Government regulations can restrict what a property owner may build, develop, or do on private land. Most restrictions do not rise to the level of a constitutional taking. Some, however, may go so far that they interfere with property rights to an extent that requires compensation.
That raises an important question when the restriction is temporary. Can a property owner recover compensation for a taking that lasts only for a limited period?
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), addressed that question. The U.S. Supreme Court held that when a land-use regulation constitutes a taking, the government may be required to compensate the property owner for the period of the taking. A later decision to withdraw or invalidate the regulation does not automatically eliminate that compensation claim.
The Court did not hold that every temporary land-use restriction constitutes a taking. Instead, First English addressed whether compensation is available when a taking has occurred. Determining whether government regulation has gone far enough to constitute a taking remains a separate question governed by other constitutional principles.
What Happened in First English v. County of Los Angeles?
First English Evangelical Lutheran Church of Glendale owned a 21-acre parcel along the Middle Fork of Mill Creek in the Angeles National Forest. The church operated a camp called Lutherglen on roughly 12 acres of the property. The facility served as a retreat and recreation center for disabled children and included a dining hall, two bunkhouses, a caretaker’s lodge, an outdoor chapel, and a footbridge.
In July 1977, a wildfire burned approximately 3,860 acres of watershed above Lutherglen. The loss of vegetation increased the risk of flooding along the creek. Heavy rainfall the following winter caused flooding that destroyed the Lutherglen buildings.
The County of Los Angeles determined that the increased flood risk created a public safety concern. In January 1979, the County adopted an interim ordinance, Ordinance No. 11,855, prohibiting construction or reconstruction of buildings and other structures within a designated interim flood-protection area. Lutherglen fell within that area.
The church filed suit in California court shortly after the ordinance took effect. It alleged that the ordinance deprived it of the use of the property and sought damages through an inverse condemnation claim.
The trial court struck the church’s damages claim. It relied on Agins v. City of Tiburon, under which California law did not allow an inverse condemnation action based solely on a regulatory taking in the circumstances presented. The California rule contemplated a different remedy if the government ultimately decided to maintain the regulation.
The California Court of Appeal affirmed. The church then appealed to the U.S. Supreme Court.
What Did the Supreme Court Decide in First English?
The Supreme Court reversed in a 6-3 decision authored by Chief Justice Rehnquist. The Court addressed a narrow but important question: when a land-use regulation constitutes a taking, does the Just Compensation Clause require compensation for the period during which the taking was in effect?
The answer was yes.
The Court held that the Fifth Amendment, as applied to the states through the Fourteenth Amendment, requires compensation when a regulatory taking has occurred. The government cannot avoid that obligation simply by later amending or withdrawing the regulation. Ending the restriction does not, by itself, eliminate the owner’s claim for compensation for the period during which the taking occurred.
The Court compared temporary regulatory takings to physical takings. When the government physically occupies private property, returning the property later does not eliminate the obligation to compensate the owner for the period of the government’s occupation. The Court reasoned that the same principle can apply when a regulation temporarily deprives an owner of all use of the property.
As the Court explained, temporary regulatory takings that deny a landowner all use of the property are not fundamentally different from permanent takings for which the Constitution requires compensation.
The decision also recognized that the government may change or withdraw the regulation, or pursue eminent domain if it chooses to acquire the property. Those later actions, however, do not eliminate the obligation to provide compensation for a taking that already occurred.
What Is a Temporary Regulatory Taking?
A regulatory taking can arise when government regulation of private property goes so far that it constitutes a taking under the Constitution, even though the government does not formally acquire title.
The concept derives from the Fifth Amendment’s protection against taking private property for public use without just compensation. The constitutional protection can apply to both physical occupations and certain regulations that substantially interfere with an owner’s property rights.
A temporary regulatory taking involves a restriction that remains in effect for a limited period. The government might later repeal the regulation, a court might invalidate it, or the restriction might expire. Ending the regulation does not necessarily resolve whether a taking occurred during the period it was in effect.
First English established that the temporary nature of a taking does not, by itself, eliminate the possibility of compensation. The threshold question remains whether the government’s regulation actually constituted a taking. If a taking is established, the compensation issue then extends to the period during which the taking occurred.
A temporary regulatory taking also does not require the government to physically enter or occupy the property. The relevant constitutional question concerns the effect of the government’s action on the owner’s property rights, not whether the government holds title to the land.
What First English Did Not Decide
What the Court did not decide is just as important as what it held.
First English addressed the remedy question: whether compensation is available when a temporary regulation is found to constitute a taking. The Court did not decide whether Los Angeles County’s flood ordinance actually constituted a taking. That issue remained for the California courts on remand.
On remand, the California courts determined that the ordinance did not constitute a taking under the applicable legal standard. The church therefore did not prevail on the underlying constitutional claim. The Supreme Court’s decision on the availability of compensation did not establish that the church was entitled to damages.
