689:, 447 U.S. 255 (1980). In Agins the Court stated that the application of land-use regulations to a particular piece of property is a taking when it denies the land's owner reasonable, viable use of it, or "if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land." After landowners had acquired 5 acres (20,000 m) of unimproved land in a city for residential development, the city was required by California law to prepare a general plan governing land use and the development of open-space land. In response, the city adopted zoning ordinances that placed the owners' property in a zone in which property may be devoted to one-family dwellings, accessory buildings, and open-space uses, with density restrictions permitting appellants to build between one and five single-family residences on their tract. The city expressed its intention to acquire the Agins parcel for open space, and actually commenced condemnation proceedings to take title to it. Later, the city abandoned the condemnation, and adopted the ordinance in issue. Without having sought approval for development of their tract under the ordinances, appellants brought suit against the city in state court, alleging that the city had taken their property without just compensation in violation of the Fifth and Fourteenth Amendments. The California Supreme Court departed from long-standing California precedent and held that monetary compensation was not available in regulatory taking cases which the court refused to recognize. That holding was eventually overruled by the U.S. Supreme Court a few years later in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
951:, 512 U.S. 374 (1994) the Court evaluated further the degree of the connection required between permit conditions and impacts caused by a development. In that case, a business owner sought to expand a plumbing supply store on property adjacent to a floodplain and sought to pave more parking spaces for the store. The City of Tigard, Oregon, conditioned the building on the owner creating a public greenway and building a bike path on the land. The City justified the conditions as necessary to prevent flooding and traffic congestion. The Supreme Court ruled that the city's requirement would be a taking if the City did not show that there was a reasonable relationship between the creation of the greenway and bike path and the impact of the development. Moreover, such an exaction had to be roughly proportional to the impact. "Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred," the Court held. "Such public access would deprive petitioner of the right to exclude others, "one of the most essential sticks in the bundle of rights that are commonly characterized as property."
795:
with each generation a parcel's ownership could be divided up between more and more heirs, making it extremely difficult to put the property to economic use. To solve this problem, Congress passed the Indian Lands
Consolidation Act, stopping interests in land constituting less than 2% of the total ownership from being further divided up through a will or by intestate succession (property that passes without a will upon the death of the owner). Instead such interests would become property of the tribes. In Hodel v. Irving, 481 U.S. 704 (1987), the Supreme Court held that a "complete abolition of both the descent and devise of a particular class of property may be a taking." It found that even though only a single strand of the property was affected, it was nevertheless an uncompensated taking that violated the Fifth Amendment. There was some disagreement among the concurring justices whether this decision affected Andrus, with Justices Rehnquist, Scalia and Powell finding it limited Andrus to its facts, while Justices Brennan, Marshall and Stevens opined that Andrus was unaffected. In 1997, the Court found a successor statute similarly unconstitutional as an uncompensated taking in Youpee v. Babbit, 519 U.S. 234 (1997).
737:" commonly characterized as property. The Court considered a New York statute which required landlords to install CATV cable facilities on the roof of their buildings; the facilities were part of a citywide cable network designed to bring cable services to the entire city. The landlords were required to provide a location for 6 feet (1.8 m) of cable one-half inch in diameter and two 4 in × 4 in × 4 in (100 mm × 100 mm × 100 mm) metal boxes at a one-time charge determined by the Cable Commission at $ 1. The City argued that the Court should apply a balancing test—that the invasion of property was minimal in comparison to the community wide benefit. But the Court's decision suggested that there was a per se rule requiring compensation in cases of this kind. In short, when the "character of the governmental action, is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner."
570:
watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the constitution as a restraint upon the powers of the states only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, and property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of the provision as found in the fourteenth amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.
822:, intending to build single-family homes such as those on the immediately adjacent parcels. At that time, Lucas's lots were not subject to the State's coastal zone building permit requirements. In 1988, however, the state legislature enacted the Beachfront Management Act, which barred Lucas from erecting any permanent habitable structures on his parcels. He filed suit against respondent state agency, contending that, even though the Act may have been a lawful exercise of the State's police power, the ban on construction deprived him of all "economically viable use" of his property and therefore effected a "taking" under the Fifth and Fourteenth Amendments that required the payment of just compensation. The court further clarified, however, that a regulation is not a taking if it is consistent with "restrictions that background principles of the State's law of property and nuisance already placed upon ownership." As an example of "background principles," the court referred to the right of government to prevent flooding of others' property. The Court noted:
676:, supra. In the instant case, it is not clear that appellees will be unable to derive economic benefit from the artifacts; for example, they might exhibit the artifacts for an admissions charge. At any rate, loss of future profits – unaccompanied by any physical property restriction – provides a slender reed upon which to rest a takings claim. Prediction of profitability is essentially a matter of reasoned speculation that courts are not especially competent to perform. Further, perhaps because of its very uncertainty, the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests. Cf., e. g., Fuller & Perdue, The Reliance Interest in Contract Damages (pt. 1), 46 Yale L. J. 52 (1936).
764:, 474 U.S. 121. The Corps issued regulations construing the Act to cover all "freshwater wetlands" that are adjacent to other covered waters. These regulations defined the adjacent wetlands as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions." Riverside Bayview Homes, Inc., began placing fill materials on its property near the shores of Lake St. Clair, Michigan. A Circuit Court of Appeals rejected the Corps' interpretation, and suggested that the regulation would create a taking without just compensation in violation of the Fifth Amendment.
