Regulatory Takings

Chapter 29 asked whether government possesses, and has lawfully exercised, regulatory authority over private land. That question is answered by the police power, the enabling act, and the due-process and statutory limits on local action. Chapter 30 asks an entirely separate constitutional question: assuming the regulation is valid, has government imposed upon private property a burden that the Fifth Amendment requires it to pay for?

The two questions are independent, and the most common analytical error in this field is to run them together. A regulation may be perfectly valid and still effect a compensable taking. A regulation may be invalid — ultra vires, procedurally defective, or a violation of the First Amendment — without effecting a taking at all. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), holds precisely that the validity inquiry and the compensability inquiry are not the same, and this chapter is organized around that separation.

1. The Takings Clause states four distinct elements. Private property; a taking; public use; just compensation. Each is a separate inquiry, and a complete analysis addresses them in order rather than collapsing them into a single question of governmental fairness.
2. A taking is not, without more, unconstitutional conduct. The Clause does not forbid takings for public use; it conditions them on compensation. The ordinary remedy is therefore payment, not invalidation.
3. The Clause binds the States through the Fourteenth Amendment. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). Nearly all modern regulatory-takings litigation concerns state or municipal action.
4. Direct condemnation and inverse condemnation are procedurally distinct. In condemnation government initiates and admits the taking; in inverse condemnation the owner alleges that a taking has already occurred without process or payment.
5. Regulation is not appropriation, but appropriation may be accomplished by regulation. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), established that a restriction may go so far as to require compensation, without supplying a mechanical test for how far is too far.
6. The residual framework is Penn Central. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), weighs the economic impact of the regulation, the extent of interference with distinct investment-backed expectations, and the character of the governmental action. It is an ad hoc, factual inquiry, not a three-element checklist and not a formula.
7. Diminution in value is evidence, not a test. No percentage of value loss establishes a taking as a matter of law under Penn Central, and the Supreme Court has never adopted one.
8. Permanent physical occupation is a per se taking however small. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
9. The Clause protects personal property as well as land. Horne v. Department of Agriculture, 576 U.S. 350 (2015), applied classic physical-takings principles to a reserve requirement on raisins.
10. Appropriation of the right to exclude is analyzed as a physical taking. Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021). The Court expressly preserved isolated trespasses, background limitations on title, and reasonable health-and-safety inspection conditions.
11. Total deprivation of all economically beneficial use is categorical, subject to background principles. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The exception is confined to limitations inhering in the title itself under state property and nuisance law.
12. Government cannot manufacture a background principle by enacting the challenged regulation. Lucas requires that the limitation already inhere in the owner's title; a newly declared legislative characterization of a use as noxious is not a background principle.
13. Temporary restrictions are ordinarily analyzed under Penn Central, not Lucas. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), rejected temporal severance; but First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), holds that where a temporary taking has occurred compensation is owed for the period of deprivation.
14. The relevant parcel is defined by the parcel as a whole, informed by a multifactor inquiry. Murr v. Wisconsin, 582 U.S. 383 (2017), looks to state and local law (including merger provisions), the physical characteristics of the land, and the prospective value of the regulated land, including the benefit of common ownership.
15. Acquisition after enactment does not extinguish a takings claim. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Regulatory background may still bear on the reasonableness of expectations under Penn Central; it is not an absolute bar.
16. Permit conditions are governed by the unconstitutional-conditions doctrine. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), requires an essential nexus between the condition and the impact justifying it; Dolan v. City of Tigard, 512 U.S. 374 (1994), requires rough proportionality in nature and extent.
17. Exactions doctrine reaches monetary conditions and denied permits. Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013).
18. Legislative origin does not exempt a permit condition from Nollan and Dolan. Sheetz v. County of El Dorado, 601 U.S. 267 (2024). The Court decided only that categorical question and expressly left other questions about generally applicable fee schedules open.
19. Whether a regulation substantially advances a legitimate state interest is not a takings test. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), removed the Agins formulation from takings law and located that inquiry in due process.
20. Ripeness survives Knick only in part. Knick v. Township of Scott, 588 U.S. 180 (2019), abolished the state-litigation requirement of Williamson County; the final-decision requirement remains, and Pakdel v. City & County of San Francisco, 594 U.S. 474 (2021), holds that finality does not require exhaustion of every available administrative procedure.
21. State constitutions may exceed the federal floor. Several States compensate for property 'damaged' as well as taken, and state courts may reject federal limitations as a matter of independent state law.

1. Separate the four elements of the Takings Clause and explain why a compensable taking is not the same as unconstitutional conduct.
2. Explain the incorporation of the Clause against the States and its consequences for municipal land-use litigation.
3. Distinguish direct condemnation from inverse condemnation as procedural vehicles.
4. State the contribution and the limits of Pennsylvania Coal Co. v. Mahon.
5. Apply the three Penn Central considerations without converting them into elements or thresholds.
6. Identify the relevant parcel using Penn Central's parcel-as-a-whole rule as refined by Murr.
7. Classify a governmental action as a physical appropriation, an access appropriation, a total deprivation, an exaction, or an ordinary regulatory burden.
8. State the Lucas categorical rule with precision and apply its background-principles exception without reviving a general noxious-use exemption.
9. Analyze temporary restrictions under First English and Tahoe-Sierra.
10. Apply the essential-nexus and rough-proportionality requirements to land, easement, and monetary conditions, including legislatively imposed conditions after Sheetz.
11. Explain why Lingle removed the 'substantially advances' inquiry from takings law.
12. Determine whether a takings claim is ripe under the surviving final-decision requirement as clarified by Pakdel, and identify the federal forum available after Knick.
13. State the remedial structure of the Clause and the basic measure of just compensation.

• U.S. Const. amend. V; U.S. Const. amend. XIV, § 1.
• 42 U.S.C. § 1983; 28 U.S.C. § 1491 (Tucker Act).
• Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
• Mugler v. Kansas, 123 U.S. 623 (1887); Hadacheck v. Sebastian, 239 U.S. 394 (1915).
• Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).
• Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
• First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987).
• Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
• Dolan v. City of Tigard, 512 U.S. 374 (1994).
• Palazzolo v. Rhode Island, 533 U.S. 606 (2001).
• Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).
• Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005); Kelo v. City of New London, 545 U.S. 469 (2005).
• Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013).
• Horne v. Department of Agriculture, 576 U.S. 350 (2015).
• Murr v. Wisconsin, 582 U.S. 383 (2017).
• Knick v. Township of Scott, 588 U.S. 180 (2019).
• Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021); Pakdel v. City & County of San Francisco, 594 U.S. 474 (2021).
• Sheetz v. County of El Dorado, 601 U.S. 267 (2024).

