Texans for Responsible and Accountable Energy Development's lawyer debunking industry's scare tactics

Denton Record Chronicle:

However, an attorney representing residents’ interests dismissed one
perceived threat — denying a mineral owner access to property by rule-
making — out of hand.


“You are so far away from a regulatory taking, I don’t know why it
even comes up,” said Sara Bagheri, of Texans for Responsible and
Accountable Energy Development.


REGULATORY TAKING


effects of government regulation deemed so severe as to destroy most
of the value of a property. In effect, the government has "taken" the
property without just compensation.


Example: Any town, USA, zoned a downtown property for single-family
residential use and required that all homes in that area have at least
3,000 square feet and be built with granite floors and genuine marble
bathroom fixtures. These restrictions rendered the downtown property
unusable, so they were considered a regulatory taking


REGULATORY TAKING


A legal theory that a particular government regulation has so
adversely affected the value of real property as to amount to a
condemnation of the property,for which the owner is entitled to
compensation.There are two varieties: categorical and noncategorical
takings. In order to establish a case of categorical taking, the
Supreme Court has held that the property owner must show (1) that the
land-use regulation does not substantially advance legitimate state
interests, and (2) that it denies an owner all economically viable
uses of his or her land. These are both heavy burdens to overcome. A
noncategorical taking does not require elimination of all economically
viable uses of property, but does require a case-by-case analysis of
the regulation regarding its character and nature, the severity of its
economic impact, and the degree of interference with the property
owner's reasonable investment-backed expectations.


REGULATORY TAKING
(n)


:an appropriation or diminution of private property rights by a
governmental regulation which exceeds the government's legitimate
police power (as the power to enact safety regulations) and for which
the owner may seek a writ of mandamus, declaratory relief, or just
compensation (as by inverse condemnation)


compare physical taking zoning


In order to determine whether a regulatory taking is effected by a
regulation, a court will consider the government's interest that is
being furthered by the regulation, the breadth or specificity of the
regulation, and the extent of the regulation's impact on the owner's
property rights and expectations. The U.S. Supreme Court has held that
an owner can bring an action for compensation when the taking has
deprived the owner of all use of the property even temporarily.
Otherwise, the owner may be entitled only to declaratory relief.