Eminent Domain I Flashcards
What is eminent domain
a government’s inherent power, confirmed by the Fifth Amendment’s Takings Clause, to take private property for public use in exchange for just compensation.
What are two types of takings?
Physical Takings: Actual seizure of property
Implicit or Regulatory Takings: The government restricts a person’s use of their property to the point of constituting a taking
What is the procedure for physical takings? In other words, describe what happens before and after a condemnation action to take title to private property.
The government is usually required to begin by attempting negotiated purchases.
Failing acquisition by that means, the government will file a petition in court (i.e., a condemnation action), followed by notice to all persons with interests in the property in question.
If, after notice and opportunity to be heard, the taking is deemed constitutionally permissible, the government must pay the land owner just compensation for the taking
-Just compensation is measured by fair market value at the time of the taking.
What are two possible readings of “public use?”
– Narrow reading: The government owns or the public must have the right to use the condemned property.
– Broad reading: The condemnation must be for some public purpose
What is the test for “public use” in Midkiff v. Hawaii Housing Authority
rationally related to a conceivable public purpose
-the [constitutional requirement] is satisfied if … the … [state] Legislature rationally could have believed that the [Act] would promote its objective.
What is an implicit or regulatory taking?
the government restricts a person’s use of their property to the point of constituting a taking