628:"Thus, in order to protect the health and safety of the community, government may condemn unsafe structures, may close unlawful business operations, may destroy infected trees, and surely may restrict access to hazardous areas – for example, land on which radioactive materials have been discharged, land in the path of a lava flow from an erupting volcano, or land in the path of a potentially life-threatening flood. When a governmental entity imposes these types of health and safety regulations, it may not be 'burdened with the condition that must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.'"
827:"prevents harmful use" and that which "confers benefits" is difficult, if not impossible, to discern on an objective, value-free basis; and that, therefore, noxious-use logic cannot be the basis for departing from this Court's categorical rule that total regulatory takings must be compensated. ... Although it seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on Lucas's land, this state-law question must be dealt with on remand. To win its case, respondent cannot simply proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as
697:
York City, 438 U.S. 104, 138, n. 36 (1978). The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Although no precise rule determines when property has been taken, see Kaiser Aetna v. United States, 444 U.S. 164 (1979), the question necessarily requires a weighing of private and public interests. In this case, the law confers a reciprocal benefit: it benefits all landowners, serving the city's interest in assuring careful and orderly development of residential property with provision for open-space areas.
872:" for review by the Courts. The central question, the Court found, was whether the plaintiff had obtained a final decision from the Council determining the permitted use for the land. A number of previous cases had established "the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation:A final decision does not occur until the responsible agency determines the extent of permitted development on the land. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351. But the landowner
782:, 452 U.S. 264 (1981). A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself "take" the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. "quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to a taking."
1070:, the Supreme Court ruled that takings law does not divide property into discrete segments. Thus, the property interest in question during a taking case is the whole parcel of land and not a discrete sliver of it. This gave rise to the question of what is the "denominator" of the ownership fraction; i.e., what is the larger ownership whose part is being subjected to confiscatory regulation, since the regulatory taking of a part of it (the "numerator") is not compensable.
519:" Moreover, the Court had held that an act compelling holders of contracts that called for payment in gold or silver to accept as legal tender "mere promises to pay dollars" was unconstitutional because it deprived "such persons of property without due process of law" under the Fifth Amendment. The Court until this time had rarely found an act of Congress unconstitutional. In 1871, the Court, with two new justices on the bench, reversed itself in the legal tender cases,
1054:. These are physical invasion (as in Loretto Teleprompter), denial of all economically viable private property uses (as in Lucas), or requiring the owners to dedicate some of their property to the government without a justifying reason for so doing (as in Nollan, Dolan and Koontz). For example, when the owners' proposed land use will result in a significant increase in traffic they may be required to dedicate a strip of their land to improve an adjacent road.
532:
been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals. A new tariff, an embargo, a draft, or a war may inevitably bring upon individuals great losses; may, indeed, render valuable property almost valueless. They may destroy the worth of contracts. But whoever supposed that, because of this, a tariff could not be charged, or a non-intercourse act, or an embargo be enacted, or a war be declared?
933:
ocean" caused by construction of the larger house. The Court observed that requiring a dedication of private property in exchange for a building permit was "an out-and-out plan of extortion" unless it could be shown that the private development imposed a burden on public facilities or resources, and the dedication would mitigate such impact. This became known as the "essential nexus" between a legitimate state interest and the permit condition.
185:
landowners argued that the right to cause surface collapse was not property. The deed provided that the grantee takes the premises with that risk and waives all claim for damages that may arise from mining out the coal. The coal company essentially owned a property right to mine as much as it wished. Over a dissent by
Justice Brandeis, the court ruled that Pennsylvania's statute deprived the coal companies of the right to mine their coal.
1089:
amicus briefs in virtually all the major regulatory takings cases at the
Supreme Court as well as in a number of appellate courts. While the property rights advocacy organizations generally argue for greater protections for property rights, and compensation when those rights are taken, the conservation-oriented entities argue that government owes no compensation when it regulates to promote public health, safety and conservation values.
745:
extinguishers, and the like in the common area of a building." These provisions merely ensure tenants access to services the legislature deems important, such as water, electricity, natural light, telephones, inter-communication systems, and mail service. The majority opinion distinguished such requirements because they "do not require the landlord to suffer the physical occupation of a portion of his building by a third party."
590:... he character of the governmental action involved here leans heavily against finding a taking; the Commonwealth of Pennsylvania has acted to arrest what it perceives to be a significant threat to the common welfare. here is no record in this case to support a finding, similar to the one the Court made in Pennsylvania Coal, that the Subsidence Act makes it impossible for petitioners to profitably engage in their business. ...
2522:
986:, The plaintiff sought permission to build a 3.7 acre shopping center on 14.9 acres of property, much of which was wetlands. The Water District agreed to provide the permit so long as Koontz dedicate 11 acres and spend money fixing up the drainage on district property several miles away. Koontz sued, not over the dedication of the land but over the requirement that he spend money on district property. The
171:, writing for the majority of the court, stated that "he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Before the court, was a Pennsylvanian law that forbade all mining under inhabited land. The Court held this law to be a taking of the coal owned by the Pennsylvania Coal Company.
440:
1077:, 137 S. Ct. 1933 (2017), the Court held that denominator is best assessed through a multi-factor balancing test that includes such factors as "the treatment of the land, in particular how it is bounded or divided, under state and local law," the "physical characteristics of the landowner’s property," and "the value of the property under the challenged regulation."
