An Introduction to Regulatory Takings.

Real Estate Law

When most people think about the government taking private property for public use, eminent domain comes to mind. But exercising the power of eminent domain to condemn private property is not the only way that the government can effect a “taking.”

A taking can result from government conduct that results in damage or diminution of a property’s use. It can even occur if the “taking” or damage is merely temporary; for example, when a government entity floods private property.

However, there is still another way in which the government can cause a taking of private property, and that is by …

Government Regulation.

Regulatory takings arise most often in the context of zoning and land use planning practices by local governments. When a government regulation goes too far, it can result in a “taking” of property.

Zoning regulations and restrictions are used by municipalities to control and direct the development of property within their borders.  The primary purpose of zoning restrictions is to divide property within a municipality into zones— residential, commercial or industrial.  How the property within each of these zones can be used (developed) is restricted according to the zone it is in.

The government’s zoning power is quite broad. As a result, municipal laws and regulations, or changes to those laws, may not take into account the effect that the law may have on private property owners. If a government regulation or a change to a regulation (i.e. zoning amendment) is so restrictive that it limits the use of private property to so much  that the regulation deprives the property owner of the reasonable use or value of their property, then a regulatory taking can result.

As with eminent domain, when a regulation effects a “taking” of private property, the government is required to pay the property owner “just and adequate” compensation. In takings cases, what constitutes “just compensation” or “just and adequate compensation” (if you are in Georgia) is a very hotly debated question.

Regulatory Takings vs. Eminent Domain— What’s the Difference?

Many people often confuse eminent domain with regulatory takings. While similar, these are actually two separate concepts.

In eminent domain cases, the government actively takes property (through its condemnation power) for a public purpose. Regulatory takings, on the other hand, are more indirect. They occur not because the government actively takes the property for public use, but because the government is limiting how the property owner can use his property.

In either case, however, if government action affects a taking of private property, the property owner must be compensated.

We Handle Eminent Domain and Regulatory Takings Cases.

For over 30 years, the Law Offices of Mark Weinstein has focused its practice on all aspects of real estate law, including eminent domain and regulatory takings. We serve clients in and around Atlanta, Marietta, Roswell, Sandy Springs, Kennesaw, Forsyth County, and a number of other counties in Georgia. Call 770-888-7707. Or you can contact us here, or send inquiries by e-mail to: lawofficesofmarkweinstein@gmail.com.

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