Alfano Law Office, PLLC

Alfano Law Office, PLLC
Phone: (603) 856-8411 • Fax (603) 290-5521
4 Park Street, Concord, NH 03301
  • Home
  • Real Estate Law
    • Road Law
    • Commercial Real Estate Law
    • Tax Abatements
    • Business Law
  • Estate Planning
  • About Us
    • Paul J. Alfano, Real Estate Attorney
    • John F. Hayes, Attorney
    • Terrie Harman, Attorney
    • Privacy Policy
  • Articles
  • Contact Us
    • Directions
  • Road Law Guide
  • NH Tax Abatement
    • Tax Abatement Team
    • Grounds for Abatement
    • Municipal Application
    • Owners of Properties Outside New Hampshire
    • Transfer Tax Allocation
    • Recent Laws and Rulings
  • Resources and Links
    • Allobar Strategies
    • Calendar and Key Dates
    • Equalization Ratio
    • NAPTA
  • Covid-19 Updates
You are here: Home / General / Penn Central Regulatory Takings Claims in New Hampshire

Penn Central Regulatory Takings Claims in New Hampshire

State and local government entities have the ability to use eminent domain authority to force the sale of private property for public projects. See RSA Chapter 498 A. This process aids in the orderly planning and construction of new public infrastructure such as highway widenings. It also gives the landowner the ability to challenge the amount of compensation that the government is offering for the property.

However, when the government takes private property without paying for it, the property owner can file an inverse condemnation (or “takings”) claim. Inverse condemnation actions are based on the government’s unconstitutional taking of property without paying just compensation. These protections are found in the Fifth Amendment to the U.S. Constitution and Part I, Article 12 of the New Hampshire Constitution.

These claims are more apparent when the government physically appropriates private property. For example, the government builds a sidewalk across your front yard without paying for the legal right to do so. Regulations, rather than a physical invasion, may also take property rights and be the basis of compensation in an inverse condemnation action. There are several variations of regulatory takings claims. The most common are reviewed under the standard for partial regulatory takings created by the U.S. Supreme Court decision in Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).

How Penn Central is Applied to Cases

Courts apply the Penn Central analysis to partial takings – meanings those that allege anything less than a total, 100% diminution in value of the property due to the regulation. This standard uses a balancing test. The elements are viewed in their aggregate to determine whether the regulation goes too far and effects a taking of the property. Instead of a strict formula for deciding whether a taking occurred, the Penn Central factors look to the particular circumstances of the case to determine whether compensation is required.

Penn Central identified several factors that are particularly significant in determining whether a regulation effects a taking including:

  • the regulation’s economic impact on the claimant;
  • the extent to which the regulation interferes with the plaintiff’s distinct investment-backed expectations; and
  • the character of the government action.

Economic Impact

This factor typically focuses on the change in fair market value of the property due to the impact of the regulation. This allows a court to compare the value that was taken from the property with the value that remains.

There is not a set threshold of economic damage to a property’s value that results in the finding an unconstitutional taking. However, the impact must be substantial. For example, in the Penn Central decision itself, the court found there to be no taking, even though the regulation caused a 75% diminution in value.

Investment-Backed Expectations

An unconstitutional regulatory taking is more likely to have occurred if the regulation impacts the reasonable, investment-backed expectations of the property owner. This factor requires an inquiry into what the landowner should have anticipated when investing in the property. It commonly looks at the regulations in place when the property was purchased compared to the regulations at the time of the alleged taking.

For example, a taking is more likely where a landowner purchased a property zoned commercial for a gas station and spent money developing the site, only to have the government later preclude the gas station by administratively rezoning the property to a non-commercial zoning district.

On the other hand, a taking is less likely where the property owner only had a subjective desire to use a property for a specific use. For example, if a developer buys a vacant property zoned agricultural in the hopes of later convincing the local government to approve a new residential subdivision, a taking is less likely to have occurred if the government uses their discretion in denying the land use permits.

Character of Government Action

This factor looks to the nature of the government’s action. A regulation is more easily determined to be a taking when it is characterized as a physical invasion of the property rather than a more general public program that adjusts the benefits and burdens of economic life to promote the common good.

Practically this factor encourages courts to look at the context in which the regulation damaged the plaintiff’s property values. A taking is more likely if the regulation singles out a particular individual or certain property owners to bear the burden of the regulation.

You can contact Alfano Law Office here.

Filed Under: General, Legislation, Real Estate Law

The above information is for informational purposes only and does not constitute legal advice.

Important Registry Updates
Important Court Updates

Subscribe to the Alfano Law Property Rights Alert

Sign Up Now

For Email Newsletters you can trust.
Allobar Strategies

NH Tax Abatement

  • Road Law Guide
  • NH Tax Abatement
    • Tax Abatement Team
    • Grounds for Abatement
    • Municipal Application
    • Owners of Properties Outside New Hampshire
    • Transfer Tax Allocation
    • Recent Laws and Rulings
  • Resources and Links
    • Allobar Strategies
    • Calendar and Key Dates
    • Equalization Ratio
    • NAPTA
  • Covid-19 Updates

NH Real Estate Law Articles

  • Common Neighborly Legal Issues
  • Court Updates
  • Easements
  • Estate Planning
  • General
  • Historic Designation
  • Legal Terms
  • Legislation
    • Business Law
  • New Hampshire Property Tax Alerts
  • Private Road Maintenance
  • Private Roads
  • Property
  • Property Investments
  • Property Rights
  • Property Tax Law
  • Quieting Title
  • Real Estate Law
  • Revocable Trust
  • Road Law
  • Tax Abatement
  • Taxes
  • Zoning Boards of Adjustments

Recent Articles

Private Roads and Easements – What’s the Difference?

You probably think there should be a difference between … [Read More...]

Environmental Clean Up on a Property – Who is Responsible?

Environmental issues are everywhere. Hazards like heavy … [Read More...]

Reasons to Review Your Estate Plan

Have you taken the time to set up your estate plan? If you … [Read More...]

What to Know About Maintaining, Repairing, and Extending Easements on a Property

An easement is a piece of land that people, other than the … [Read More...]

Article Archives

  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • October 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • June 2016
  • April 2016
  • March 2016
  • January 2016
  • December 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • September 2014
  • August 2014
  • June 2013
  • February 2012
  • December 2011
  • May 2011
  • July 2010
  • December 2005
  • Facebook
  • LinkedIn
  • Twitter

Alfano Law Office, PLLC, 4 Park Street, Concord, NH 03301 USA | Phone: (603) 856-8411
Copyright © 2022 · Alfano Law Office, PLLC. All Rights Reserved · Website design by InterActive Synergy, LLC