35:
1239:
768:
Engineer's regulatory reach. Perhaps some particular properties might in individual cases be so adversely impacted that a taking might be found. But this would not justify overturning the regulation itself. "Governmental land-use regulation may under extreme circumstances amount to a 'taking' of the affected property. See, e.g.,
224:
result in a "taking," and that the law did not interfere with owners' present use or prevent it from realizing a reasonable rate of return on its investment, especially since preexisting air rights were transferable to other parcels in the vicinity, which acted as a form of compensation for the claimed taking of air rights.
857:. The property consisted of roughly eighteen acres of wetlands and a small indeterminate amount of uplands. The land was divided into seventy-four parcels in two subdivision map filings that occurred in 1936 and 1959. Like the neighboring homes, the only way to develop Mr. Palazzolo's land is to raise the grade with fill.
652:
of one traditional property right does not always amount to a taking. At least where an owner possesses a full "bundle" of property rights, the destruction of one "strand" of the bundle is not a taking, because the aggregate must be viewed in its entirety. . In this case, it is crucial that appellees
549:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
219:
to approve plans for construction of 50-story office building over Grand
Central Terminal. Penn Central contended that under the New York Historical Preservation Law, it was entitled to derive a net income from Grand Central Terminal, but the city's regulation had forced it into an indefinite deficit
1088:
The development of regulatory takings jurisprudence is notable for the contribution made by public interest advocates from both the conservationist and property rights advocacy camps. Both the property rights advocacy organizations and many conservation-oriented organizations have submitted numerous
744:
pointed out that there are circumstances wherein the government may require installation of devices without compensation: "...the States traditionally – and constitutionally – have exercised their police power "to require landlords to ... provide utility connections, mailboxes, smoke detectors, fire
1021:
The reasons are obvious. A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself "take" the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use
880:
Were the Court to accept that rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the
Takings Clause. This ought not to
794:
Less than a decade after the Andrus decision, the Court found there to be a taking when the government took only a single strand of the bundle of property – the right to pass property to one's heirs. On Indian reservations, property belonging to Native
Americans was often fractionated, meaning that
531:
The fifth amendment. ... forbids taking private property for public use without just compensation or due process of law. That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never
312:
has found that state courts have reasonably concluded that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land. And in this context the
Supreme Court has repeatedly upheld land-use regulations that adversely affected recognized real
696:
The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, 277 U.S. 183, 188 (1928), or denies an owner economically viable use of his land, see Penn
Central Transp. Co. v. New
569:
It is not a little remarkable that, while this provision has been in the constitution of the United States as a restraint upon the authority of the federal government for nearly a century, and while during all that time the manner in which the powers of that government have been exercised has been
174:
The early mining operations often removed so much of the underground coal that the mines became a hazard to the miners underground and to those residing on the surface. For this reason, the
Pennsylvania legislature acted to limit the amount of material that could be removed from the mines below in
864:
authorized the
Coastal Resources Management Council (CRMC) to regulate the filling of coastal wetlands. The CRMC promulgated regulations requiring that any filling of coastal salt marsh, such as that found on the plaintiff's property, meet certain public interest requirements. CRMC had ruled that
807:
case, the Supreme Court had described a three-prong balancing test, which required a case-by-case analysis to determine if there had been a regulatory taking. This meant that it was difficult to predict whether a particular regulation merited compensation. Might there be situations in which there
223:
The U.S. Supreme Court held that: the owners could not establish a "taking" merely by showing that they had been denied the right to exploit the superadjacent airspace, irrespective of the remainder of the parcel; the fact that the law affected some owners more severely than others did not itself
184:
that they had acquired a right to mine the coal and the right to allow the surface to collapse because these rights had been purchased from the original landowners. The owner's deed conveyed the surface but in express terms reserved the right to remove all the coal. The state and the surface
1012:
One precondition of a regulatory takings claim is that the claimant must obtain a final decision by the regulating entity as to what uses will be permitted. The Supreme Court's decisions make it clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a
619:
through a forest upon private property to prevent spread of a forest fire. Or suppose the government destroys healthy livestock in a quarantine area to prevent spread of disease. These are invasive takings, but they do not fall under the per se rule described in a previous section. From the very
179:
involved an action by an individual landowner who sought to prevent a mining operation from violating this law, undermining his or her home. Under Pennsylvania law, the deed also conveyed the right to surface support to the coal company which could thus remove subsurface coal even if that caused
1057:
But when an action does not fall into a category addressed by one of these tests, the Court relies primarily on an ad hoc inquiry into the specifics of such individual case. This test was established in Penn Central v. City of New York, which described the most relevant factors to be the owners
932:
was designed to connect two public beaches that were separated by property belonging to the plaintiffs and their neighbors. The Coastal Commission had asserted that the public easement condition was imposed to promote the legitimate state interest of diminishing the "blockage of the view of the
767:
In its decision, the Supreme Court held that in order to be within the regulatory authority of the United States, these semi-aquatic characteristics would have to be the result of frequent flooding by the nearby navigable waters. But the Supreme Court rejected the attempt to narrow the Corps of
413:
Inverse condemnation is a term which describes a claim brought against the government in which a property owner seeks compensation for a `taking' of his property under the Fifth Amendment. In states that prohibit uncompensated taking or damaging, physical damage to property is included in this
853:, 533 U.S. 606 (2001). Palazzolo addressed two issues: When is a takings claim ripe? When does notice of a preexisting regulation destroy the right to challenge the application of that regulation? For forty years, the plaintiff's corporation owned a valuable parcel of property in the town of
826:
A review of the relevant decisions demonstrates that the "harmful or noxious use" principle was merely this Court's early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; that the distinction between regulation that
1022:
the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent "economically viable" use of the land in question can it be said that a taking has occurred.
