There are three ways that property can be taken requiring the payment of just compensation pursuant to the Fifth Amendment. The first is a “de jure” taking, which in New York follows the filing of a petition to condemn in State Supreme Court, or when the State “appropriates” property by filing of an appropriation map in the County Clerk’s office, which will result in a claim in the Court of Claims. These are the normal, or de jure condemnation proceedings with which we are familiar. But, a taking can also happen in two other ways. The second is by an “inverse” taking. The third is by a “de facto” taking.

Regulatory Takings

The United States Supreme Court in Lingle v. Chevron U.S.A., 544 U.S. 528 [2005], has defined four types of regulatory takings. Two categories of regulatory takings generally will be deemed per se takings for Fifth Amendment purposes. The first is where government requires an owner to suffer a permanent physical invasion of property—however minor.

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