Class 5: The Takings Clause - Jan. 24

Question 1

Can a government taking of private property only result from physical possession of the property? (Q)

Answer 1

No. The government may take private property by (1) physically seizing or occupying the property or (2) depriving all economically viable use of the property through (typically land-use) regulation.

However, regulation does not constitute a taking if it substantially advances and has a close nexus to a legitimate government interest. Generally, courts are less likely to find a taking if the interference with property is economic rather than physical.

Question 2

If a land-use regulation does not destroy all economically viable use of a property, what legal standard determines whether the regulation is a taking? (Q)

Answer 2

A land-use regulation that does not destroy all economically viable use of a property does not constitute a taking if it substantially advances and has a close nexus to a legitimate government interest. Generally, courts are less likely to find a taking if the interference with property is economic rather than physical.

Question 3

Can a government taking of private property be solely for a private purpose? (Q)

Answer 3

No. The government may take private property only for a public purpose or benefit. However, the U.S. Supreme Court has held that a local government may take property for a public purpose or benefit, even when that property will immediately be sold to private developers for private use. The Court reasoned that the economic development of the local area by private developers was a public use, because such development provided numerous benefits to the public.

Question 4

If a governmental regulation eliminates some economically beneficial uses for a property interest, can it sometimes be a taking that requires the payment of just compensation under the Takings Clause of the Fifth Amendment? (Q)

Answer 4

Yes. If a government regulation eliminates some economically beneficial uses, it can be a taking that requires just compensation under the Takings Clause of the Fifth Amendment. To determine whether a regulatory taking has occurred, the courts will consider factors such as:

the regulation’s economic effect on the property interest;

the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations; and

the character of the government action.

The Takings Clause prohibits the government from imposing burdens on a small number of people if the ideas of fairness and justice require imposing those burdens on the public as a whole.

Question 5

What is just compensation for private property that the government takes for a public purpose? (Q)

Answer 5

Just compensation is the fair market value of the private property at the time the government takes it for public use. When a government takes private property for a public purpose, the Fifth Amendment’s Takings Clause requires the government to provide just compensation to the owner of the private property.

Question 6

What is the measure of just compensation under the Takings Clause of the Fifth Amendment to the U.S. Constitution? (Q)

Answer 6

Under the Takings Clause, just compensation is the fair-market value of the property. When calculating just compensation, the fair-market value is measured:

at the time the government exercises its power of eminent domain to take ownership of the property interest and by looking at what the equivalent selling price would have been if a voluntary sale had taken place in an arm’s length, market-based transaction (as best as that amount can be determined).

Question 7

What does the Takings Clause of the Fifth Amendment prohibit? (Q)

Answer 7

The Takings Clause prohibits the government from:

taking private property,

for public use,

without just compensation.

The government’s power to take private property for public use is called eminent domain.