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Procedure To Effect A Taking

A. Condemnation

A judicial proceeding brought to obtain title and compute the compensation due.

B. Inverse Condemnation

Often the state will restrict a landowner’s use of property through regulation without exercising its power of eminent domain and without paying compensation. The landowner may nevertheless bring suit and attempt to force the state to obtain title and pay just compensation.

There exists no set formula by which plaintiffs can argue that a taking has been effectuated. Nevertheless, courts consider several factors.

a. The action does not benefit the public. The government action must directly promote a legitimate public use to be a valid exercise of the police power. If not, the state must compensate for past injury and cannot continue the activity even if compensation is given.

3. Reasonable Return or Diminution in Value Test
When an owner can no longer realize a reasonable return on his investment, a taking occurs regardless of the public benefit.

B. Temporary Takings

If a regulation or ordinance is held to be an unconstitutional taking, an owner shall be compensated for the loss incurred during the period in which the regulation or ordinance was enforced.

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