19. Taking Clause (5A/14A)

Question 1

What type of property is covered by the Taking Clause?

Answer 1

Real property

Personal property

Question 2

What is required for public use?

Answer 2

Rationally related to legitimate government purpose
- Health/Welfare/Safety/Economic/Aesthetic

Private company’s taking for public advantage
- Railroads, public utilities

Question 3

What type of appropriation is considered a taking?

Answer 3

Actual/Physical

Temporary

NOT emergency

Question 4

What type of use restrictions is considered a taking?

Answer 4

Denial of economic value of land

• ALL value (UNLESS property/tort law denies restriction)
• NOT temporary value (depends on whether just compensation is required in ‘fairness and justice’ based on planners’ good faith/owner’s expectations/length of denial/denial’s effect on value)

Decrease economic value of land (Generally NOT taking)

• Deny most beneficial use (NOT economically viable)
• Court will consider social goals, loss of value to Owner, Owner’s expectations

Question 5

What type of exactions is considered a taking?

Answer 5

Government conditioned building development/permit

• Conveyance of title
• Creation of public easement

UNLESS

1) Legitimate government purpose
2) Owner’s loss roughly proportional to adverse impact of development

Question 6

What remedies are available for taking/regulation?

Answer 6

Continue taking => Pay just compensation

• Fair market value (at time of taking)
• Loss to Owner (NOT gain to Taker)

Stop taking => Pay damages during taking

Regulation/Occupation => Owner sues for inverse condemnation
- NO just compensation

Question 7

What are examples of takings?

Answer 7

Condemnation to build highways

Create public easements to enter private property

Remove inheritance rights

Question 8

What are examples of regulations?

Answer 8

Zoning ordinances

Destroy diseased trees