• 2 William Blackstone, Commentaries on the Laws of England *138–*139 (private property and the legislature's obligation to indemnify).
• 2 James Kent, Commentaries on American Law *338–*340 (eminent domain and compensation in the early Republic).
• John Lewis, A Treatise on the Law of Eminent Domain in the United States (3d ed. 1909).
• Philip Nichols, Nichols on Eminent Domain (rev. 3d ed.), chs. 1, 6, 12.
• Restatement (Second) of Torts §§ 821A–840D (nuisance; supplying content to Lucas background principles).
• Restatement (Third) of Property: Servitudes §§ 1.2, 7.1 (interests capable of appropriation).
• Daniel R. Mandelker, Land Use Law, chs. 2, 10; Julius L. Sackman, Nichols on Eminent Domain.
• Frank I. Michelman, Property, Utility, and Fairness, 80 Harv. L. Rev. 1165 (1967); Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).

The operative text is nineteen words: “nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. The grammar of the Clause is conditional, not prohibitory. It does not say that private property shall not be taken. It says that private property shall not be taken for public use without just compensation. The constitutional wrong to which the Clause is addressed is therefore the failure to pay, not the taking itself.

Four questions follow from the text, and they must be kept separate. First, is the interest asserted “private property” protected by the Clause? Second, has government “taken” it? Third, is the taking for “public use”? Fourth, has “just compensation” been provided? A claimant who cannot establish a protected property interest never reaches the second question. A claimant who establishes a taking has not thereby established a constitutional violation; the violation arises when compensation is denied.

The Clause must also be distinguished from its constitutional neighbours. The Due Process Clauses ask whether the deprivation was permissible and whether the procedures attending it were adequate; the Takings Clause assumes permissibility and asks about payment. The Equal Protection Clause asks about classification among owners. The Contract Clause addresses legislative impairment of contractual obligations. The police power is the source of regulatory authority, and eminent domain the source of appropriative authority; neither is itself a limitation. Finally, state constitutional takings provisions frequently exceed the federal floor, most conspicuously in the many States that compensate property “taken or damaged.”

In direct condemnation the sovereign initiates the proceeding. It files a petition, identifies the property and the interest sought, deposits or tenders an estimate of value, and litigates only the amount. The taking is admitted; the dispute is valuation.

In inverse condemnation the owner initiates. The premise of the action is that government has already taken property — by flooding it, by occupying it, by authorizing a third party to occupy it, or by regulating it so severely that the burden amounts to an appropriation — without invoking condemnation and without paying. The owner must therefore prove both the taking and the compensation, in that order.

Regulatory-takings litigation is almost entirely inverse condemnation. Government does not file a condemnation petition when it adopts a wetlands rule or denies a permit; it asserts that it has merely regulated. The label matters procedurally: burdens of proof, the availability of interest, attorney's fees, statutes of limitation, and (in federal court) the vehicle of 42 U.S.C. § 1983 all attach to the inverse action rather than to a condemnation award.

Property has never carried immunity from generally applicable law. The owner of a fee simple absolute has always been subject to the law of nuisance, to the obligations of support and lateral and subjacent stability, to public-health measures, and to taxation. If every burden imposed by such law were compensable, government could not function, and the Court has said so repeatedly.

The opposite proposition is equally untenable. If the label “regulation” were sufficient to defeat the Clause, a legislature could accomplish by prohibition everything it would otherwise have to buy. Mahon's insight is that the constitutional line cannot be drawn by nomenclature.

The chapter therefore proceeds by classification. The reader should ask, first, what government has actually done — appropriated, occupied, opened to third parties, prohibited, conditioned, or merely restricted — and only then select the doctrinal framework that governs that species of action.

The Fifth Amendment by its terms restrains the federal government. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), held that a State's taking of property without compensation violates the Due Process Clause of the Fourteenth Amendment, and the modern Court treats the Takings Clause as fully incorporated against the States and their political subdivisions.

The consequence is practical. Zoning ordinances, subdivision exactions, coastal and wetlands programmes, historic-preservation designations, rent regulation, and impact fees are almost always state or local. The operative protection nonetheless originates in the Fifth Amendment, and after Knick the owner may bring the claim directly in federal court under § 1983 once it is ripe.

Nineteenth-century takings law was overwhelmingly a law of physical appropriation. The paradigm case was the condemnation of a right of way for a canal, a turnpike, or a railroad; the contested cases involved permanent flooding from a public dam, the physical invasion of land by public works, and the destruction of buildings to arrest a conflagration. Compensation followed physical dispossession, and the theoretical apparatus of the field — Lewis's and Nichols's treatises — was organized around the acquisition of title or of an easement.

Regulation, by contrast, was analyzed under the police power and treated as noncompensable. The two categories were understood as mutually exclusive: what was taken was paid for; what was regulated was not.

Mugler v. Kansas, 123 U.S. 623 (1887), sustained a state prohibition of the manufacture of intoxicating liquors against a brewer whose plant was rendered nearly valueless. The Court reasoned that a prohibition of a use injurious to the public health is not an appropriation of property but a declaration that the use was never a protected incident of ownership.

Hadacheck v. Sebastian, 239 U.S. 394 (1915), applied the same reasoning to a municipal ordinance forbidding brickmaking within an area that had grown up around a long-established brickyard, notwithstanding an alleged reduction in value from $800,000 to $60,000. The Court emphasized that the ordinance forbade the manufacture of brick, not the removal or sale of the clay.

These decisions are indispensable historically, but they must not be reduced to a rule that any legislative characterization of a use as noxious defeats the Clause. Lucas later rejected the harmful-use rationale as a freestanding test, precisely because the distinction between preventing harm and conferring a public benefit lies in the eye of the beholder and can be redescribed at will. What survives of Mugler and Hadacheck is the narrower and defensible proposition preserved by Lucas's background-principles exception: limitations that inhere in the title itself under state property and nuisance law are not takings.

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), arose from the tripartite division of mining property in Pennsylvania: the surface estate, the mineral estate, and the separately recognized support estate. The Coal Company had conveyed the surface while expressly reserving the right to remove all the coal and while the grantee expressly assumed the risk of subsidence. The Kohler Act then forbade the mining of anthracite in a manner causing the subsidence of a dwelling.

Justice Holmes, for the Court, held the statute unconstitutional as applied. The reasoning proceeded in three steps. First, the Act destroyed a recognized estate in land — the support estate — and made the reserved coal commercially unminable. Second, the public interest asserted was, on the record, the protection of a single private dwelling under a deed in which the risk had been contractually allocated. Third, and famously, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”

Justice Brandeis dissented. He argued that the restriction merely prohibited a noxious use, that the value destroyed must be measured against the owner's entire interest in the coal rather than against the segment made unminable, and that reciprocity of advantage inheres in general safety legislation. His two central objections — the definition of the denominator and the treatment of general public-safety regulation — remain the two most contested questions in the field, and both are answered, at least partially, in Penn Central, Tahoe-Sierra, and Murr.

