Taking Clause and Retroactive Legislation Flashcards
Fifth Amendment taking clause generally
The Fifth Amendment provides that private property may only be taken
- for public use, and
- the government must pay just compensation
Not a source of power for taking, but a limitation
Definition of a taking
Whether governmental action is a taking that requires payment or merely a regulation that does not require compensation
A taking will be found if there is
- a confiscation of a person’s property, or
- a permanent or regular physical occupation of a person’s property by the government
Temporary occupations
Temporary occupations by the government may also be a taking depending on factors, like
- degree of invasion
- the duration
- the government’s intention
- the foreseeability of the result
- the character of the property
- the interference with the use of the property
Exceptions
- development
- emergency
Development exception
Municipalities often attempt to condition building or development permits on a landowner’s
- conveying title to part of the property to the government, or
- granting the public an easement to access the property
These are a taking unless
- the government can show there is an essential nexus between the condition and the proposed development (condition relates to a legitimate government interest), and
- the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer
Emergency exception
A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, like a war
Denial of all economic value in the land
If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable
Temporary denials of all economic use
Temporarily denying an owner of all economic use of property does not constitute a per se taking
The court will carefully examine and weigh all the relevant circumstances to determine whether fairness and justice requires just compensation
- planners’ good faith
- the reasonable expectations of the owners
- the length of the delay
- the delay’s actually effect on the value of the property
Decreasing economic value
Generally, regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the property
Balance test - court will consider
- the government interests sought to be promoted
- the diminution in value to the owner, and
- whether the regulation substantially interferes with distinct, investment-backed expectations of the owner
Public use limitation
If the government’s action is rationally related to a legitimate public purpose, the public use requirement is satisfied
Authorized takings by private enterprises are included if they work to the public advantage
Measuring just compensation
Measured by the fair market value of the property taken at the time of the taking and it’s based on the loss to the owner
Increases in value to the owner’s remaining property as a result of the taking are not considered
Inverse condemnation
When the gov acts under power of eminent domain to take property for public use, condemn the property and pay
When taken without condemnation proceedings, landowner can bring an action for inverse condemnation
If determines that the action amounted to a taking, gov will be required to either
- pay property owner just compensation, or
- terminate the regulation and pay damages that occurred while the regulation was in effect
Contract clause generally - retroactive legislation
The contract clause limits the ability of state and local governments to enact laws that retroactively impair contract rights
Does not affect contracts not yet made
Not applicable to federal government but flagrant contract impairment would violate the fifth amendment due process
Private contracts
Legislation that substantially impairs an existing private contract is invalid unless the legislation
- serves an important and legitimate public interest, and
- is a reasonable and narrowly tailored means of promoting that interest
Public contracts
Heightened scrutiny because of potential self dealing
Legislation that impairs a contract to which the state is a party is tested by the same basic test as private contracts, but the legislation will receive heightened scrutiny
- especially if the legislation reduces the contractual burden on the state
Ex post facto law generally
Neither state nor federal government can pass this - law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purposes of punishing a person for some past activity
Similarly prohibits courts from retroactively interpreting criminal laws in an unexpected and indefensible way
Applies only to criminal cases