2012:
558:
into the fourteenth amendment. The due process clause of the fourteenth amendment has historically been a major vehicle for the increased federal judicial review of the constitutionality of state activity. We find early justices of the Supreme Court puzzling over this, for example, in
383:, 447 U.S. 255 (1980), which states that the application of land-use regulations to a particular piece of property is a taking only "if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land." However, in
875:
On the question of whether the plaintiff could proceed with a taking claim after he acquired the property in his personal capacity from his corporation after the regulations were already in place, the Court held that he could. As Justice Kennedy, writing for the majority said,
602:
is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others. These restrictions are "properly treated as part of the burden of common
998:
did not apply because they involved exaction demands for land, as opposed to money. The Supreme Court reversed, finding that the cases were concerned about demands for property and that because money is a form of property, a monetary exaction is subject to those tests.
579:
Some 65 years later, the Court considered similar Pennsylvania legislation which required that some underground coal be left in place to provide surface support. In the Bituminous Coal case, the State's legislation received a more sympathetic hearing from the Court in
661:
It is, to be sure, undeniable that the regulations here prevent the most profitable use of appellees' property. Again, however, that is not dispositive. When we review regulation, a reduction in the value of property is not necessarily equated with a taking. Compare
753:
In 1985, the Supreme Court applied its regulatory takings analysis to the Clean Water Act, which prohibits any discharge of dredged or fill materials into "navigable waters"—defined as the "waters of the United States"—unless authorized by a permit issued by the
414:
definition. The term "inverse" is used, because usually condemnations are brought by the government. In the inverse condemnation context, it is the property owner who sues the government, alleging a taking (or damaging) of property without just compensation. See
287:
In contrast, a regulation restricting the use of property to further legitimate public ends, will not be considered a taking merely because it impairs the value or the utility of that land. However, when the regulation goes too far (as Justice Holmes put it in
707:
element of Agins, was later overruled in the Lingle v. Chevron case, where the court explained that its Agins opinion was mistaken on that point and that the "substantially advance" element was appropriate in substantive due process cases, not taking ones.
271:
The character of the governmental action can immediately determine whether the regulation is a taking. For instance, a taking has occurred when a government regulation creates a permanent physical occupation of a landowner's property. This rule comes from
146:(1978). Courts are to consider the economic impact of the governmental regulation, the extent to which the regulation interferes with investment-backed expectations, and the character of the governmental action. It is characterized as a disorganized test.
902:, the Court clarified that there had to be a rough proportionality between the exaction and the impact of the proposed development. It has been suggested by scholars that in exaction cases, the government gives the regulation heightened scrutiny akin to
241:
These factors have been criticized because the court failed to provide guidance as to exactly what they mean, what must be proven to establish a taking using them as a test, and whether all three, two, or any one of them is sufficient to show a taking.
865:
private housing does not meet this public interest requirement. Prior to the adoption of this regulatory regime, the plaintiff applied twice to utilize the property but each time the State withdrew its approval, and the plaintiff did not appeal.
732:
on their land, such as the permanent physical presence of cable lines on a residential building. The Court held that any permanent physical presence destroyed the property owner's right to exclude, long recognized as one of the key rights in the
643:, 444 U.S. 51 (1979), the Court found that the federal Eagle Protection Act could prohibit the sale of lawfully purchased eagle parts. The Court noted that the Act did not confiscate the owner's property, but rather regulated the terms of sale:
647:
The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the
396:
In the early twenty-first century, the concept of regulatory taking became more loosely used—outside the constitutional sense—by property rights groups, extending to include regulations that reduce property values by lesser amounts.
1245:
898:, the Supreme Court adopted a test to determine when an exaction is a taking: the municipality "must demonstrate an 'essential nexus' between a harm identified with the proposed development and the required exaction." In
389:, 544 U.S. 528 (2005), the Supreme Court overruled the "substantially advance" criterion of a taking. When a government regulation effects a taking of private property by such excessive regulation, the owner may initiate
838:
was remanded to the South Carolina Supreme Court which in turn remanded it to the trial court for a valuation trial. However, the case settled when the state bought Lucas' property, and later resold it to a developer.
624:, 123 U.S. 623, 665 (1887). The most straightforward example of this principle occurs when the government must condemn or destroy property to prevent spread of disease or other threat to the public health or safety.
973:
cases had previously held that permit exactions had to have an essential nexus and be roughly proportional to impacts caused by the permitted development. Both cases involved the dedication of land – an easement in
1479:
Meltz, Robert, Merriam, Dwight H., and Frank, Richard M. (1999). The Takings Issue: Constitutional Limits on Land Use Control and Environmental Regulation. Washington, D.C. & Covelo, California: Island Press,
405:) were advanced in at least seven states in the years 2000 to 2006. All these states are in the American west, but a significant portion of the funding for the initiatives came from sources on the east coast.
373:
527:, and declared the Legal Tender Acts constitutional. The Fifth Amendment does not apply to injuries which flow from the exercise of lawful power, the court held, but only to direct appropriation of property.
254:, the Supreme Court stated that "those who do business in the regulated field cannot object if the legislative scheme is buttressed by subsequent amendments to achieve the legislative end." However, in
1058:
investment-backed expectations, the economic impact of the regulation, and the character of the government action. This approach has been the subject of much criticism because of its unpredictability.
928:
demanded a lateral public easement across the plaintiffs' beachfront lot in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom two-story house. The public
1357:
Glen Hansen, Let’s Be Reasonable: Why Neither Nollan/Dolan nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz, 34 Pace Envtl. L. Rev. 237 (2017) Available at:
786:, 467 U.S. 986 (1984) This maxim rests on the principle that so long as compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional.