Mahon's contribution is the recognition that a restriction may be functionally equivalent to an appropriation. It is not itself a test. A court that decides a modern case by asking only whether the regulation went “too far” has not applied a standard; it has restated the question.

New York City's Landmarks Preservation Law designated Grand Central Terminal a landmark, subjecting alterations to the approval of the Landmarks Preservation Commission. Penn Central and a lessee proposed a fifty-three-story office tower above the Terminal. The Commission rejected two schemes, one cantilevered over the existing structure and one requiring the removal of a portion of the facade.

The Court, per Justice Brennan, held that no taking had occurred. The Terminal continued in its existing and profitable use as a transportation terminal with substantial rental income; the owner had not shown that a smaller or differently designed addition would be refused; the designation was part of a comprehensive city-wide plan rather than an isolated singling out; and the transferable development rights available to Penn Central, though not necessarily full compensation, mitigated the burden.

Two structural holdings matter more than the result. The first is the parcel-as-a-whole rule: “Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.” The claimant could not treat the air rights as the property taken. The second is the identification of the three considerations that govern the residual inquiry.

Justice Rehnquist, joined by the Chief Justice and Justice Stevens, dissented, emphasizing that the designation singled out a small number of properties for burdens borne by no one else and that the reciprocity of advantage characteristic of zoning was therefore absent. That objection continues to shape litigation over historic designation and over single-parcel regulation generally.

The Court identified the economic impact of the regulation on the claimant, the extent to which the regulation has interfered with distinct investment-backed expectations, and the character of the governmental action. It described the inquiry as “essentially ad hoc” and “factual.”

Three cautions follow. Penn Central is not a three-element test: a claimant does not fail because one consideration is neutral. It is not a formula: the considerations are not weighted, scored, or summed. And it establishes no thresholds: the Court has never held that a stated percentage of value loss, a stated period of delay, or a stated number of remaining uses is dispositive.

Economic impact is measured against the parcel as a whole and by reference to what remains, not to what has been lost. The controlling question is whether the owner retains economically viable use, not whether the regulation has eliminated the highest and best use.

The reported decisions sustaining regulation involve very large diminutions. Hadacheck involved an alleged reduction of roughly ninety-two percent; Euclid involved seventy-five percent; and in each the regulation was upheld. It does not follow that ninety percent is a safe harbour for government or that any figure is a trigger for the owner. The figure is evidence of severity, weighed with the other considerations.

The expectation must be distinct — concrete rather than aspirational — and objectively reasonable. Relevant matters include the use in existence at acquisition, the permits held, the expenditures made, the regulatory regime then in force, the degree to which the industry is pervasively regulated, and the foreseeability of the restriction.

This consideration is related to, but not identical with, the vested-rights doctrine of Chapter 29. Vested rights ask whether the owner has acquired immunity from a subsequent zoning change, ordinarily on the strength of a lawfully issued permit plus substantial good-faith expenditure. Investment-backed expectations ask how heavily the interference weighs in a constitutional balance. An owner may lack vested rights and still prevail under Penn Central, and an owner with vested rights may have no need of the Clause at all.

The Court contrasted a physical invasion by government with a public programme adjusting the benefits and burdens of economic life. The former weighs heavily toward a taking; the latter weighs against.

The factor retains significance after the development of the categorical physical-takings rules. Not every physically flavoured burden is a Loretto occupation or a Cedar Point access right, and where it is not, the physical character of the intrusion still informs the balance. Conversely, reciprocity of advantage — the mutual restraint that makes ordinary zoning tolerable — bears on character where the burden is widely shared.

After Lingle, this factor must not be used to smuggle back the question whether the regulation substantially advances a legitimate state interest. Character concerns the nature of the burden, not the efficacy of the regulation.

Every takings ratio has a numerator and a denominator. The numerator is the value or use destroyed; the denominator is the property against which the destruction is measured. The choice of denominator frequently decides the case.

Suppose a wetlands rule forbids development on five acres of a hundred-acre tract. If the relevant property is the five acres, the deprivation is total and Lucas is in play. If it is the hundred acres, the deprivation is five percent and the claim is a weak Penn Central claim. Nothing in the record changes; only the unit of analysis changes.

The practice of narrowing the denominator to the precise interest regulated is conceptual severance. It may be spatial (the regulated acres), functional (the air rights, the support estate, the right to exclude), or temporal (the months of a moratorium). Penn Central rejected functional severance, Tahoe-Sierra rejected temporal severance, and Murr addresses spatial severance.

The rule is that the claimant's property is evaluated as a whole rather than divided into segments to ask whether rights in a segment have been abrogated. It is a rule of measurement, not a rule of ownership, and it applies to both the economic-impact analysis under Penn Central and the total-deprivation inquiry under Lucas.

Mahon is not to the contrary once the peculiarity of Pennsylvania's separately recognized support estate is understood. The modern Court has treated Mahon as a case in which the estate destroyed was itself the relevant property under state law — an explanation offered in Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987), which sustained a materially similar subsidence statute on a record showing that only a small fraction of the coal was affected.

The Murrs owned two contiguous riverfront lots, E and F, conveyed to them separately by their parents. A county ordinance implementing state shoreland regulation prohibited the separate sale or development of substandard adjoining lots in common ownership — a merger provision. The family wished to sell Lot E and develop Lot F.

The Court, per Justice Kennedy, held that the two lots must be evaluated as a single parcel and that no taking had occurred. It rejected both bright-line proposals: the owners' rule that lot lines drawn by state law always control, and the State's rule that state law's definition of the parcel is conclusive. In their place the Court adopted a multifactor inquiry into the treatment of the land under state and local law, including the reasonable restrictions on which the owner should have been on notice; the physical characteristics of the land, including topography, the environmental setting, and the presence of federal, state, or local regulation of an unusually burdened area; and the prospective value of the regulated land, including any special benefit that common ownership confers, such as the enhanced privacy and value of the combined riverfront holding.

Chief Justice Roberts, joined by Justices Thomas and Alito, dissented on the framework rather than the result, arguing that the relevant parcel should ordinarily be defined by state property law and that the Court's inquiry imports the merits into the threshold question.

Murr does not hold that adjoining parcels in common ownership are always one parcel. Where there is no merger provision, where the parcels are physically distinct, or where local law and practice treat them separately, the factors may point the other way.

