Regulatory Takings are the most common inverse condemnation situation and arise when a government entity passes some type of regulation that restricts a property owner’s ability to use their property. The common term for this is zoning. In the past few decades, zoning ordinances have started to encroach more and more on property owners, consequently restricting and changing the way they can use their property. Fortunately for property owners, the courts allow landowners to take legal action if this occurs. If a new zoning ordinance restricts the use of property so significantly that it effectively takes the property from the property owner, or if the ordinance takes the use of the property away from the owner, then the property owner has the right to pursue an inverse condemnation claim to initiate the eminent domain process.
There are two standard tests that have been established by the US Supreme Court with regards to regulatory takings:
1. Lucas Test: If the regulation takes away all the use for that property, a total taking – or a Lucas taking – has occurred. If a property owner has a Lucas taking, he or she is entitled to the entire value that property had before the regulation was imposed.
2. Penn Central Test: Under the Penn Central Test, a partial taking has taken place. With a Penn Central taking, the owner still has some use to the property after the regulation is imposed, but the use has been so severely restricted that it causes the value of property to decrease significantly. If this occurs, a property owner has a valid regulatory taking claim.
This area of the law is very complicated and complex and typically involves some of the more sophisticated areas of litigation in eminent domain law. Therefore, it’s important to consult with and hire an experienced eminent domain attorney to assist you with your claim .
Unreasonable Government Delay Regulatory takings also include unreasonable government delay when a landowner seeks government approval to develop or use a piece of property in a certain way. This occurs when the government creates road blocks or simply refuses to act on a permit or application to do something. This is often referred to as an administrative delay and could constitute the basis for an inverse condemnation action and allows landowner to recover damages.
Rarely will a condemning authority fail to declare a taking and institute proper eminent domain procedures when taking physical property. However, it is not uncommon for contractors to inadvertently exceed the right of way lines when constructing a project or for engineers to divert water to one property under the opinion that it would not effect your property. There may also be changes in access which could also give rise to an inverse condemnation claim.