(18) Constitutional Law: Takings/Zoning Flashcards
5th Amendment Takings (Eminent Domain)
Overview + Main Rule
The government may take private property for public use if it provides just compensation.
There are 3 types of Takings: (1) Destruction of Property; (2) Regulatory Taking; and (3) Exaction as a Taking.
What types of property does the Taking Clause apply to?
Takings Clause
Applies to tangible personal property, real property and intangible property (contracts, IP rights).
Applies to easements, leaseholds, or liens.
If a person acquires property rights after the adoption of a regulation that affects their rights, may they challenge the regulation?
Takings Clause
YES, a person who acquires property rights after the adoption of a regulation that affects their rights may challenge the regulation.
Define
“Public Use”
Takings Clause
A taking is deemed for public use if the taking is rationally related to a conceivable public purpose (think rational basis standard).
If the government takes property and give it to a private party is it still for public use?
Takings Clause
YES, this may include the government taking the property and giving to a private party, the government mandating a transfer from one private party directly to another private party, etc.
Define “Just Compensation”
Takings Clause
Just compensation is measured by the fair market value of the property at the time of the taking (relocation/moving costs are not included).
What is the “Just Compensation” for property, when only a portion is taken?
Takings Clause
When only a portion of the property is taken the owner may receive a diminution in value of the remaining portion.
What is the “Just Compensation” for property when the government only takes the property for a period of time (and returns it)?
Takings Clause
If the government returns the property they must pay for the time period they possessed the property.
What is the “Just Compensation” for property when the government takes it because it has value to it, but it has no value to the owner?
Takings Clause
Property that is worthless to the owner but has value to the government may be taken without payment.
Types of Takings
Takings Clause
- Destruction of Property
- Regulatory Taking
- Exaction as a Taking
Destruction of Property
Takings Clause
Destruction of property or property rights by the federal, state, or local government can result in a taking. The destruction need not directly benefit the government.
Ex. Preventing a transfer of interest and there is no ability to be justly compensated.
Public Peril Exception
Takings Clause / Destruction of Property
The government destruction of private property in response to a public peril does not trigger the right to compensation.
Ex. Owners of infected trees were not compensated for the destruction since they were destroyed to prevent the spread of the infection to the orchards.
Destruction of Property Example:
Is a statute that requires an owner to take action or lose its unused rights a taking?
Takings Clause
NO, a statute that requires an owner to take action to preserve the unused rights does not result in a taking if the owner fails to act.
Destruction of Property Example:
Can the government re-characterize private property as public property?
Takings Clause
NO, the government cannot re-characterize private property as public property.
Regulatory Taking
Takings Clause
A government regulation that adversely affects a person’s property interest is generally not a taking, however there are 3 types of Regulatory takings: (1) Taking Per Se; (2) 2 Factor Test; (3) Character of the Governments actions.