Penn Central is the default, but it is not the whole of the law. The Court has recognized narrow categories in which a taking is established without the ad hoc balance: permanent physical occupation, appropriation of a right of access, appropriation of personal property, and total deprivation of all economically beneficial use of land. Exactions are governed by a separate doctrine drawn from unconstitutional conditions.

Classification therefore precedes analysis. A claimant who argues a Loretto occupation as if it were a Penn Central balance concedes a case he should win; a claimant who argues Lucas on a ninety-percent loss loses a case he might have won on Penn Central.

Where government acquires title, dispossesses the owner, permanently floods the land, or authorizes a permanent physical presence, the case is a physical taking and no balancing occurs. The Court has explained the distinctive treatment by reference to the bundle of rights: a permanent physical occupation destroys the rights to possess, to use, and to exclude, and it does so absolutely as to the space occupied.

Title is not required. The government need not take a deed; authorizing a third party to occupy is enough, as Loretto and Cedar Point both show.

A New York statute required landlords to permit the installation of cable television facilities and capped compensation at one dollar. The installation on Mrs. Loretto's building consisted of half-inch cable, two directional taps, and two silver boxes occupying roughly one and one-half cubic feet.

The Court, per Justice Marshall, held that a permanent physical occupation authorized by government is a taking without regard to the public interests it may serve or the size of the occupation. The remand concerned only the amount of compensation, which might well be nominal. Justice Blackmun dissented, arguing that the majority's line between permanent occupation and temporary invasion was formalistic.

Two limits are frequently overlooked. Loretto governs occupation, not regulation of the use of occupied space: the Court distinguished ordinary landlord-tenant regulation, including requirements that a landlord install facilities of his own. And the rule concerns permanence; a transient invasion is analyzed under Penn Central.

A federal marketing order required raisin handlers to set aside a percentage of each crop for a reserve controlled by the Raisin Administrative Committee, with any net proceeds returned to the growers. The Hornes refused and were assessed a fine and the value of the withheld raisins.

The Court, per Chief Justice Roberts, held that the reserve requirement was a per se physical taking. Its central propositions are three: the Takings Clause protects personal property with the same force as real property; the government's appropriation of title to a portion of the crop is an appropriation, not a use restriction; and the possibility of a contingent share of net proceeds does not convert an appropriation into a voluntary exchange. The Court also rejected the contention that the growers voluntarily submitted by choosing to sell raisins in interstate commerce.

Horne corrects the widespread assumption that regulatory-takings law is a law of land. It is a law of property.

A California regulation gave union organizers a right to enter agricultural employers' property for up to three hours a day, 120 days a year. The growers sued, contending that the access regulation appropriated an easement.

The Court, per Chief Justice Roberts, held that the regulation effected a per se physical taking because it appropriated the owners' right to exclude. Permanence in the sense of continuous occupation is not required; a right of periodic entry is an appropriation of a property right. Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, arguing that a temporary and intermittent right of entry is a restriction on use to be analyzed under Penn Central.

The majority expressly identified limits, and they must be stated with the rule. Isolated physical invasions not undertaken pursuant to a granted right of access are trespasses, remediable at law rather than compensable as takings. Background limitations on the right to exclude — necessity, abatement of nuisance, entry to effect an arrest, the common-law privileges — are not takings. And the government may require entry as a reasonable condition on the grant of a benefit or a licence, including health-and-safety inspection regimes.

It is therefore an error to conclude that every regulatory inspection right is a Cedar Point taking. The distinction lies between the appropriation of an access easement in gross and a reasonable condition attached to a discretionary benefit or to a pervasively regulated activity.

David Lucas bought two beachfront lots on the Isle of Palms for $975,000 in 1986, intending to build single-family houses of the kind already standing on adjacent lots. In 1988 the South Carolina Beachfront Management Act established a baseline seaward of which no permanent habitable structure could be erected, and the lots fell entirely within the prohibition. The trial court found as a fact that the lots had been rendered valueless.

The Court, per Justice Scalia, held that where regulation denies an owner all economically beneficial or productive use of land, compensation is required without case-specific inquiry into the public interest advanced — subject to one exception. The State may resist compensation only by identifying background principles of the State's law of property and nuisance that already prohibited the use as an incident of the owner's title.

The Court gave the exception content by example: an owner of a lakebed may be denied a permit to fill it where the filling would flood others' land; a nuclear plant built on a fault line may be ordered removed. The relevant inquiry is objective and doctrinal — what the law of nuisance and property would have permitted — not whether the legislature has declared the use harmful.

Justice Blackmun and Justice Stevens dissented, the former disputing the finding of total valuelessness and the latter objecting to the categorical form of the rule. On remand South Carolina was unable to establish a background principle, and the case settled after a compensation award. The practical significance of Lucas has always been narrower than its fame: total deprivation is rare, and most claims that invoke it are decided under Penn Central.

A regulation that deprives land of all economically beneficial or productive use is a categorical taking unless background principles of state property and nuisance law independently prohibited the use. That is the rule, and its terms are exacting.

It applies to land. It requires deprivation of all economically beneficial use, measured against the parcel as a whole. It is not a rule about severe loss, and the Court has since described a ninety-five percent loss as falling outside it and inside Penn Central. It is not a rule about market value alone: land retaining a permitted use — agriculture, recreation, camping, sale to a neighbour for assemblage — is not deprived of all economically beneficial use even if its residential development value is destroyed.

The background-principles exception is the doctrinal bridge between Chapter 28 and this chapter. What the law of private and public nuisance, of the public trust, of navigational servitudes, of water law, and of the customary rights recognized in some States would have forbidden was never part of the owner's title, and its prohibition therefore takes nothing.

Two disciplines are required. First, the principle must be genuinely antecedent: it must derive from the State's existing law of property and nuisance, not from the challenged enactment. A legislature cannot create a background principle by declaring in the preamble of the statute under review that the prohibited use is a nuisance. Second, the inquiry is particular: the question is whether this use, on this land, in these circumstances would have been enjoinable, and it therefore requires the gravity-and-utility analysis of Chapter 28 rather than a generic appeal to environmental harm.

Conversely, the exception is not a revival of the noxious-use doctrine of Mugler and Hadacheck as a general exemption. Lucas rejected that formulation precisely because harm prevention and benefit conferral are interchangeable descriptions of the same regulation.

After a flood destroyed the buildings of a church camp in a canyon, Los Angeles County adopted an interim ordinance barring reconstruction in the flood protection area. The California courts, following their own precedent, held that the only remedy for an excessive regulation was invalidation, and refused to consider damages.

The Supreme Court, per Chief Justice Justice Rehnquist, reversed on the remedial question alone. Where a regulation has effected a taking, invalidation is not a sufficient remedy: the Constitution requires compensation for the period during which the taking was in effect. The Court assumed, without deciding, that a taking had occurred, and on remand the California courts held that the ordinance was a valid safety measure and no taking at all.

