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1. Traditional Tests Used to Approach the Taking Question In "Affirmative Maintenance Provision in Historic Preservation: A Taking of Property?", 34 S.C.L. Rev. pp 713-731 (1983), the author identifies five tests that courts h ^ the Past to approach the taking issue, have applied in The first is the physical invasion test. A taking only occurs when governmental action involves the physical invasion of property. Courts do not deny compensation under these circumstances. ~ The noxious use test is the second method. When a use of property is deemed noxious or offensive, a regulation limiting or preventing it is not a taking. The standards of nuisance law arise in this instance. This is the basis for upholding the South Bend Code Enforcement Department's action to abate nuisances in historic districts. The third test, the most common, involves a balancing of public benefit against private harm. If the regulation's purpose is a legitimate governmental objective and the public will gain from it then the regulation will qualify as legitimate. This test is ' criticized in that the scope of public benefit is difficult to measure. The final approach is diminution in value. In essence it states that a taking occurs if property values decrease; thus compensation to the private owner is necessary. Because of the indefinite standards it implies and the question it leaves open, this test is also criticized. For example, how much diminution in value is tolerated before a taking has occurred? The prospective viewpoint of the test, where the courts look to future uses and expectations rather than simply actual loss of value, is a further criticism of the test. The application of one of the above four tests depends on the facts and circumstances of individual cases. In the past, affirmative maintenance provisions have been upheld except in extreme cases. However, as the ensuing discussion will explain, the more recent trend in the courts is likely to hold affirmative maintenance to a higher degree of judicial scrutiny. B. Recent Trends in Case Law A recent Supreme Court case suggests an abandonment of the tests explained above and an adoption of more rigorous standards for affirmative maintenance provisions. In Nollan_v._California _Coastal _Commission, 107 S.Ct. 3141 (1987), the property owner proposed to demolish a small beach front bungalow and build a larger house in its place. Saying the house would block access to and views of the beach, the state required the Nollans to provide a public roadway through their property in order to enforce development plans for the beach area. The court found