Regulatory taking

Regulatory taking is a situation in which a government regulation limits the uses of private property to such a degree that the regulation effectively deprives the property owners of economically reasonable use or value of their property to such an extent that it deprives them of utility or value of that property, even though the regulation does not formally divest them of title to it.

In common law jurisdictions, state governments traditionally enjoy police power, under which a government may regulate a variety of aspects of the lives of its subjects.

Under American law, however, this power does not extend to the outright divestiture of title to private property, nor to the de facto equivalent of it. Instead, the power of eminent domain is a separate and distinct power which allows a government to divest a property owner of utility of such property, but when it does so, it must pay just compensation. Some states, not the federal government, use the full compensation standard, not the just compensation standard.

This power is limited in the Fifth Amendment to the United States Constitution, and extends to the states under the Due Process Clause of the Fourteenth Amendment. (The Fifth Amendment prohibits the federal government from taking property for public use without "just compensation," which American courts have interpreted in the usual case to mean "fair market value".) This prohibition is deemed incorporated in the Due Process Clause of the Fourteenth Amendment (which bars state governments from depriving people of their property without due process of law.)

The most straightforward takings claim arises when the government physically occupies some part of a landowner's property without compensation: this runs directly into the plain language of the amendment itself. It is a "taking" of some property without compensation. With certain exceptions, a direct physical occupation, temporary or permanent, represents a taking. In some few cases, we find disputes surrounding whether a government action in fact constitutes a physical direct and immediate occupation of land. A leading case is United States v. Causby, 328 U.S. 256 (1946), in which a landowner was subjected incessant low-level military flights well below the federally recognized aviation airspace. In requiring compensation, the Court held:

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