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1 <br /> <br />MEMORANDUM <br /> <br />DATE: January 28, 2021 <br />TO: Little Canada <br />ATT: Heidi Heller (Heidi.heller@littlecanadamn.org) <br />FROM: Patrick Kelly <br />RE: Regulatory Taking <br /> <br />ISSUE: Does a tobacco license not including in use hookahs constitute a regulatory taking? <br /> <br />ANSWER: No, a tobacco license not including in use hookahs does not constitute a regulatory <br />taking. <br /> <br />ANALYSIS: <br /> <br />Under the Minnesota Constitution, article 1, section 13, private property must not be taken, <br />destroyed, or damaged for public use without payment of just compensation. <br /> <br />Definition of Taking <br /> <br />The classic taking is a direct appropriation or physical invasion of private property. Since <br />1992, however, the courts have recognized that a state statute or local ordinance may impose <br />restrictions or demands on the use of private property that are so onerous that it amounts to a <br />taking and the government must compensate the owner. Lingle v. Chevron, U.S.A., Inc., 125 S. <br />Ct. 2074, 2081 (2005) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)). In these <br />instances, called regulatory takings, the property owner brings an inverse condemnation action to <br />compel the government to begin eminent domain proceedings and compensate the owner. A <br />compensable regulatory taking may be temporary or permanent. First English Evangelical <br />Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987). <br /> <br />Categorical or per se regulatory takings <br /> <br />There are two situations in which a court could find that a regulation is clearly a taking; a <br />categorial or “pre se” taking. First, if the regulation requires an owner to allow a physical <br />invasion of the property, however minor, the owner must be compensated. Lingle, 125 S. Ct. at <br />2081 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). <br /> <br />The second situation is when the regulation denies the owner of all economically viable <br />use of the property and the regulation is not merely an explicit statement of common law <br />limitations already present in the title. Lingle, 125 S. Ct. at 2081 (citing Lucas v. South Carolina <br />Coastal Council, 505 U.S. 1003 (1992)). <br /> <br />Penn Central Test <br /> <br /> Three part test to determine regulatory taking. <br />