Circuit noted that because the regulation was only temporary in nature, the moratoria only partially affected the petitioner's property interest, and thus did not meet the "total" deprivation of value required to constitute a categorical taking
'The per se analysis, on the other hand, assumes that for certain types of property interests, governmental acquisition amounts to a categorical taking
under any circumstance.
In Tahoe-Sierra, the United States Supreme Court issued a 6-3 decision holding that a 32-month development moratorium, adopted by the Tahoe Regional Planning Agency (TRPA) while it crafted a regional plan in the 1980s, was not a "categorical taking
" under the Fifth Amendment of the U.S.
Issue #1: Do Regulations that Effect a Temporary Deprivation of All Economically Beneficial Use of Land Constitute a Categorical Taking
The court said government action that deprives property owners of all productive use of their property or physically invades property boundaries is often determined to be a per se or categorical taking
. If a government regulation is not considered a per se taking, the court said it also must consider whether a regulatory taking has occurred by considering three different factors: the severity of the economic impact on the takings claimant; the extent to which the regulation interferes with investment-backed expectations; and the character and benefits of the government regulation.