Agency or local government staff must use the following questions in reviewing the potential impact of a regulatory or administrative action on specific property. While these questions also provide a framework for evaluating the impact proposed regulations may have generally, takings questions normally arise in the context of specific affected property. The public review process used for evaluating proposed regulations is another tool that the agency or local government should use aggressively to safeguard rights of private property owners. If property is subject to regulatory jurisdiction of multiple government agencies, each agency or local government should be sensitive to cumulative impacts of the various regulatory restrictions.
Although a question may be answered affirmatively, it does not mean that there has been a “taking”. Rather it means there could be a constitutional issue and that the proposed action should be carefully reviewed with legal council.
(A) Does the regulation or action result in a permanent or temporary physical occupation of private property?
Regulation or action resulting in a permanent or temporary physical occupation of all or a portion of private property will generally constitute a “taking”. For example, a regulation that required landlords to allow the installation of cable television boxes in their apartments was found to constitute a “taking”. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 S. Ct. 3164 (1982).
(B) Does the regulation or action require a property owner to dedicate a portion of property or to grant an easement?
Carefully review all regulations requiring the dedication of property or grant of an easement. The dedication of property must be reasonably and specifically designed to prevent or compensate for adverse impacts of the proposed development. Likewise, the magnitude of the burden placed on the proposed development should be reasonably related to the adverse impacts created by the development. A court also will consider whether the action in question substantially advances a legitimate state interest.
For example, the United States Supreme Court determined in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141 (1987), that compelling an owner of waterfront properly to grant a public easement across his or her property that does not substantially advance the public’s interest in beach access, constitutes a “taking”.
Likewise, the United States Supreme Court held that compelling a property owner to leave a public green way, as opposed to a private one, did not substantially advance protection of a floodplain, and was a “taking”. Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994).
(C) Does the regulation deprive the owner of all economically viable uses of the property?
If a regulation prohibits all economically viable or beneficial uses of the land, it will likely constitute a “taking”. In this situation, the agency can avoid liability for just compensation only if it can demonstrate that the proposed uses are prohibited by the laws of nuisance or other pre-existing limitations on the use of the property. See Lucas v. South Carolina Coastal Conn., 505 U.S. 1003, 112 S. Ct. 2886 (1992).
Unlike (A) and (B) above, it is important to analyze the regulations impact on the property as a whole, and not just the impact on a portion of the property. It is also important to access whether there is any profitable use of the remaining property available. See Florida Rock Industries. Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994). The remaining use does not necessarily have to be the owner’s planned use, a prior use, or the highest and best use of the property. One factor in this assessment is the degree to which the regulatory action interferes with a property owner’s reasonable investment-backed development expectations.
Carefully review regulations requiring that all of a particular parcel of land be left substantially in its natural state. A prohibition of all economically viable uses of the property is vulnerable to a takings challenge. In some situations, however, there may be pre-existing limitations on the use of property that could insulate the government from takings liability.
(D) Does the regulation have a significant impact on the landowner’s economic interest?
Carefully review regulations that have a significant impact on the owner’s economic interest. Courts will often compare the value of property before and after the impact of the challenged regulation. Although a reduction in property value alone may not be a “taking”, a severe reduction in property value often indicates a reduction or elimination of reasonably profitable uses. Another economic factor courts will consider is the degree to which the challenged regulation impacts any development rights of the owner. As with division (C) above, these economic factors are normally applied to the property as a whole.
A moratorium as a planning tool may be used pursuant to Idaho Code § 67-6523 – Emergency Ordinances and Moratoriums (written findings of imminent peril to public health, safety, or welfare; may not be longer than 120 days); and Idaho Code § 67-6524 – Interim Ordinances and Moratoriums; (written findings of imminent peril to public health, safety, or welfare; the ordinance must state a definite period of time for the moratorium). Absence of the written findings may prove fatal to a determination of the reasonableness of the government action.
The Idaho moratorium provisions appear to be consistent with the United States Supreme Court’s interpretation of the moratorium as a planning tool as well. In Tahoe-Sierra Preservation Council. Inc. et al. v. Tahoe Regional Planning Agency et al., (Slip Opinion No. 00-1167, April 23, 2002); the Court held that planning moratoriums may be effective land use planning tools. Generally, moratoriums in excess of one year should be viewed with skepticism, but should be considered as one factor in the determination of whether a taking has occurred. An essential element pursuant to Idaho law is the issuance of written findings in conjunction with the issuance of moratoriums. See Idaho Code §§ 67-6523 to 67-6524.
(E) Does the regulation deny a fundamental attribute of ownership?
Regulations that deny the landowner a fundamental attribute of ownership, including the right to possess, exclude others, and dispose of all or a portion of the property, are potential takings.
The United States Supreme Court recently held that requiring a public easement for recreational purposes where the harm to be prevented was to the floodplain was a “taking”. In finding this to be a “taking”, the Court stated:
The city never demonstrated why a public greenway, as opposed to a private one, was required in the interest of flood control. The difference to the petitioner, of course, is the loss of her ability to exclude others.... [T]his right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994).
The United States Supreme Court has also held that barring the inheritance (an essential attribute of ownership) of certain interests in land held by individual members of an Indian tribe constituted a “taking”. Hodel v. Irving, 481 U.S. 704 S. Ct. 2076 (1987).
(F) Does the regulation serve the same purpose that would be served by directly prohibiting the use or action; and does the condition imposed substantially advance that purpose?
A regulation may go too far and may result in a takings claim where it does not substantially advance a legitimate governmental purpose. Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141 (1987), Dolan v. City of Tigard. 512 U.S. 374, 114 S. Ct. 2309 (1994).
In Nollan, the United States Supreme Court held that it was an unconstitutional “taking” to condition the issuance of a permit to land owners on the grant of an easement to the public to use their beach. The Court found that since there was no indication that the Nollan’s house plans interfered in any way with the public’s ability to walk up and down the beach, there was no “nexus” between any public interest that might be harmed by the construction of the house and the permit condition. Lacking this connection, the required easement was just as unconstitutional as it would be if imposed outside the permit context.
Similarly, regulatory actions which closely resemble, or have the effects of a physical invasion or occupation of property, are more likely to be found to be takings. The greater the deprivation of use, the greater the likelihood that a “taking” will be found.
(Ord. 2007-8-13, passed 3-11-2019
; Am. 2-28-2022)