The Court also distinguished temporary takings from ordinary government regulation. It noted that normal delays in obtaining building permits, changes in zoning ordinances, and similar government actions do not automatically constitute takings. A property owner who experiences a temporary development restriction therefore does not automatically have a takings claim under First English.
The decision also left open the broader question of when regulation goes far enough to constitute a taking. Other Supreme Court decisions address that issue, including Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), which established a multifactor approach for certain regulatory takings, and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), which addressed regulations that deprive property of all economically beneficial use. Kassouni Law contributed amicus curiae briefing in Lucas on behalf of the petitioner.
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), later addressed temporary development moratoria. The Court rejected the idea that a temporary moratorium automatically constitutes a categorical taking of the entire property. The takings analysis considers the relevant property as a whole and the circumstances of the restriction.
First English therefore answers a specific question: when a regulation is found to have caused a taking, can the property owner seek compensation for the period before the restriction ended? The answer is yes. The decision does not establish the test for determining whether a taking occurred.
How First English Relates to California Property Rights
California provides its own constitutional protection for private property. Article I, Section 19 of the California Constitution provides that private property may not be taken or damaged for public use without just compensation.
California’s Constitution expressly refers to property that is both “taken” and “damaged.” That language forms part of California’s independent constitutional protection and supports the state’s inverse condemnation doctrine.
California’s inverse condemnation law allows property owners to seek compensation when qualifying government action takes or damages private property for public use without formal condemnation proceedings.
First English is relevant to this framework because it rejected the idea that a government can avoid compensation for a regulatory taking merely because the restriction is later withdrawn. The decision addressed the federal constitutional compensation requirement rather than creating California’s inverse condemnation doctrine.
The California courts’ approach before First English had required an owner challenging a regulation to pursue certain forms of relief before seeking compensation for a regulatory taking. The Supreme Court rejected the proposition that the Just Compensation Clause provides no damages remedy for a taking simply because the government later chooses to abandon the regulation.
For California property owners, the practical significance is narrower but important: if government regulation is ultimately found to constitute a taking, the temporary nature of that taking does not by itself eliminate the right to seek compensation for the period of the taking. Whether a particular restriction actually constitutes a taking remains a separate legal question.
Temporary Restrictions vs. Compensable Takings
Duration alone does not determine whether a temporary restriction constitutes a compensable taking. First English addressed the remedy available after a taking occurs. It did not eliminate the threshold requirement that the government action must first qualify as a taking.
The legal analysis depends on the type of restriction and the applicable takings doctrine.
Total deprivation: Lucas established a categorical rule for regulations that deprive property of all economically beneficial or productive use, subject to the principles and exceptions recognized by the Court. When some economically beneficial use remains, the Lucas categorical rule generally does not apply.
The Penn Central factors: When a regulation does not fall within a categorical rule, courts may apply the framework from Penn Central. The analysis considers factors including the regulation’s economic impact, its interference with distinct investment-backed expectations, and the character of the government action.
Temporary moratoria: Tahoe-Sierra held that a temporary development moratorium is not automatically a categorical taking simply because it temporarily prevents development. The Court rejected treating the affected period as though it were the permanent deprivation of the entire property. The analysis considers the property and the restriction as a whole.
A restriction that limits some uses may therefore fall short of a taking. Likewise, the temporary elimination of a particular use does not automatically establish a compensable taking. The applicable doctrine depends on the nature and effect of the government action.
First English adds an important remedial principle: when a court determines that a taking occurred, the temporary nature of the taking does not eliminate compensation for the period during which the taking existed.
When Should a Property Owner Seek Legal Review?
Not every government land-use restriction creates a viable takings claim. Certain circumstances, however, may warrant a closer legal review.
A property owner may benefit from legal review when:
- A development moratorium or interim ordinance prevents most or all meaningful use of the property for a significant period.
- A floodplain, environmental, or hazard designation substantially restricts the property’s permitted uses.
- A government agency denies development permits while imposing significant restrictions on the property’s use.
- A regulatory condition requires the owner to dedicate property interests that may be disproportionate to the project’s public impact.
- A government restriction is later withdrawn or amended after significantly limiting the property’s use, raising questions about whether a compensable taking occurred during the restriction period.
- A regulation appears to leave the property without economically beneficial use.
The property’s characteristics, the nature and duration of the restriction, the government’s stated purpose, and the applicable takings doctrine can all affect the analysis. A property owner considering a potential takings claim should have the specific government action and its effect on the property evaluated before assuming that compensation is available.
How First English Fits Into Takings Law
Regulatory takings doctrine has developed through a series of Supreme Court decisions addressing different aspects of the government’s power to regulate private property. First English occupies a specific role within that framework. It established that when a regulation constitutes a taking, the temporary nature of the taking does not eliminate the constitutional obligation to provide compensation for the period during which the taking occurred.
