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"Property" is more than just the physical thing—the land, the bricks, the mortar—it is also the sum of all the rights and powers incident to ownership of the physical thing. It is the tangible and the intangible. Property is composed of constituent elements and of these elements the right to use the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value.' "
-- Dickman v. Commissioner, 465 U.S. 330, 336 (1984).
Property rights are the cornerstone of the real estate industry. The Fifth Amendment to the United States Constitution (and in Wisconsin, Article I, Section 13 of the Wisconsin Constitution) protects basic property rights, stating that “private property shall not be taken for public use without just compensation.” This section clearly prohibits the government from physically taking private property for public purposes without the payment of just compensation.
Over the years, courts have recognized three types of regulatory actions that constitute a “taking.” The first category is a “physical taking,” involving “regulatory actions that bring about some form of physical ‘invasion’ of private property.” See R.W. Docks & Slips v. State, 244 Wis. 2d 497, 507, 628 N.W.2d 781 (2001) (citing Lucas v. South Carolina Coastal Comm’n, 505 U.S. 1003, 1015 (1992); see also Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (declaring a state-imposed easement across private property to be a ‘permanent physical occupation’ requiring compensation). The second category is a “regulatory taking” which “includes regulatory actions that deny ‘all economically beneficial or productive use of land.” Id. A third category of “taking” also exists, but is related to those government actions that do not constitute a physical invasion of property and which “fall short of eliminating all economically beneficial use.” Palazollo v. Rhode Island, 533 U.S. 606, 617 (2001) (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). This type of takings analysis requires a careful consideration of “a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.” Id.
-- Lynch v. Household Fin. Corp., 405 US 538, 552 (1972)
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