To my memory, a taking can be found even when not all economic value has been stripped from the property. Lucas certainly involved a (politically motivated?) concession that ALL economic value was lost, but the SCOTUS has since ruled (with Scalia doing his best footnote kung fu, IIRC) that such is not a precondition. A government need only significantly interfere with “investment backed expectations” (a phrase I found suspicious even before I became a libertarian) to be found to be taking a property through regulation. Your contiguous landowner scenario may exist, though, because of standing requirements and simple ignorance or inertia (most people won’t realize how much their property value has been decreased, or won’t care because they plan on staying there anyway). Which is also the reason why, in less affluent areas, I think your regulatory two-step could be effective as well, though I can’t say I’ve witnessed it.
In PA, we don’t (‘didn’t’ is probably more appropriate for me now since I’ve been out of that sector for a while) use the term “inverse” but “reverse”, so most likely they are the same thing in your jurisdiction. All it is is an eminent domain action instituted by the allegedly aggrieved landowner, who claims that her property was taken even though the state did not institute an eminent domain proceeding, or at the very least did not institute one against part of a piece of property. Most often in my experience, these cases arise from either partial condemnations like the one I described, or from regulatory takings, an example that I can provide is where someone owns a plot of land on which is found an endangered species (here in PA, the bog turtle seems to be able to travel many miles from natural water sources to create problems for land owners who have land that receives run-off from other developed properties; either that, or the environmental groups have gotten very pro-active and are “seeding” them wherever they can). Since developing on endangered habitat requires onerous allowances to maintain the habitat, absentee owners, who have held the land in the hope of future development, often bring reverse takings claims against the state DEP after the DEP imposes the onerous burdens.
]]>I think I saw somewhere that because of the point you brought up, governments ultimately intending to take full title to a parcel often do so using a two-step maneuver whereby they first impose an onerous regulation that has the intented effect of reduces the parcel’s value say from $200,000 to $20,000 (which would not rise to the level of a “regulatory taking”* under current 5th amendment jurisprudence – because it’s not worth nothing and still has some permitted use); and, then, once the property’s value has been slashed, they then come back and take title to the parcel itself, “saving” them $180,000. Have you heard of this?
Also, in the event of a constitutional “taking,” isn’t one only legally entitled to compensation for the loss of value to one’s own property from the taking of one’s own property taken in isolation (and not the diminution resulting from the takings from neighboring landowners)? If this is right, couldn’t those wielding the power of eminent domain “game the system” by simply taking from numerous continguous landowners one-by-one, with each such taking reducing the “pre-taking” value of the next one (and thus reducing the amount required to be paid in compensation)?
Thanks, Araglin
*Could you difference among the terms “regulatory taking,” “reverse taking,” and “inverse condemnation”? I have seen all of them used a decent amount recently but only happen to have a distinct sense for the meaning of “regulatory taking.”
]]>This was indeed another great post. For all the critiques of eminent domain I’ve seen (mainly taking the position of “it’s not necessary” against Richard Epstein and the like), I don’t believe it’s ever occurred to me how the use of eminent domain (in order to assemple enough contiguous tracts to build a highway or Interstate) give an additional artificial advantage to persons and businesses dependent upon long-distance travel and trade, at the expense of local producers producing for local use (over and above that conferred by the financing of road construction and maintenance).
Another issue I haven’t given sufficient attention to is that of “hooking” suburban houses up to municipal utility grids without charging the new “user” the full marginal cost of the “hook-up.” I imagine this is just a way of redistributing wealth from incumbant landowners (or those otherwise bearing the incidence of property taxes or utility rates) within a municipality to politically-connected real estate developers.
Does anyone know of good sources dealing with this question?
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