1476:
Kanner, Gideon, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 William & Mary Bill of Rights Journal 653 (2005).
2353:
261:
Justice Scalia's opinion for the majority of the court suggested that the expectations were on "how the owner's reasonable expectations have been shaped by the State's law of property."
1080:
The policy underlying the whole parcel rule is that it is "essential to an interpretation of the takings clause that leaves any room for public planning and regulation of land uses."
542:
116:
1313:
1226:
1168:
620:
first, the takings cases recognized that `all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.'
1369:
Christopher J. St. Jeanos, Dolan v. Tigard and the Rough Proportionality Test: Roughly Speaking, Why Isn't a Nexus Enough?, 63 Fordham L. Rev. 1883, 1886 (1995). Available at:
960:
100:
776:, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). But mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking. See
1221:
99:
limit the use of private property to such a degree that the landowner is effectively deprived of all economically reasonable use or value of their property. Under the
550:
State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
343:, 214 U.S. 91 (1909) (height restriction), which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property.
298:
216:
1294:
760:
701:
It took Bonnie Agins 30 years of litigation and administrative proceedings before she was permitted to build three houses on her 5-acre (20,000 m) parcel.
305:. The police power is the inherent state government power, to do what is reasonably necessary to promote and protect public health, safety, welfare and morals.
1036:, the Court held that the case was ripe because Palazzolo had applied for multiple permits and it was clear what could or could not be done with the property.
279:
which found that a New York law that required property owners to have cable television wires on their property was a taking which required just compensation.
1930:
1308:
718:
327:
274:
133:
which stated that: "The general rule, at least, is that, if regulation goes too far, it will be recognized as a taking for which compensation must be paid."
2190:
2569:
294:), it will be judicially recognized as the equivalent of a taking which may not take place without payment of just compensation to the property's owner.
831:, but must identify background principles of nuisance and property law that prohibit the uses Lucas now intends in the property's present circumstances.
1540:
204:
200:
142:
511:, the Legal Tender Acts of 1862 and 1863 made paper money a legal substitute for gold and silver, including for the payment of preexisting debts. In
362:) of no less than 100 feet (30 m). If a particular property were only 100 feet (30 m) deep, it would be impossible to build a house on the property.
778:
365:
Governmental land-use regulations that deny the property owner all economically viable use are deemed a taking of the affected property. See, e.g.,
915:
810:
367:
256:
515:, the Supreme Court had found the legal tender laws inconsistent with the spirit of the Constitution, which prohibited the states from passing "
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Richard A. Epstein, "Pennsylvania Coal v. Mahon: The Erratic Takings Jurisprudence of Justice Holmes," 86 Georgetown Law Journal 875 (1998).
2141:
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extended the protection against uncompensated takings to citizens against their own states. Section 1 of the Fourteenth Amendment states:
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The Keystone decision is characterized by deference to the State's determination that its legislation promoted public health and safety:
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proceedings to recover the just compensation for the taking of his or her property, provided that procedural hurdles have been overcome.
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Modern jurisprudence to determine whether a regulatory taking has occurred centers around the ad hoc factor-based test that the
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982:. Left unanswered was the question whether an exaction demand of money was subject to the nexus and proportionality tests. In
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Epstein, Richard A. (1985). Takings: Private Property and the Power of Eminent Domain. Cambridge: Harvard University Press,
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On the other side of the debate, the State of Hawaii was represented by Vermont Law School Professor John Echeverria in
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be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land.
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The fact that the statute barred the most profitable use of the property was not sufficient, the Court held:
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retain the rights to possess and transport their property, and to donate or devise the protected birds.
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that states a Knowledge (XXG) editor's personal feelings or presents an original argument about a topic.
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Notably, the Keystone decision bears four dissents: Justices Rehnquist, Powell, O'Connor and Scalia.
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The court laid out a three-part ad hoc test to consider whether a regulatory taking had occurred:
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The Holmes opinion is considered one of the most important opinions in the history of takings law.
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the extent to which the regulation has interfered with distinct investment-backed expectations and
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The issue of regulatory takings arises from the interaction between exercise of the traditional
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As a preliminary issue the Supreme Court addressed the question whether Palazzolo's case was "
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economically viable use of his land. Suppose a "low density residential" zone requires that a
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722:, 458 U.S. 419 (1982), the Supreme Court ruled that a regulation is generally considered a
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has established a number of tests under which a state regulation constitutes a taking
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governments are required to pay just compensation for such takings. The amendment is
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337:, 274 U.S. 603, 608 (1927) (requirement that portions of parcels be left unbuilt);
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Under our system of government, one of the State's primary ways of preserving the
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Rhode, Deborah L (April 2008). "Public Interest Law: The Movement at Midlife".
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2002:
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One of the more prominent advocates on behalf of property rights has been the
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of that property can be a taking. Lucas had purchased two residential lots on
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condition. The trial court agreed but its decision was reversed on appeal.
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from 1995, concerning political strategies for passing takings initiatives
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Frieden, Bernard, The Environmental Protection Hustle (1979 MIT Press).
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One year after the eagle feather decision in Andrus, the Court decided
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The investment-backed expectations factor has largely been unclear. In
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An early case involving interpretation of the Fifth Amendment was the
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1936:
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Eagle, Steven J. (2005). Regulatory Takings. Newark, NJ: LexisNexis,
468:. Statements consisting only of original research should be removed.
