The False Dichotomy between Physical and Regulatory Takings Analysis: A Critique of Tahoe-Sierra's Distinction between Physical and Regulatory Takings

Peterson, Andrea L.
May 2007
Ecology Law Quarterly;2007, Vol. 34 Issue 2, p381
Academic Journal
This Article examines the line drawn by the U.S. Supreme Court in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency between physical and regulatory takings. Justice Stevens, writing for the Court, asserted that the two types of takings are entirely distinct, that no analogies should be drawn between them, and that physical and regulatory takings claims should be analyzed in a completely different manner from one another. This Article challenges Stevens' approach, arguing that analogies have been and should be drawn between physical and regulatory takings, and that there is no basis for using different principles to analyze physical and regulatory takings claims. Moreover, this Article asserts that in resolving takings claims, courts should focus on why the government deprived the claimant of property, regardless of whether the alleged taking involved a physical invasion or a regulatory use restriction, since the fundamental issue is whether fairness requires the payment of compensation.


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