Regulatory Taking Analysis

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  1. Regulatory Taking Analysis
    Per Se Rules

    Rules of Reason/Multifactor Test
  2. Per Se Rules
    If none of per se rules apply, then look at multifactor test.

    • Ask: Physical occupation permanent or temporary?
    • Perm = Taking
    • Temp = Multifactor Balancing Test

    • Nuisance Abatement
    • - Nuisance Control - Not a taking
    • - If wasn't nuisance before, but now is doesn't escape liability

    • Complete Wipeout
    • - Complete wipeout of value depriving land of beneficial use
    • - Land Use Regs prohibiting all economic use are takings unless common law nuisance
  3. Multifactor Test
    • Percentage of Diminution in Land Value:
    • - 0-94% not taking
    • -94-99% may or may not be taking

    • Investment Backed Expectations
    • - Extent to which regulation interferes with reasonable investment-backed expectations
    • - Looks at what efforts have been made and documentation to see what expectations of use were

    • Character of Government Regulation
    • - Temporary or permanent?
    • - Permanent = taking
    • - Temporary does not = 100% wipeout so not a taking
Card Set:
Regulatory Taking Analysis
2010-08-12 04:12:57
Regulatory Taking Property

Regulatory Taking Analysis
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