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1900:
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First English Evangelical Lutheran Church v. County of Los Angeles
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First English Evangelical Lutheran Church v. County of Los Angeles
351:
1414:
Is the Penn Central Three-Factor Test Ready for History's Dustbin
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that governmental regulations that went "too far" were a taking.
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The role of public interest advocacy in regulatory takings cases
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377:(1987). The general approach to this question was summed up in
358:(the distance from the edge of the property to the edge of the
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779:
Hodel v. Virginia Surface Mining & Reclamation Association
433:
28:
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Land-use exactions and permit conditions are governed by the
418:, 450 U.S. 621, 638 n.2 (1981) (Justice Brennan dissenting);
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deprives a property owner of all economically beneficial use
814:, the U.S. Supreme Court ruled that a State regulation that
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770:
Williamson County Regional Planning Comm'n v. Hamilton Bank
211:, the Court denied a takings claim brought by the owner of
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personal reflection, personal essay, or argumentative essay
1027:
United States v Riverside Bayview Homes, 474 US 121 (1985)
554:
Early on, the federal courts began the process of gradual
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Regulatory takings jurisprudence has its roots in Justice
2354:
The Origin of the Family, Private Property and the State
1246:
public domain material from this U.S government document
1015:
Hodel v. Virginia Surface Mining & Reclamation Assn.
772:, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985);
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331:, 272 U.S. 365 (1926) (prohibition of industrial use);
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Fourteenth Amendment to the United States Constitution
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the economic impact of the regulation on the claimant,
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The "polestar" of regulatory takings jurisprudence is
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should be a "per se" rule requiring compensation? In
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San Diego Gas & Electric Co. v. City of San Diego
175:
order to leave sufficient underground support below.
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2115:
1995:
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961:
Koontz v. St. Johns River Water Management District
346:However, zoning restrictions may not deny an owner
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the New York City Landmarks Preservation Commission
924:, the Court reviewed a regulation under which the
847:On June 28, 2001, the Court issued its opinion in
517:any ... law impairing the obligation of contracts.
1359:https://digitalcommons.pace.edu/pelr/vol34/iss2/1
1262:Constitutional law : principles and policies
1222:Penn Central Transportation Co. v. New York City
774:Penn Central Transportation Co. v. New York City
1371:https://ir.lawnet.fordham.edu/flr/vol63/iss5/22
1019:
583:Keystone Bituminous Coal Ass'n. v. DeBenedictis
556:incorporation of the bill of rights protections
401:based on this interpretation (such as Oregon's
761:United States v. Riverside Bayview Homes, Inc.
728:taking when it forces land owners to endure a
1534:
1110:Koontz v. St. Johns Water Management District
984:Koontz v. St. Johns Water Management District
955:Koontz v. St. Johns Water Management District
8:
1416:, 52 LAND Use L. & ZONING DIG. 3 (2000).
1309:Loretto v. Teleprompter Manhattan CATV Corp.
719:Loretto v. Teleprompter Manhattan CATV Corp.
328:Village of Euclid, Ohio v. Ambler Realty Co.
1102:Suitum v. Tahoe Regional Planning Authority
275:Loretto v. Teleprompter Manhattan CATV Corp
252:Connolly v. Pension Benefit Guarantee Corp.
1885:
1541:
1527:
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1293:: CS1 maint: location missing publisher (
978:and a public easement and bicycle path in
484:Learn how and when to remove this message
283:Regulatory restriction on use of property
237:the character of the governmental action.
201:Penn Central Transp. Co. v. New York City
180:subsidence. The coal companies argued in
143:Penn Central Transp. Co. v. New York City
75:Learn how and when to remove this message
1424:
1422:
586:, 480 U.S. 470 (1987). The Court wrote:
1332:See Patricia E. Salkin and Amy Lavine,
1148:
1098:Nollan v. California Coastal Commission
922:Nollan v. California Coastal Commission
916:Nollan v. California Coastal Commission
896:Nollan v. California Coastal Commission
811:Lucas v. South Carolina Coastal Council
799:Lucas v. South Carolina Coastal Council
368:Lucas v. South Carolina Coastal Council
308:There are numerous instances where the
257:Lucas v. South Carolina Coastal Council
1336:, 38 The Urban Lawyer 1065 (Fall 2006)
1286:
1096:, which represented the landowners in
1209:Penn Central and Its Reluctant Muftis
756:United States Army Corps of Engineers
705:Note that the "substantially advance"
246:Investment-backed expectations factor
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575:The Bituminous Coal Association case
267:Character of the governmental action
829:sic utere tuo ut alienum non laedas
161:In 1922, the Supreme Court held in
615:Suppose the government must cut a
537:Fourteenth Amendment jurisprudence
310:Supreme Court of the United States
138:Supreme Court of the United States
25:
2570:Property law in the United States
1334:Measure 37 and a Spoonful of Kelo
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1122:Mountain States Legal Foundation
507:, 79 U.S. 457 (1870) During the
438:
426:, 447 U.S. 255, 258 n.2 (1980).
89:United States constitutional law
33:
1139:and Community Rights Council.
1017:, 452 U.S. 264, 293–297(1981).
820:a South Carolina barrier island
2086:Right of way (property access)
1164:Pennsylvania Coal Co. v. Mahon
1135:, and who has worked with the
674:Pennsylvania Coal Co. v. Mahon
291:Pennsylvania Coal Co. v. Mahon
177:Pennsylvania Coal Co. v. Mahon
164:Pennsylvania Coal Co. v. Mahon
1:
1211:, 66 BAYLOR L. REV. 1 (2014).
