What Property Interests Merit Takings Protection?

Abstract

The famous trilogy of 1987 United States Supreme Court takings cases left legal experts, both critics and supporters of land use planning, pleading for a definitive test of whether a regulation has unconstitutionally taken a landowner's property (a regulatory taking). But worse yet is the fact that, since 1987, some cases show a disturbing tendency to further confuse takings law. Specifically, they are ambiguous about what property interests merit protection because they are looked at separately from the remainder of the property to find two different types of takings-regulatory and physical occupancy. In some takings cases, courts have merely separated physical aspects of the property, such as differently zoned areas of land; but in other cases, courts have separated nonphysical aspects, such as the right to inherit, and investment-backed expectations (the landowner's sale or development expectations). This article reviews these unusual takings cases, comments on their consistency with prior takings law, and, in some instances, tells how to deal with these new uncertainties in takings law.