Taking Clause

Question 1

When is there a taking?

Answer 1

Confiscation of property; or permanent occupation of property by the government
Temporary occupation may be a taking depending on factors such as duration, degree, and interference

Question 2

What is required if a taking is found?

Answer 2

Just compensation

Question 3

What is just compensation?

Answer 3

Fair market value of the property at the time the taking occurred

Question 4

What is the development exception

Answer 4

Conditioning developing permit on giving government title to a portion of property for public use; or creating a public easement is a taking UNLESS government can show the condition is essential to a legitimate government interest and the adverse impact is proportional to the loss caused to the property owner from the forced transfer

Question 5

What is the emergency exception?

Answer 5

Taking is less likely to be found where it’s a result of public emergency such as war

Question 6

What is a public use?

Answer 6

Rationally related to legit public purpose (I.e health reasons; welfare; safety reasons)

Question 7

When is use restriction a taking?

Answer 7

Government regulation denies the property owner of ALL economic viable uses of the land UNLESS tort or property law make the use prohibitable

Question 8

What is the balancing test to determine whether decrease in economic value is a taking?

Answer 8

Applies when regulation leaves some viable economic uses for the land; court considers (1) government interest; (2) diminution of value to owner; and (3) if regulation substantially interferes with investment back expectations of the owner

Question 9

What is inverse condemnation

Answer 9

Property owner can bring inverse condemnation action where government takes private property without condemnation proceedings. If the government act was a taking government will have to pay just compensation or terminate the regulation and pay damages