1124:represented the landowner in
926:California Coastal Commission
730:permanent physical occupation
692:The U.S. Supreme Court held:
319:are the classic example; see
169:Justice Oliver Wendell Holmes
672:, 239 U.S. 394 (1915), with
422:, 445 U.S. 253, 257 (1980);
2392:Two Treatises of Government
1259:Chemerinsky, Erwin (2019).
1046:United States Supreme Court
784:Ruckelshaus v. Monsanto Co.
464:the claims made and adding
150:Supreme Court jurisprudence
2586:
2560:American legal terminology
1244:This article incorporates
990:held that the holdings of
958:
940:
913:
129:Pennsylvania Coal v. Mahon
105:United States Constitution
2516:
1888:
1106:Palazzolo v. Rhode Island
850:Palazzolo v. Rhode Island
611:Health and safety takings
95:occurs when governmental
2444:The Great Transformation
1802:Labor theory of property
1265:(6 ed.). New York.
1094:Pacific Legal Foundation
1003:Regulatory taking themes
988:Supreme Court of Florida
904:rational basis with bite
862:Rhode Island Legislature
424:Agins v. City of Tiburon
380:Agins v. City of Tiburon
371:, 505 U.S. 1003 (1992),
2565:Takings Clause case law
2013:Forest-dwelling (India)
1975:restraint on alienation
1755:Common good (economics)
1513:Reason magazine article
1384:Dolan v. City of Tigard
1126:Brandt v. United States
1062:The denominator problem
1013:regulatory taking. See
949:Dolan v. City of Tigard
943:Dolan v. City of Tigard
565:, 123 U.S. 623 (1887):
420:United States v. Clarke
2452:Pierre-Joseph Proudhon
2226:Primitive accumulation
2081:Right of way (transit)
1866:Tragedy of the commons
1748:fictitious commodities
1348:, 482 U.S. 304 (1987).
1116:. Another non-profit,
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883:
855:Westerly, Rhode Island
833:
699:
678:
669:Hadacheck v. Sebastian
664:Goldblatt v. Hempstead
655:
630:
605:
592:
572:
552:
534:
430:Constitutional history
322:Hadacheck v. Sebastian
213:Grand Central Terminal
111:to the states via the
55:by rewriting it in an
2505:The Wealth of Nations
2485:Jean-Jacques Rousseau
2477:The Ethics of Liberty
878:
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694:
666:, supra, at 594, and
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215:following refusal of
124:Oliver Wendell Holmes
2368:Progress and Poverty
1702:Common-pool resource
1412:John D. Echeverria,
1403:570 U.S. 595 (2013).
1118:Oregonians in Action
409:Inverse condemnation
391:inverse condemnation
313:property interests.
117:Fourteenth Amendment
2491:The Social Contract
2179:population transfer
2096:prior-appropriation
1775:homestead principle
1499:Property (Casebook)
1431:Stanford Law Review
513:Hepburn v. Griswold
2471:Murray N. Rothbard
1782:Free-rider problem
509:American Civil War
504:Legal Tender Cases
497:Legal tender cases
449:possibly contains
399:Ballot initiatives
113:Due Process Clause
57:encyclopedic style
44:is written like a
18:Regulatory takings
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2458:What Is Property?
2251:human trafficking
2236:Regulatory taking
2111:
2110:
1856:Right to property
1272:978-1-5438-1347-0
1207:Steven J. Eagle,
1133:Lingle v. Chevron
1114:Murr v. Wisconsin
1075:Murr v. Wisconsin
1008:Permit exhaustion
494:
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451:original research
386:Lingle v. Chevron
182:Pennsylvania Coal
156:Pennsylvania Coal
93:regulatory taking
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16:(Redirected from
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2428:John Stuart Mill
2348:Friedrich Engels
2329:Frédéric Bastiat
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2174:Forced migration
2142:Collectivization
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1738:Bundle of rights
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735:bundle of rights
712:Loretto decision
687:Agins v. Tiburon
640:Andrus v. Allard
633:Andrus v. Allard
622:Mugler v. Kansas
562:Mugler v. Kansas
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2018:Freedom to roam
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2525:Categories:
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2466:David Ricardo
2464:
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2433:Elinor Ostrom
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2239:
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2234:
2232:
2231:Privatization
2229:
2227:
2224:
2222:
2219:
2217:
2214:
2212:
2211:Legal plunder
2209:
2207:
2204:
2202:
2199:
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2185:
2182:
2180:
2177:
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2165:
2163:
2162:Expropriation
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2019:
2016:
2014:
2011:
2009:
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1998:
1994:
1986:
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1981:
1978:
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1896:(watercourse)
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1839:primogeniture
1837:
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1819:Legal plunder
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1771:
1770:appropriation
1768:
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1761:
1760:Excludability
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1507:0-7355-2437-8
1504:
1500:
1497:
1496:
1492:
1487:
1486:1-55963-380-8
1483:
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1475:
1472:
1469:
1468:0-8205-7493-7
1465:
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1458:
1457:0-674-86728-9
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1252:
1249:
1247:
1236: (1978).
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860:In 1971, the
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749:Bayview Homes
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603:citizenship".
