Limits on Government Power over Private Property

Many obesity prevention strategies involve changing the way land is used in a neighborhood to provide families with easier access to healthy food and physical activity. Most local governments have a great deal of power to regulate the use of private property. But the U.S. Constitution and some state laws place important constraints on ”takings,” the government’s acquisition of private property for public use.

ChangeLab Solutions commissioned Professors Lynn Blais and Gerald Torres of the University of Texas Law School to develop a comprehensive federal and 50-state analysis of how takings law might apply to some of the land use strategies local jurisdictions are pursuing in their efforts to prevent obesity.

Professors Blais and Torres found that by and large, state takings laws set more limits on government land use power than federal takings law. This means that it is important for advocates and government officials to be aware of the takings law in their state if they are exploring obesity prevention policies that involve (1) the forced sale of private land to the government for public use (“eminent domain”), or (2) regulations that severely limit or dictate how private property owners may use their land.

The report by Professors Blais and Torres is divided into several parts:

Takings Law: A Primer for Public Health Advocates: This fact sheet summarizes key information from the report.
 
Promoting Healthy Communities through Land Use Initiatives: Federal Limits on Regulatory Takings of Property, and Promoting Healthy Communities through Land Use Initiatives: Federal Limits on Physical Taking of Property for Public Use: These memos explain the two strands of federal takings law.
 
Land Use Initiatives to Prevent Childhood Obesity and Potential Obstacles from State Takings Laws (State Overview Memo): This memo provides basic information about state takings law and should be read before any of the individual state analyses.
 
Individual state analyses: These are state-specific analyses of how takings law affects the ability of local governments to improve land use for public health. The State Overview Memo should be read before any of the individual state analyses.
 
These memos are designed to inform lawyers and advocates who are exploring obesity prevention strategies related to land use. They are not a substitute for consultation with an in-state lawyer, and they do not reflect changes in the law that postdates their creation.