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A perennial and difficult question for local planners is how far the government can go in reducing the development potential (and hence the value) of property through the imposition of land use regulations without putting itself at risk for a “takings” claim. If successful, a takings claim may require the payment of substantial compensation to the landowner for the loss of value to the land, and, in some circumstances, the payment of the land owner’s legal fees. But whether successful or not, takings litigation is likely to be expensive to the municipality.

Unfortunately, the law of takings is not always as clear cut as we would like. As the U.S. Supreme Court observed in Penn Central v. New York, 438 U.S. 104 (1978) “… whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely ‘upon the particular circumstance [in that] case’.”

But neither are we completely without guidance. The U.S. Supreme Court and most, if not all, State Supreme Courts have looked at the takings issue many times over the years. Notwithstanding some twists and turns along the way, we at least have a pretty good idea of how to analyze taking questions; and that’s of great value to municipalities. …

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