First English is therefore a remedies case. It establishes that temporary takings are compensable; it does not establish that temporary restrictions are takings.

The Tahoe Regional Planning Agency imposed two successive moratoria totalling thirty-two months on development in the Lake Tahoe basin while it formulated a plan to arrest the eutrophication of the lake. Landowners argued that during the moratoria they had been deprived of all economically beneficial use and that Lucas therefore applied.

The Court, per Justice Stevens, rejected the argument. The Lucas categorical rule addresses the permanent obliteration of value; extending it to temporary restrictions would require temporal severance — slicing the fee into the period of the moratorium and treating that slice as the property taken — which Penn Central's parcel-as-a-whole rule forbids. Interests in land are defined temporally as well as spatially, and the fee continued to have value.

Moratoria are therefore analyzed under Penn Central, with attention to duration, the diligence and good faith of the planning process, the reasonableness of the delay in the ordinary course of development regulation, and the owner's expectations. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, arguing that a total prohibition for a definite term is a taking of a term of years.

The rule is not that temporary restrictions can never be takings. An extraordinary delay, a moratorium employed in bad faith to depress value before condemnation, or a restriction extended indefinitely may all be compensable, and First English supplies the remedy when they are.

Anthony Palazzolo's corporation acquired waterfront salt marsh in 1959. Rhode Island adopted wetlands regulations in 1971. In 1978 the corporation's charter was revoked and title passed to Palazzolo individually. The state courts held that because he acquired title after the regulations were in force, he was on notice and could assert no takings claim.

The Court, per Justice Kennedy, reversed that holding. A regulation in force at acquisition does not become a background principle merely by virtue of its existence, and the State's rule would put an expiration date on the Takings Clause: after one transfer, the right would be extinguished, and the owner's ability to convey the full value of the land would be impaired.

The Court nonetheless affirmed the rejection of the Lucas claim, because the parcel retained development value of some $200,000 on the upland portion, and remanded the Penn Central claim. Justice O'Connor's concurrence, which has been influential in the lower courts, insisted that the regulatory regime in force at acquisition remains one of the circumstances bearing on the reasonableness of investment-backed expectations; Justice Scalia's concurrence disagreed.

The corrected proposition is narrow and important: post-enactment acquisition is not a bar to a takings claim, but it is not irrelevant to the Penn Central balance.

An exaction is a condition attached to a discretionary land-use approval requiring the applicant to convey land, grant an easement, provide public access, construct or fund infrastructure, dedicate open space, or pay money in mitigation of the project's effects. Exactions are ubiquitous and, in the main, lawful; they are how the marginal public costs of development are internalized.

The constitutional problem is one of unconstitutional conditions. Government may not require a person to surrender a constitutional right — here, the right to compensation for property that could not be taken outright without payment — as the price of a discretionary benefit. The doctrine is prophylactic: it addresses the leverage inherent in the permitting process, where the applicant's need for approval may induce acquiescence in demands that could never be imposed directly.

The response is heightened scrutiny of the fit between the condition and the impact. Nollan supplies the qualitative requirement, Dolan the quantitative one, Koontz extends both beyond conveyances of land and beyond granted permits, and Sheetz forecloses a categorical exemption for legislatively imposed conditions.

The Nollans sought a permit to replace a small beachfront bungalow with a larger house. The California Coastal Commission conditioned approval on the grant of a lateral public easement across the dry sand between the mean high tide line and the seawall, justifying the condition by the new house's interference with the public's visual access to the beach.

The Court, per Justice Scalia, held the condition a taking. Had the easement been demanded outright it would have been a Loretto occupation. It could be demanded as a permit condition only if it served the same governmental purpose as the development ban that could legitimately have been imposed — that is, only if there was an essential nexus between the condition and the impact. A visual-access problem is not remedied by a right to walk along the sand; the condition was, in the Court's phrase, an out-and-out plan of extortion.

Nollan is the qualitative test: the condition must address the very impact that would justify denial.

Florence Dolan sought to nearly double the size of her plumbing and electrical supply store and to pave a thirty-nine-space parking lot. The city conditioned approval on the dedication of the portion of her lot lying within the Fanno Creek floodplain as public greenway, and of an additional fifteen-foot strip for a pedestrian and bicycle pathway.

The Court, per Chief Justice Rehnquist, accepted that a nexus existed — the development would increase impervious surface and storm-water runoff, and would generate additional vehicle trips — but held that nexus is not enough. The city must make some individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development. That standard the Court called rough proportionality; no precise mathematical calculation is required, but a quantified showing of some kind is.

On the record the city failed twice. It never explained why public access to the greenway, rather than a private floodplain easement, was necessary to its drainage objective, and it found only that the pathway could offset traffic demand rather than that it was likely to do so in a degree proportional to the burden. The Court also shifted the burden of the individualized showing to the government, an allocation it justified by the adjudicative rather than legislative character of the decision.

The pairing to memorize is simple. Nollan asks whether the condition addresses the right problem. Dolan asks whether it does so in the right amount.

Coy Koontz sought to develop 3.7 acres of a 14.9-acre parcel, most of it wetlands, offering a conservation easement over the remainder. The District refused unless he either reduced the development and deeded a larger easement or paid for improvements to District-owned wetlands several miles away. He refused, and the permit was denied.

The Court, per Justice Alito, held two things. First, Nollan and Dolan apply where the permit is denied because the applicant refuses the condition; otherwise the doctrine could be evaded by the simple expedient of saying no. Second, they apply to monetary exactions, because a demand for money in lieu of a dedication operates on identical incentives; the Court distinguished taxes and user fees, which remain outside the doctrine.

Justice Kagan, joined by three Justices, dissented from the monetary holding, warning that it draws courts into the ordinary work of impact-fee administration and that the line between a monetary exaction and a tax is unstable. The Court left the remedy to state law, noting that Nollan and Dolan are conditions on the exercise of the permitting power and that a denial does not necessarily generate a compensation award.

George Sheetz applied for a permit to place a manufactured home on his lot and was required to pay a traffic-impact fee of $23,420, calculated from a rate schedule adopted by the County's Board of Supervisors as part of its general plan. The California courts rejected his Nollan/Dolan challenge on the ground that those cases apply only to conditions imposed on an individual and discretionary basis, not to fees imposed by legislation.

The Supreme Court, in a unanimous opinion by Justice Barrett, vacated. Nothing in the text or history of the Takings Clause supports a distinction between legislative and administrative permit conditions; the Clause does not distinguish between the branch of government that acts, and legislatures are not immune from its constraints.

