Eminent Domain

Question 1

Defin of Eminent Domain

Answer 1

Defin = Govts inherent power, confirmed by the 5th amendment takings clause, to take private property for public use in exchange for just compensation

Question 2

Two Types of Taking

Answer 2

1) Physical
2) Implicit or Regulatory

Question 3

Three categorical rules for regulatory takings -

Answer 3

i) A permanent physical occupation or invasion by the govt is a taking
- Taking also occurs when the govt allows a third party to permanently invade an individuals property (Loretto)
- No balancing test req

ii) Regulation that completely deprives property of all economically beneficial uses

iii) Under the police power states can regulate common law nuisances without paying just compensation to the landowner

Question 4

Regulatory Takings Balancing Test

Answer 4

• If govt regulation of a use that is not a common law nuisance imposes too great a burden on a property owners reasonable investment backed expectations, the govt must provide just compensation
• Scenarios ruled on already
  1) Diminution in value case - A very large reduction in the value of regulated land may be a taking
  2) Reasonable return on investment case

Question 5

Remedies for Regulatory Taking

Answer 5

1) Compensate the owner while continuing the regulation or
2) Terminate the regulation and pay owner for damages that occurred while the regulation was in effect

Question 6

Physical Takings & Procedure Rules

Answer 6

1) Actual seizure of property

Procedure - also called condemnation action to take title to private property
a. First, begin by attempting negotiated purchases
b. Failing acquisition by that means the govt will file a petition in court (condemnation action) followed by notice to all persons with interests in the property in question
c. If, after notice and oppt to be heard the taking is deemed constitutionally permissible the govt must pay the land owner just compensation for the taking
Just comp = measured by fair market value at the time of the taking

Question 7

Two interp of public use

Answer 7

1) Narrow reading - the govt owns or the public must have the right to use the condemned property
2) Broad reading - the condemnation must be for some public purpose