Chapter §15.7 REGULATORY TAKINGS

• Jurisdiction: Oregon

§15.7 REGULATORY TAKINGS

Most takings claims allege a taking due to a regulatory decision that limits the use of property. Although regulations do not "take" property in the literal sense, regulatory takings are takings by analogy. When government regulation is "tantamount to" appropriation or physical ouster, a taking occurs, requiring just compensation under Article I, section 18, of the Oregon Constitution. Coast Range Conifers, LLC v. State ex rel. Oregon State Bd. of Forestry, 339 Or 136, 145-46, 150, 117 P3d 990 (2005) ("the framers would have been aware that governmental actions that did not fit precisely within the classic paradigm of a taking still could be 'equivalent to a taking' and thus entitle the owner to compensation").

But under Article I, section 18, if "'a zoning designation allows a landowner some substantial beneficial use of his property, the landowner is not deprived of his property nor is his property "taken."'" Dodd v. Hood River Cnty., 317 Or 172, 182, 855 P2d 608 (1993) (quoting Fifth Avenue Corp v. Washington County, 282 Or 591, 609, 581 P2d 50 (1978)) (emphasis in original).

§15.7-1 Development of Regulatory Takings Doctrine

As discussed in Coast Range Conifers, LLC v. State, 189 Or App 531, 541-42, 76 P3d 1148 (2003), adh'dto on recons, 192 Or App 126, 83 P3d 966 (2004), rev'd, 339 Or 136, 117 P3d 990 (2005), the history of the state and federal takings clauses indicates that they were intended to apply only to physical invasions or appropriations of private property. Yet in 1922, the United States Supreme Court announced that a taking could occur under the Fifth Amendment simply through government regulation that "goes too far," even in the absence of any physical invasion or appropriation. Pennsylvania Coal Co. v. Mahon, 260 US 393, 415, 43 S Ct 158, 67 L Ed 322 (1922). Similarly, the Oregon Supreme Court, while acknowledging that a "classic taking" under Article I, section 18, of the Oregon Constitution occurs when the government physically occupies property, has held that a court can "faithfully apply that principle to modern circumstances" to include government regulatory activity that does not involve a physical invasion. Coast Range Conifers v. State of Oregon, 339 Or 136, 145-46, 117 P3d 990 (2005).

§15.7-2 Regulatory Takings under the Fifth Amendment Compared to Article I, Section 18

Oregon courts make frequent reference to federal constitutional doctrine in this area, so the analysis of regulatory takings under Article I, section 18, of the Oregon Constitution is aided by comparison to the United States Supreme Court's regulatory takings analysis under the Fifth Amendment.

§15.7-2(a) Regulatory Takings under the Fifth Amendment

Regulatory takings jurisprudence is generally considered to have started with Justice Holmes's famous admonition in Pennsylvania Coal Co. v. Mahon, 260 US 393, 415, 43 S Ct 158, 67 L Ed 322 (1922), that a regulation that goes "too far" can amount to a taking requiring just compensation...