The Court's holding must be stated with equal care for what it did not decide. It did not hold the El Dorado fee unconstitutional; it remanded. It did not decide whether a permit condition must be tailored with the same degree of specificity to a class of properties as to an individual parcel. It did not decide whether the fee was a valid exercise of the taxing power, whether Nollan/Dolan applies to fees imposed on a broad class, or how proportionality is to be demonstrated for a schedule rather than a parcel. Several concurrences — by Justices Sotomayor, Gorsuch, and Kavanaugh — flagged exactly those reserved questions. Sheetz forecloses a categorical exemption; it does not invalidate development impact fees.

Hawaii capped the rent that oil companies could charge dealers leasing company-owned service stations. Chevron argued, and the lower courts held, that the statute failed to substantially advance a legitimate state interest — a formulation drawn from a sentence in Agins v. City of Tiburon, 447 U.S. 255 (1980) — and therefore effected a taking.

The Court, unanimously through Justice O'Connor, disavowed the Agins formulation as a takings test. The inquiry into whether a regulation effectively advances its objective is a due-process inquiry into the validity of the regulation; it reveals nothing about the magnitude or character of the burden imposed on private property, and a regulation that fails it is invalid, not compensable. Compensation is an illogical remedy for an ineffective statute.

Lingle also supplied the taxonomy this chapter uses. Outside the exactions context, a regulatory action is compensable only if it is a Loretto permanent physical invasion, a Lucas total deprivation, or a taking under the Penn Central factors; and each of those inquiries asks about the burden's functional equivalence to a direct appropriation.

The lesson to carry forward from Chapter 29 is therefore doctrinal, not rhetorical. Validity and compensability are different questions, tested by different standards, with different remedies.

Classify before analyzing. The table states, for each species of governmental action, the trigger, the governing framework, the principal authority, and the compensation inquiry that follows.

The Clause protects property, not wealth. An expectation of continued profitability, a hope of favourable regulation, or a competitive advantage is not property. What is protected is an interest recognized as property by an independent source of law, ordinarily state law, whose consequences upon governmental interference are then determined by federal constitutional law.

The recognized interests include the fee and lesser estates in land; leaseholds; easements, profits, and other servitudes; liens and security interests; personal property, tangible and (as Horne shows) fungible; the several rights within the bundle, of which the right to exclude is the most jealously protected; development rights, where state law makes them severable and transferable; mineral and support estates, where state law recognizes them as distinct; and water rights, in the form and to the extent that state law confers them.

Contractual rights and choses in action are property for some purposes, but the analysis is delicate: an interest that exists only as a claim against the government under a regulatory scheme may be defeasible by amendment of the scheme. Interest earned on a principal fund is property of the owner of the principal. Trade secrets are property, and their compelled disclosure may be a taking where confidentiality was reasonably expected.

Two cautions govern the whole section. State law creates; federal law protects. And the existence of a protected interest does not answer whether it has been taken — that is the classification exercise of Parts V and VI.

Whether property has been taken and whether the taking is for public use are different questions with different consequences. If property has been taken for public use, the owner is entitled to compensation. If property has been taken for a purely private purpose, the taking is unconstitutional and compensation will not cure it.

Kelo v. City of New London, 545 U.S. 469 (2005), sustained the condemnation of unblighted homes for transfer to a private developer as part of an integrated economic-development plan, holding that public use means public purpose and that courts owe deference to legislative judgments of public need. Justice Kennedy's concurrence reserved review for takings intended to favour a particular private party, and Justice O'Connor and Justice Thomas dissented in terms that provoked statutory reform in a large majority of States.

Kelo is treated here only so far as is necessary to complete the constitutional framework; the detailed law of eminent domain, valuation, and condemnation procedure belongs to the later treatment reserved for it.

The recurring student error to be corrected is the assumption that a taking is unconstitutional because compensation is owed. The Constitution contemplates takings. It requires payment.

A regulatory-takings claim cannot be adjudicated until it is known what the regulation permits. Until the responsible body has reached a final position on the use to which the land may be put, a court cannot measure economic impact, evaluate expectations, or characterize the governmental action.

Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985), stated two requirements: the government must have reached a final decision, and the owner must have sought compensation through available state procedures. The second requirement has been overruled. The first survives, and remains the principal procedural obstacle in regulatory-takings litigation.

Finality is satisfied by a definitive position on the application of the regulation to the property; it does not require the owner to submit repeated and increasingly modest applications until the point of futility, though a single denial of an unreasonably ambitious proposal will ordinarily not suffice. Facial claims, physical-occupation claims, and claims where further application would be futile are treated differently.

A township ordinance required that any cemetery on private land be kept open to the public during daylight hours, and authorized code officers to enter property to determine the existence of a cemetery. Rose Mary Knick, whose farm contained a small family burial ground, sued in federal court and was dismissed under Williamson County's state-litigation requirement.

The Court, per Chief Justice Roberts, overruled that requirement. A property owner suffers a violation of the Fifth Amendment when the government takes property without paying for it, and a claim under 42 U.S.C. § 1983 accrues at that moment; the availability of a later state remedy does not defer the constitutional injury. The Court also observed that the state-litigation rule had, in combination with the preclusive effect of state judgments recognized in San Remo Hotel v. City & County of San Francisco, 545 U.S. 323 (2005), operated as an effective bar to any federal forum.

Justice Kagan, joined by three Justices, dissented, arguing that the Clause is violated only by the failure to pay and that the majority discarded a century of precedent and would flood the federal courts.

Knick abolished the state-litigation requirement. It did not abolish ripeness. The final-decision requirement is a distinct doctrine, unaffected by the decision, and continues to dispose of a great many claims.

The Pakdels held a tenancy-in-common interest in a San Francisco building and, in the course of converting it to condominiums, were required by the city's programme to offer their tenant a lifetime lease. They sought an exemption after the deadline, were refused, and sued; the Ninth Circuit dismissed for want of a ripe claim because they had not requested the exemption through the prescribed procedure in a timely fashion.

The Supreme Court reversed per curiam. The finality requirement is relatively modest: it asks whether the government has reached a definitive position that inflicts a concrete injury, not whether the owner has complied with every administrative procedure. Administrative exhaustion is not a condition of a § 1983 takings claim, and the city had made clear that it would not budge.

Pakdel therefore separates two ideas that are commonly conflated. Finality concerns the government's position; exhaustion concerns the claimant's procedural diligence. Only the first is required.

The remedial structure follows from the text. Government may take private property for public use provided it pays. The ordinary judicial response to a proven taking is therefore an award of compensation, not an injunction against the regulation.

