Document Type

Working Paper

Publication Date

11-19-2003

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Industrial Organization & Regulation eJournals; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; ERN Subject Matter eJournals; delete2

Abstract

What ought to be the nature of an owners right to pursue a regulatory takings claim when the regulation the owner seeks to challenge was in place when the owner acquired the regulated property Some argue that an owner should not be entitled to challenge such a restriction as a Fifth Amendment taking if the property was already impaired by the regulation at the time the owner acquired it Proponents of this view contend that allowing subsequent owners to challenge the enforcement of regulations predating their acquisition of title and of which they had notice would confer undeserved windfalls and reward land speculation to the detriment of the public fiscBut this view of the nontransferability of the regulatory takings claim deemphasizes the impact of the regulation on the property itself and focuses the takings inquiry at the wrong moment in time Regulatory land use controls should be evaluated as restrictions on property and as unrelated to the ownership status of property A rule that limits or bars successive owners from asserting the full takings claim effectively eviscerates the takings clause for many forms of regulatory takings It allows governments to destroy valuable property interests without paying compensation This article emphasizes that the takings claim is a distinct and recognizable form of property that exists independent of the property owner The takings claim is valuable private property and as such should be alienable in a manner consistent with other forms of private property any other approach is tantamount to a judicial taking

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