Takings

Question 1

Takings Clause

Answer 1

The power of the government to take private property for public purposes is known as “eminent domain.” The Takings Clause of the 5th Amendment acts as a check on this power. It provides that:

1) Private property may be taken
2) for public use –> the government may take private property not only for its direct use, but also to transfer the property to another private property. To challenge this taking as not being made for public use, the challenger must prove that the transfer of property is not rationally related to any conceivable public purpose.
3) with just compensation –> just compensation requires the payment of fair market value. The value is measured in terms of loss to the owner, not the benefit of the government.

Question 2

Seizure of Property

Answer 2

The classic application of the Takings clause is private property for governmental use. Here, the property owner’s main challenge is whether he received just compensation.

Question 3

Regulatory Taking

Answer 3

Generally, a governmental regulation that adversely affects a person’s property interest is NOT a taking (does not require just compensation); however, it is possible for a regulation to rise to the level of a taking. In determining whether a regulation is considered a taking, Penn central factors are considered:

1) the economic impact of the regulation on the property owner
2) the extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; and
3) the character of the regulation.

Question 4

Exaction as a Taking

Answer 4

A local government may exact promises from a developer without violating the Takings Clause if there is:

1) an essential nexus between legitimate state interests and the conditions imposed on the property owner; and
2) a rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development