Jeff 2021-2

The first part of my article series (July 31st) touched upon some of the constitutional issues regarding the taking by government of private land.  Article V of the Constitution says, in pertinent part “nor shall private property be taken for public use, without just compensation”.  This says that when private property is taken, government must provide the property owner with just compensation.  It has generated ongoing debates about under what circumstances can government take private property, how to determine just compensation, and when a restriction on the use of property is the same as a physical taking of property.

Two types of land takings that I did not discuss in my first article involve temporary takings and categorical takings.

A temporary taking of land may occur when a town or city invokes a moratorium on a specific land use that is legally permitted before the moratorium goes into effect.  Examples include a certain time period during which no houses can be built, no gravel excavation operations can occur, or no adult entertainment establishments can open.  A municipality uses a moratorium to allow its agencies sufficient time to research the land use under question in order to better create regulations that serve established public concerns of safety, health, and welfare.  A moratorium is a finite, prospective regulation in that it takes effect at a specified date and runs into the future until another specified date.

A moratorium can apply throughout an entire municipality.  It can apply in just certain types of zoning districts.  A moratorium cannot unfairly focus on one company (such as only Walmart, but not Target), one group of people (such as those who live out of town, but not those who live in town), or one part of town (such as residential districts in one area, but not residential districts of the exact same type in another area).  To do otherwise causes a violation of the U.S. Constitution’s Equal Protection clauses.

A moratorium cannot be open-ended.  This would indefinitely prevent a land use that before the moratorium was legally allowed.  This would become an unfair, de facto prohibition of land use without a government agency holding a public hearing and deciding to prohibit outright the type of land use.  This is not to say that after the moratorium ends, a planning and zoning commission may not hold a public hearing and then decide to change the regulations regarding the type of land use.  Rather, a moratorium must have an end date so that the public, including any affected property owners, can have the opportunity to speak on the matter at hand, and learn of whatever research and information has obtained during the moratorium.  Likewise, before a moratorium is enacted, a planning and zoning commission must hold a public hearing so that the public, and especially any affected landowners, can learn of government’s consideration to use a moratorium and to speak to the moratorium itself.

Another way government could cause a temporary taking of land is by conducting a never-ending or very delayed review of a land use application.  So much time could go by before a government agency makes a decision to approve an application, that the property owner is denied extended use of the property and could suffer economic hardship as a result.  This denies the property owner constitutional due process.

This is why there are state statutes that clearly define such time limits.  A planning and zoning commission must hold a public hearing or meeting within a certain period of time once it receives an application, and then must make a decision on the application within another certain period of time.  If a commission fails to act before the statutory deadline, then the land use application is approved by default.  The commission must at all times remain mindful of these time limits.

The U.S. Supreme court has used a set of evaluation criteria to determine if a temporary taking of property has occurred such that government must compensate the property owner: 1.) the economic effects on the owner, 2.) the extent of interference with reasonable investment-backed expectations regarding the property, and 3.) the nature of government’s action.

A different type of a temporary taking is when a regulation is in place that restricts or prohibits a land use, then is repealed at a later time once the regulation is determined to be unlawful or unconstitutional.  During the time that the regulation was in effect, if a court finds a temporary taking of property had occurred, then the property owner is to be compensated.  This type of temporary taking is retrospective in nature. 

If a temporary taking has occurred, then the compensation due the property owner is for the economic loss sustained during only the temporary time period.

Another type of possible property taking is called a categorical taking.  This occurs not when a land use is restricted to some degree by a regulation, but, rather, when the land cannot be used for any economically viable venture at all.  In an important U.S. Supreme Court case (Lucas v. South Carolina Coastal Council), a beachfront property was bought with an intention to build upon it, but at a later time, state law prohibited any building on beach properties in order to protect the shore.  This complete prohibition on use of the land was determined to be a categorical taking of private property.  This is in distinction from a regulatory effect on property that restricts in part, but not in total, the use of it.  For example, beachfront property may have only a one-story house built on it or a structure less than a specified square footage.  The property could still be built upon, and the shore could still be protected.

In the Lucas case, a government land use regulation went into effect after a landowner bought property.  What if a land use regulation prohibiting any use of a certain type of property already is in effect before someone buys land affected by the regulation?  Does a taking of land exist?  The Court has said no, for the straightforward reason that the landowner did not lose any property rights, because when the land was obtained, they had no such legal use of the land for anything other than what the land use regulation allowed at the time of purchase of the land.

Categorical prohibitions on types of property uses are common.  This is not to say they are all formal takings of land.  If taken too far, then any regulation can become so burdensome that it is a taking of private land.  This is why there must be at all times a fair balance of individual private property rights and community public concerns.

Not everything is black and white when it comes to the realities of land use and land use regulations.  This is why the U.S. Supreme Court itself has struggled over the years to define a one-size-fits-all ruling.  Rather, the Supreme Court has chosen to look at the individual aspects of each case, using what it considers to be a set of pertinent factors regarding how it views the Constitution’s Taking Clause.  Even so, the Supreme Court’s opinions have changed over time, reflecting the difficulties in weighing one factor of a case in relation to another when it comes to determining government’s regulatory property prohibitions even if the property is not physically taken.

There are three important points to make regarding any potential claim of a government taking of land.

  • First, the nature of the government action must be rooted in a fundamental purpose of the regulation itself.  Government must show a necessary reason for any regulation, such as serving a defined public purpose and goal (for examples, upholding public safety, health, and welfare).
  • Second, government must show it has acted within its statutory authority.  These provisions protect individual landowners from government because government cannot act without limits and accountability – the Constitution speaks to this concept.
  • Third, if a proposed land use does not meet the legally valid requirements of the regulations, then the application is denied.  However, if the land use is permitted by the regulations, and if the application meets the requirements of the regulations, then the application must be approved.

Land use regulation and decision making is not easy.  It is not meant to be easy given the complex and competing private and public interests involved, and the weighty constitutional issues at play.

In Part 3 of my article series, I will explore with you one last aspect of the Takings Clause: conditions applied to the approval of a land use application that restrict in some manner the use of land or property.

Dr. Jeffrey A. Gordon is Chairman of Woodstock’s Planning and Zoning Commission.  This article does not reflect any official statement of the Commission.  Check out

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