Fifth Amendment Property Rights

Last month we talked about eminent domain, the government’s power to take private land for public use, but developers need to remember that the Fifth Amendment gives private property owners the power to protect their property.  Developers know all too well that entitling and rezoning land can be a costly and time-consuming task. Municipalities typically have pages of regulations, comprehensive plans, and require several preliminary approvals before the entitlement process can be completed.  A city, generally, has little authority to deny the request once a developer successfully completes all of the municipality’s requirements.  

But in cases where denials do occur or when excessive government regulations deprive a property owner of all economically beneficial use, the Fifth Amendment gives property ownersthe right to file a regulatory takings lawsuit against the municipality. Regulatory takings actions can arise from several types of actions including zoning decisions and regulations, denial of wetland permits, building restrictions, and regulations that cause a physical intrusion on the property.  

A recent lawsuit filed in Alabama places the City of Auburn at the center of a regulatory takingscase brought by Donahue Land, LLC and Lake Martin, Inc. In that case, the property owner recently utilized the Fifth Amendment to file a regulatory takings action against the city. The property owner alleged that the city unlawfully denied multiple rezoning requests for theproperty despite years of working to comply with all of the City’s requirements and requests. Theproperty owner alleges that these denials deprived them of the economic benefit of their land and amount to a regulatory taking without just compensation.

Cases like these are a reminder that property owners and developers have remedies under the constitution to protect their property rights.