Before First English, California courts had taken the position that an owner could not recover damages for a regulatory taking while the government retained the option to withdraw the regulation. The Supreme Court rejected that approach. A later decision to rescind or amend the regulation does not, by itself, eliminate the obligation to compensate for a taking that already occurred.
A regulatory takings dispute may therefore involve several distinct questions:
- Did the government action constitute a taking? The applicable legal standard depends on the nature of the restriction. Cases such as Penn Central and Lucas address different categories of regulatory takings.
- How long did the taking last? For a temporary restriction, the relevant period can affect the compensation analysis.
- What remedy is available? First English established that the temporary nature of a taking does not prevent an owner from seeking compensation for the period during which the taking existed.
First English therefore should not be viewed as a standalone test for determining whether a government regulation constitutes a taking. Its significance lies primarily in what happens after a taking has occurred, particularly when the government later withdraws or changes the restriction.
Kassouni Law’s constitutional property rights practice addresses disputes involving government regulation, land-use restrictions, and constitutional property rights. The firm’s land use practice also handles disputes involving government decisions that affect private property.
Facing a Government Restriction on Your Property?
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), addressed whether a property owner can seek compensation when a regulatory taking lasts only for a limited period. The Supreme Court held that when a regulation constitutes a taking, the temporary nature of the restriction does not eliminate the government’s obligation to provide compensation for the period of the taking.
The decision does not mean that every temporary restriction constitutes a taking. First English addressed the remedy after a taking has occurred. Whether a particular government action goes far enough to constitute a taking depends on the applicable legal standard and the specific facts.
California property owners facing regulations that substantially restrict or eliminate the use of their land may want to determine whether those restrictions raise constitutional property-rights issues. The nature of the government action, its effect on the property, and the duration of the restriction can all affect the analysis.
Kassouni Law represents property owners in constitutional property-rights disputes, including regulatory restrictions, government land-use decisions, and related inverse condemnation matters. The firm represents private parties exclusively and has never represented a government agency.
Call 877-770-7379 or contact Kassouni Law to discuss the specific facts of your situation. The firm responds to all inquiries within one business day. Submitting a contact form does not create an attorney-client relationship.
Frequently Asked Questions
Can a temporary government restriction be a taking?
Yes, in some circumstances. A temporary restriction that denies a property owner all use of the property can constitute a taking under the Fifth Amendment. First English confirmed that temporary regulatory takings are not categorically different from permanent takings for constitutional purposes. Whether a specific restriction amounts to a taking depends on the nature of the restriction and the applicable legal standard.
Does a temporary taking require compensation?
First English held that it does. If a land-use regulation constitutes a taking under the Fifth Amendment, the government must pay compensation for the period during which the taking was in effect. The government cannot avoid that obligation by later rescinding or invalidating the regulation. Compensation covers the period from when the taking began until the restriction is lifted or the government formally acquires the property through eminent domain.
Does First English mean every temporary restriction is unconstitutional?
No. The Supreme Court addressed the remedy question, not the threshold question of whether any particular restriction constitutes a taking. The Court noted that normal delays in obtaining permits, zoning changes, and variances do not automatically constitute takings. A property owner must first establish that the restriction went far enough to be a taking. First English determines the available remedy once that threshold is met.
What is the difference between a regulatory taking and inverse condemnation?
Inverse condemnation is the claim a property owner brings to seek compensation when the government takes or damages property without formal condemnation proceedings. A regulatory taking is a species of taking in which government regulation, rather than physical occupation, deprives the owner of property rights. Where a regulation constitutes a taking, the property owner may bring an inverse condemnation claim to recover compensation. California’s inverse condemnation doctrine, rooted in Article I, Section 19 of the California Constitution, is broader than the federal standard because it covers property that is “damaged” as well as property that is “taken.”
Can a California property owner challenge a government land-use restriction?
Yes. California property owners have constitutional protections under both the Fifth Amendment to the U.S. Constitution and Article I, Section 19 of the California Constitution. A property owner who believes that a government restriction amounts to a taking may seek compensation through an inverse condemnation claim. The specific facts of the restriction, the property, and the resulting harm determine whether a viable claim exists. Legal deadlines apply. Acting promptly after a government restriction is imposed is important.
What evidence may matter in a temporary takings claim?
Relevant evidence typically includes: the text and history of the regulation; prior permits and approvals; appraisal evidence of value before, during, and after the restriction; evidence of permitted uses; documentation of the owner’s investment expectations; the duration of the restriction; and government communications explaining the restriction. The specific evidence needed depends on which legal theory applies.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. Property rights claims are highly fact-specific. Please consult a qualified California property rights attorney for advice about your specific situation.
