The Taking of Planned Growth

Local governments that exercise eminent domain to accomplish planned growth may be challenged for taking. There is a taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property. To constitute a taking within Constitutional limitations it is not essential that there be physical seizure or appropriation, and any actual or material interference with private property rights constitutes a taking.

Taking of property is triggered if application of zoning law denies a property owner of economically viable use of his or her land, which can consist of preventing best use of land or extinguishing fundamental attribute or ownership. Takings triggers Fifth Amendment (just compensation) and Fourteenth Amendment (equal protection of the laws) challenges. The case law has evolved into requiring timing and sequencing to correspond with Constitutional principles of due process, equal protection, substantive due process, and the Takings Clause.

In relation to urban growth and growth policies, the takings issue is essentially the challenge posed to government to meet the legal requirements of “reasonable use” over a “reasonable period of time” when prohibiting development. Meeting the tests of reasonable use and reasonable period of time are posed against other legal tests.

Reasonableness is determined against the substantial advancement test which balances government interests and the economic impact of the regulation. Upon determining the weight of the government interest, this weight is then tested against the nature of the government’s actions and the “reciprocity of advantage” conferred by the ordinance. The lesser the relationship of the required facilities to public health or safety, the lesser the deprivation allowed before the regulation is invalidated.

The determination of whether a landowner has been deprived of all reasonable use of his/her property focuses on the economic impact of the regulation and the extent to which the landowner’s distinct investment backed expectations have been defeated. If the landowner is not deprived of all use of his/her land, then there is remaining use. Whether remaining use is reasonable or unreasonable is set against yet another test: economic impact of regulation versus the extent to which the landowner’s distinctive investment-backed expectations have been defeated.

In sum, taking is a reflection of the reasonableness of time (duration), the reasonableness of scope (purpose), and the reasonableness of use (land value). If there is no taking, then just compensation is not due.