Two qualifications matter. Where the taking is not for public use, compensation is not the remedy and the action is enjoined. And where the regulation is independently invalid — ultra vires, procedurally defective, or violative of another constitutional provision — the remedy is invalidation on that ground, which is not a takings remedy at all. Government may also, after a judgment, elect to rescind the regulation and pay for the interim period, which is the practical consequence of First English.

The standard measure is the fair market value of the interest taken at the time of the taking — what a willing buyer would pay a willing seller, neither being under compulsion, in the property's highest and best use. The owner's subjective valuation, business losses, and relocation costs are ordinarily excluded, subject to statutory relocation assistance.

Where the taking is partial, compensation is measured by the value of the part taken plus severance damages to the remainder, offset in most jurisdictions by any special benefits conferred on the remainder. Where the taking is temporary, compensation is ordinarily the rental value of the use denied during the period, with interest from the date of taking as part of the constitutional entitlement.

Detailed valuation practice — the unit rule, comparable sales, capitalization of income, cost less depreciation, and the treatment of fixtures, leaseholds, and mineral interests — belongs to the eminent-domain treatment reserved elsewhere in the canonical architecture and is not duplicated here.

Against state and local defendants, the vehicle is 42 U.S.C. § 1983, which affords a cause of action for the deprivation of federal rights under colour of state law, together with fees under 42 U.S.C. § 1988. After Knick the ripe claim may be filed in federal district court without a prior state compensation action, though state courts remain fully competent and state constitutional claims are frequently pleaded alongside.

Against the United States, § 1983 is unavailable. A claim exceeding $10,000 lies in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491, with smaller claims available in the district courts under the Little Tucker Act; the Tucker Act supplies the waiver of sovereign immunity, and the Takings Clause is the substantive money-mandating provision. The distinction between the two tracks governs forum, limitations, and the availability of injunctive relief, and should be settled before filing.

The Takings Clause asks whether government has appropriated or functionally appropriated protected property so that compensation is due. Substantive due process asks whether the deprivation was arbitrary; procedural due process asks whether the owner received notice and an opportunity to be heard.

Lingle assigns the means-ends inquiry to due process and removes it from the Clause. The practical consequence is that a claimant who can show only that a regulation is ill-designed has stated at most a due-process claim, subject to the deferential rational-basis review that governs economic regulation, and has not stated a takings claim at all.

Chapter 29's inquiry and this chapter's inquiry are sequential, not alternative. A zoning ordinance may be authorized by the enabling act, adopted in accordance with a comprehensive plan, valid under Euclid, immune from due-process attack, and still require compensation as applied to a particular parcel.

The converse also holds. An ordinance may be ultra vires, or spot zoning, or an unlawful delegation, or a violation of RLUIPA or the Fair Housing Act, and be struck down without any takings analysis whatever. Counsel who plead only a takings claim against an invalid ordinance choose the harder path and the weaker remedy.

Chapter 28 supplies the content of Lucas's background-principles exception. Where the use the owner claims would have been enjoinable as a private or public nuisance under the State's law as it stood independent of the challenged regulation, its prohibition takes nothing, because the right to conduct it was never part of the title.

The exception is not, however, a general nuisance exemption from the Clause. It is defeated where the state law of nuisance would in fact have tolerated the use, where the harm is one the legislature has newly identified rather than one the common law recognized, and where the asserted principle is drawn from the challenged statute itself. The analysis is therefore a genuine application of Chapter 28's gravity-and-utility balance, not an invocation of the word nuisance.

Eminent domain is the power; the Takings Clause is the condition on its exercise. Formal condemnation is the procedure by which the power is exercised openly; inverse condemnation is the procedure by which an owner establishes that the power has been exercised in substance without being invoked in form.

The two are constitutionally identical in entitlement and procedurally distinct in almost every other respect: who files, who bears the burden, when the taking is deemed to occur, how compensation is measured and when interest begins, and whether the government may abandon the taking.

The following sequence should be run in order. Steps out of order produce the classic errors: balancing a per se taking, or applying Lucas to a partial loss.

1. What property interest does the claimant possess? Identify the interest under state law: fee, leasehold, easement, lien, mineral or support estate, personalty, water right. If there is no recognized interest, the inquiry ends.
2. What exactly did government do? State the action in operative terms — acquired, occupied, authorized entry, prohibited, conditioned, delayed — not in the parties' characterizations.
3. Was property physically appropriated? Title or dispossession, real or personal, is a per se taking. Horne.
4. Was a permanent occupation authorized? If so, Loretto governs and no balancing occurs, however small the occupation.
5. Was a right of access appropriated? Cedar Point governs, subject to isolated trespass, background limitations, and reasonable conditions on benefits or licences.
6. Was all economically beneficial use of land eliminated? Measure against the parcel as a whole. If yes, Lucas applies.
7. Do background principles independently prohibit the use? If the State's antecedent property and nuisance law barred it, no compensation is due notwithstanding total deprivation.
8. Was approval conditioned on an exaction? Identify the demand: land, easement, improvement, or money; a granted permit or a denial for refusal; administrative or legislative in origin.
9. If so, is there an essential nexus and rough proportionality? Nollan, Dolan, Koontz, and Sheetz. The government bears the burden of the individualized showing.
10. If no categorical rule applies, what does Penn Central indicate? Weigh economic impact, distinct investment-backed expectations, and the character of the governmental action, without thresholds.
11. What is the relevant parcel? Apply the parcel-as-a-whole rule as refined by Murr; this question may need to be answered before steps six and ten.
12. Has government reached a sufficiently final position? Finality under Williamson County's surviving branch, as clarified by Pakdel; exhaustion is not required.
13. What remedy is available? Compensation, not invalidation, in the ordinary case; § 1983 in federal court after Knick against state and local defendants; the Tucker Act against the United States.

Each illustration states facts, identifies the classification, and works the governing framework. The analyses are illustrative applications of doctrine, not predictions of outcome in any actual controversy.

Each entry states the error and then the rule.