601:
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474:December 2011
467:
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447:This article
445:
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334:Gorieb v. Fox
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126:' opinion in
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68:
58:
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48:
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42:This article
40:
31:
30:
27:
19:
2532:Property law
2503:
2489:
2475:
2456:
2442:
2438:Karl Polanyi
2418:
2414:Marcel Mauss
2404:
2390:
2381:David Harvey
2366:
2362:Henry George
2352:
2343:Ronald Coase
2333:
2318:
2264:wife selling
2246:bride buying
2184:repatriation
2166:
2117:Disposession
2071:
1960:Property law
1935:
1931:Forest types
1901:
1893:
1882:Applications
1812:rent-seeking
1797:Gift economy
1655:Intellectual
1498:
1434:
1430:
1413:
1408:
1399:
1388:, retrieved
1383:
1377:
1365:
1353:
1345:
1341:
1333:
1328:
1323: (1982).
1307:
1303:
1261:
1254:
1243:
1220:
1216:
1208:
1183:
1178: (1922).
1162:
1132:
1130:
1125:
1113:
1109:
1105:
1101:
1097:
1091:
1087:
1079:
1074:
1072:
1068:Penn Central
1067:
1065:
1056:
1049:
1043:
1033:
1031:
1020:
1014:
1011:
995:
991:
983:
979:
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970:
966:
964:
948:
946:
921:
919:
899:
895:
892:Nollan-Dolan
891:
889:
879:
874:
867:
859:
848:
846:
835:
834:
825:
815:
809:
805:Penn Central
804:
802:
793:
783:
777:
773:
769:
766:
759:
752:
741:
739:
729:
723:
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695:
691:
686:
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673:
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560:
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471:
448:
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412:
395:
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372:
366:
364:
347:
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338:
332:
326:
320:
315:
307:
299:police power
296:
289:
286:
273:
270:
262:
255:
251:
249:
240:
226:
222:
209:Penn Central
208:
199:
197:
193:Penn Central
192:
187:
181:
176:
173:
162:
160:
155:
141:
140:laid out in
135:
128:
121:
109:incorporated
92:
86:
71:
65:January 2009
62:
43:
26:
2406:Das Kapital
2293:progressive
2283:inheritance
2206:Land reform
1980:real estate
1955:Land tenure
1943:Inheritance
1871:anticommons
1807:Law of rent
1787:Game theory
1717:Information
1697:Common land
1594:Cooperative
758:("Corps").
600:public weal
521:Knox v. Lee
317:Zoning laws
97:regulations
2554:Categories
2537:by country
2499:Adam Smith
2386:John Locke
2050:indigenous
2045:aboriginal
1965:alienation
1660:indigenous
1650:Intangible
1564:Collective
1446:References
1281:1227059524
894:rule. In
458:improve it
403:Measure 37
2400:Karl Marx
2201:Land Back
2152:Enclosure
2135:biopiracy
2073:Bergregal
2055:squatting
1829:Ownership
1743:Commodity
1722:Knowledge
1633:By nature
1589:Customary
1579:Community
1390:April 18,
1289:cite book
1034:Palazzolo
886:Exactions
843:Palazzolo
617:firebreak
462:verifying
2527:Property
2420:The Gift
2319:key work
2314:Scholars
2298:property
2255:spousal
2221:Poaching
2157:Eviction
2101:riparian
2062:Littoral
1970:easement
1948:executor
1919:literary
1844:usufruct
1792:Georgism
1672:Tangible
1667:Personal
1574:Communal
1557:By owner
1550:Property
1025:—
930:easement
360:building
2335:The Law
2241:Slavery
2067:Mineral
2035:Hunting
2028:pannage
2023:Grazing
2008:Fishing
1894:Acequia
1861:Rivalry
1849:women's
1707:Digital
1689:Commons
1624:Unowned
1599:Private
1437:: 2027.
803:In the
742:Loretto
456:Please
356:setback
354:have a
205:(1973).
115:of the
103:to the
51:Please
2216:Piracy
2168:Farhud
1996:Rights
1937:Huerta
1909:Estate
1731:Theory
1712:Global
1614:Social
1604:Public
1569:Common
1505:
1484:
1466:
1455:
1312:,
1279:
1269:
1242:
1225:,
1167:,
1112:, and
1051:per se
992:Nollan
976:Nollan
967:Nollan
910:Nollan
725:per se
650:denial
131:(1922)
2305:Theft
2091:Water
1985:title
1914:legal
1902:Ejido
1640:Croft
1619:State
1584:Crown
1316:
1229:
1171:
1143:Notes
996:Dolan
980:Dolan
971:Dolan
937:Dolan
900:Dolan
836:Lucas
681:Agins
352:house
2288:poll
2271:wage
2040:Land
1924:real
1677:real
1609:Self
1503:ISBN
1482:ISBN
1464:ISBN
1453:ISBN
1392:2021
1318:U.S.
1295:link
1277:OCLC
1267:ISBN
1231:U.S.
1173:U.S.
1044:The
994:and
969:and
965:The
870:ripe
541:The
523:and
91:, a
2278:Tax
2003:Air
1321:419
1314:458
1234:104
1227:438
1176:393
1169:260
1073:In
1066:In
1032:In
947:In
920:In
716:In
637:In
460:by
348:all
207:In
119:.
87:In
2556::
1509:).
1435:60
1433:.
1421:^
1291:}}
1287:{{
1275:.
1192:^
1151:^
1108:,
1104:,
1100:,
906:.
2321:)
2317:(
2119:/
1542:e
1535:t
1528:v
1501:(
1488:.
1470:.
1459:.
1297:)
1283:.
1248:.
733:"
487:)
481:(
476:)
472:(
454:.
277:.
259:,
78:)
72:(
67:)
63:(
59:.
20:)
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