Taking Clause Flashcards
1
Q
IN GENERAL
A
- 5th Amend prohibits governmental taking of private property “for public use w/o just compensation.”
- The prohibition is applicable to the states through 14th Amend, & taking questions often arise in connection w/ states’ exercise of their police power (power to legislate for health, welfare, safety, etc., of people).
2
Q
Not a Grant of Power
A
- 5th Amend is not a grant of power, but a limit on power (taking must be for a public purpose & compensation must be paid).
- The power for a taking must arise out of some other source (ex. police power).
3
Q
Scope of Taking
A
- Taking includes physical takings of property & some governmental action that significantly damages property/impairs its use (ex. frequent flyovers by airplanes near airport)
- Moreover, even personal property & intangibles may be subject of a taking.
- Ex. raisin growers must be paid just compensation for being required to set aside a portion of their crops for gov pursuant to fed regulations, even if growers retain a contingent interest in the reserved portion
- Ex. gov requirement that trade secret be disclosed may be a taking where gov takes & discloses secret in a way that it diminishes secret’s economic value & interferes w/ reasonable, investment-backed expectations of its holders
4
Q
“PUBLIC USE” LIMITATION LIBERALLY CONSTRUED
A
- Ct will not review underlying policy decisions like general desirability for a particular public use/ extent to which property must be taken therefor.
- A use will be held to be “public” if it is rationally related to a legit public purpose, (ex. health, welfare, safety, moral, social, economic, political, or aesthetic ends).
- Gov may even authorize a taking by private enterprise, if taking will contribute to the public advantage (ex. railroads & public utilities)
5
Q
“TAKING” VS. “REGULATION”
A
- While gov must fairly compensate owner when her property is taken for public use, it need not pay compensation for mere regulation of property.
- Thus, whether gov action amounts to a taking/ regulation is a crucial issue.
- The question is one of degree; there is no clear cut formula for determining whether there has been a taking.
- The following guidelines have emerged.
6
Q
Actual Appropriation or Physical Invasion
A
- Taking: an actual taking/destruction of a person’s property/a permanent/regular physical invasion by gov/by authorization of law.
7
Q
Exception—Emergencies
.
A
- Taking is less likely in emergency situations, even where there is destruction/actual occupation of private property
8
Q
Damage from Temporary Interference with Use
.
A
- Gov action that is a temporary physical invasion of property may be a taking.
- Ct will look at factors like degree of invasion, duration, gov’s intention, foreseeability of result, character of property, & severity of interference w/ its use.
- Ex. temporary flooding caused by gov release of dammed up waters can amount to a taking
9
Q
Use Restrictions: Denial of All Economic Value of Land—Taking
A
- If gov regulation denies landowner of all economic use of his land, regulation is equivalent to physical taking unless principles of nuisance/property law that existed when owner acquired the land make use prohibitable.
- Ex. state’s zoning ordinance, adopted after owner purchased lots, amounted to a taking b/c ordinance prohibited owner from erecting any permanent structures on his lots
10
Q
Temporary Denials of All Economic Use
A
- Temporarily denying owner of all economic use of property does not constitute a per se taking.
- Instead, Ct will carefully examine & weigh all relevant circumstances
- planners’ good faith, reasonable expectations of owners, length of delay, delay’s actual effect on value of property, etc in order to determine whether “fairness & justice” require just compensation.
- Ex. no taking where there was a 32-month moratorium on land development in the Lake Tahoe Basin while a comprehensive land-use plan was being developed for the area
11
Q
Decreasing Economic Value
A
- Generally, regulations that merely decrease value of property (ex. prohibit its most beneficial use) do not necessarily result in a taking, if they leave an economically viable use for property.
- Ct considers
(1) social goals sought to be promoted;
(2) reduction in value to owner; and
(3) whether regulation substantially interferes w/ distinct, investment-backed expectations of owner.
12
Q
Building/Development Permits—Exaction of Occupation Rights
A
- Municipalities often attempt to condition building/ development permits on landowner’s
(1) conveying title to part, or all, of property to gov or
(2) granting the public access to property (ex. easement across property). - Such exactions constitute an uncompensated taking unless
(1) gov can show condition relates to a legit gov interest (nexus) and
(2) adverse impact of proposed building/ development on the area is roughly proportional to loss caused to property owner from forced transfer of occupation rights (proportionality)
13
Q
Permit Denials
A
- Gov’s demand for property w/ respect to a land-use permit application must satisfy the Nollan/Dolan requirements, above, even when gov denies a permit
- A refusal to issue a permit based on refusal to dedicate land under terms that do not satisfy the nexus and/or proportionality requirements of Nollan & Dolan constitutes a taking.
14
Q
Utility Rate Regulation
A
- No taking where gov sets rates that utility companies can charge, if rates are not set so low that they are unjust & confiscatory.
15
Q
Zoning Ordinances
A
- Govs may adopt zoning ordinances that regulate the way real property may be used, pursuant to police power (ex. limiting development in a particular area to single-family homes, restricting buildings to a particular height, etc.)
- Such regulations generally are not a taking—even if they deny an owner the highest & best use of her property—unless they:
(1) amount to a physical taking,
(2) deny an owner of all economic use, or
(3) unreasonably interfere w/ distinct, investment-backed expectations