1. “If government regulates private property, it has taken it.” Ordinary regulation is not a taking. Property has always been subject to generally applicable law, and compensation is required only where the burden is the functional equivalent of an appropriation.
2. “If property value drops, there is a taking.” Diminution in value is evidence of economic impact, weighed with expectations and character. It is not itself a test.
3. “A fifty-percent loss is automatically a taking.” There is no such rule. Euclid sustained a seventy-five-percent loss.
4. “A ninety-percent loss is automatically a taking.” There is no such rule either. Hadacheck sustained a loss of roughly ninety-two percent, and the Court has treated a ninety-five-percent loss as a Penn Central case.
5. “Penn Central created a mathematical formula.” The Court described the inquiry as essentially ad hoc and factual. The three considerations are not weighted, scored, or summed.
6. “Penn Central is a three-element test.” A claimant does not fail because one consideration is neutral, nor prevail because one is strong.
7. “Mahon's ‘too far’ language is itself the test.” It is a description of the constitutional problem. The operative frameworks are Penn Central and the categorical rules.
8. “Lucas applies whenever property loses most of its value.” Lucas requires deprivation of all economically beneficial or productive use of land, measured against the parcel as a whole.
9. “Lucas means only zero market value matters.” The test is economically beneficial or productive use, not a valuation of zero. Land retaining agricultural, recreational, or assemblage value is not within the category, and conversely a nominal residual value does not automatically defeat a claim.
10. “Government may prohibit anything without compensation by calling it a nuisance.” Lucas rejected the noxious-use rationale as a general test. Only background principles of the State's antecedent property and nuisance law defeat a total-deprivation claim.
11. “A legislature can create a background principle in the statute under review.” The limitation must already inhere in the owner's title; the challenged enactment cannot supply it.
12. “Every physical intrusion is analyzed under Penn Central.” Permanent physical occupations are per se takings under Loretto, and appropriations of access are analyzed as physical takings under Cedar Point.
13. “Government must acquire title before a physical taking occurs.” Authorizing a third party to occupy, or to enter, suffices. Loretto; Cedar Point.
14. “The Takings Clause protects only real estate.” Horne holds that personal property receives the same protection.
15. “Every inspection requirement is a Cedar Point taking.” The Court preserved isolated trespasses, background limitations on the right to exclude, and reasonable access conditions attached to benefits, licences, and health-and-safety regimes.
16. “Temporary regulations can never be takings.” First English holds that where a temporary taking has occurred compensation is owed for the period of the deprivation.
17. “Every development moratorium is a taking.” Tahoe-Sierra rejects temporal severance; a moratorium is ordinarily analyzed under Penn Central, with attention to duration and good faith.
18. “Buying after regulation extinguishes all takings rights.” Palazzolo rejects that rule; the regulation does not become a background principle merely by predating the purchase.
19. “Notice of the regulation at acquisition is irrelevant.” It is not a bar, but it remains one circumstance bearing on the reasonableness of investment-backed expectations.
20. “Adjoining parcels in common ownership are always one parcel.” Murr adopts a multifactor inquiry, not a rule of automatic aggregation.
21. “Nollan and Dolan apply only where government demands land.” Koontz extends them to monetary exactions.
22. “Exactions doctrine does not apply when the permit is denied.” Koontz holds that it does; otherwise the doctrine could be evaded by refusing rather than conditioning.
23. “Nexus and proportionality are the same requirement.” Nollan asks whether the condition addresses the impact that would justify denial; Dolan asks whether it does so in an amount roughly proportional to that impact, on an individualized determination.
24. “Legislative exactions are categorically exempt from Nollan and Dolan.” Sheetz forecloses that exemption.
25. “Sheetz invalidated development impact fees.” It decided only the legislative-exemption question and remanded, expressly reserving whether and how Nollan/Dolan applies to generally applicable fee schedules.
26. “A regulation that fails to substantially advance a legitimate state interest is a taking.” Lingle removed that formulation from takings law; the inquiry belongs to due process, and the remedy for an ineffective regulation is invalidation, not compensation.
27. “The police power and the Takings Clause are mutually exclusive.” A valid exercise of the police power may nonetheless require compensation. That is the whole point of Mahon.
28. “A taking is automatically unconstitutional.” The Clause permits takings for public use on payment of just compensation.
29. “Public use and taking are the same question.” They are separate. A taking for a private purpose cannot be cured by payment; a taking for public use is cured by payment.
30. “Knick abolished takings ripeness.” It abolished the state-litigation requirement only. The final-decision requirement survives.
31. “An owner must sue in state court before filing a federal takings claim.” Knick holds otherwise; the § 1983 claim accrues when the property is taken without compensation.
32. “Finality means exhaustion of every administrative procedure.” Pakdel holds that it does not. Finality concerns the government's position, not the claimant's procedural diligence.
33. “A court must invalidate a regulation whenever a taking occurs.” The ordinary remedy is compensation. Invalidation follows only where the taking is not for public use or the regulation is independently invalid.
34. “Inverse condemnation and eminent domain are the same procedure.” The entitlement is the same; who files, who bears the burden, and how compensation is measured and timed are not.
35. “The federal standard is the only standard.” Many state constitutions compensate property damaged as well as taken, and state courts may afford greater protection as a matter of independent state law.

The Takings Clause conditions the appropriation of private property on payment; it does not forbid it. A complete analysis therefore asks four separate questions — protected property, taking, public use, just compensation — and resists the temptation to compress them into a general sense of unfairness.

Classification precedes analysis. Physical appropriations, permanent occupations under Loretto, appropriations of access under Cedar Point, appropriations of personalty under Horne, and total deprivations of land under Lucas are governed by categorical rules. Permit conditions are governed by the unconstitutional-conditions requirements of nexus and rough proportionality, which reach money and denials after Koontz and are not escaped by legislative form after Sheetz. Everything else is Penn Central, an ad hoc balance of economic impact, distinct investment-backed expectations, and the character of the governmental action, conducted against the parcel as a whole and, where the boundary is contested, against the parcel identified by the Murr factors.

Lingle keeps the field honest by separating the validity of a regulation from its compensability, and Knick and Pakdel define the procedural path: no state compensation suit is required, but a final governmental position is. The remedy, in the ordinary case, is money.

Part IX closes here. Chapters 28, 29, and 30 have described the public-law overlay upon private ownership: the judicial regulation of conflicting uses, the legislative regulation of land use under the police power, and the constitutional limit that converts regulation into an obligation to pay. The remainder of Volume I turns from the public regulation of ownership to its private transfer.

Chapter 31 opens Part X — Conveyancing with Contracts for the Sale of Land: the Statute of Frauds and its part-performance exception, equitable conversion and the allocation of risk, marketable title, time of performance, remedies for breach, and the doctrine of merger by deed. The transaction that Part IX regulated from without is now examined from within.

• Chapter 28 — Nuisance (supplying the content of Lucas background principles).
• Chapter 29 — Zoning and the Police Power (validity of land-use regulation).
• Chapter 31 — Contracts for the Sale of Land (Part X — Conveyancing).
• Daniel R. Mandelker, Land Use Law, ch. 2 (takings) and ch. 10 (exactions).
• Nichols on Eminent Domain (rev. 3d ed.), chs. 1, 6, 12 (public use, compensation, partial takings).
• Frank I. Michelman, Property, Utility, and Fairness, 80 Harv. L. Rev. 1165 (1967).
• Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964).
• Restatement (Second) of Torts §§ 826–831 (gravity and utility, applied through Lucas).