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Regulatory Taking, Eminent Domain, Real Property

Both the Missouri and US Constitutions prohibit the “taking” of private property without just compensation. A “taking” can occur in a variety of situations. It is not just when a government seizes possession of property. A “regulatory taking” occurs when a government regulation goes too far. Clay County ex rel. County Com’n v. Harley and Susie Bogue, Inc., 988 S.W.2d 102, 106 (Mo.Ct. App.1999). When a regulation goes “too far” is determined on a case-by-case basis.

There are two situations in which a landowner is automatically entitled for compensation for a regulatory taking: (1) when the government causes a landowner to suffer an actual physical invasion of his/her property and (2) when a regulation completely deprives a landowner of all economically beneficial or productive use of his/her land. Reagan v. County of St. Louis, 211 S.W.3d 104 (Mo. Ct. App. 2006). In the absence of a per se or automatic taking, there are three (3) factors a court weights when determining whether a compensable taking has occurred: (1) the economic impact of the regulation, (2) the extent to which the regulation interfered with distinct investment-backed expectations and the (3) character of the government action. Id. (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, (1978).

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