Takings Flashcards
Takings (5th Amendment)–General Rule
• Under the Takings Clause of the 5th Amendment, the government may take private property for public use if it provides just compensation. A taking is deemed for public use as long as there is a reasonable belief that it will benefit the public. Just compensation is measured by the fair market value of the property AT THE TIME OF the taking (relocation/moving costs are not included).
Takings (5th Amendment)–Types of Takings
▪ Possessory (per se) takings occur when the government physically occupies the property, even if it is just a small portion of the property.
▪ Regulatory takings occur when the property becomes economically unviable due to a regulation (i.e. zoning ordinance). Courts will determine whether a regulatory taking occurred by balancing private and community interests.
In doing so, courts will consider the three Penn Central factors: (1) the character of the regulation (i.e. whether there was a physical invasion);
(2) the economic impact on the landowner; AND
(3) the extent of interference with investment-backed expectations.
Courts are reluctant to find regulatory takings, especially when the regulation promotes the general welfare.
Zoning Ordinances–Use Regulations
States may restrict the use of land through zoning ordinances OR spot zoning.
Use regulations are zoning ordinances that separate land based on use (i.e. residential areas, commercial areas, etc.).
Use regulations MAY NOT be applied retroactively to prohibit a nonconforming use; one that was lawful before the enactment of the zoning ordinance. A nonconforming use will lose protection if it is (a) abandoned; (b) substantially changed; OR (c) destroyed. A zoning ordinance may provide for the termination of a nonconforming use through amortization provisions. Amortization provisions require the termination of a nonconforming use after a specified period of time, and are constitutional if the fixed period of time is reasonable (consider the benefits and losses to the private owner and the public).
Zoning Ordinances–Spot Zoning
Spot zoning occurs when a small area of land is zoned differently than surrounding areas of land for the benefit of the small landowner. Spot zoning will be upheld if supported by a reasonable basis. Factors to consider include:
(1) the size of the specific area of land;
(2) whether the zoning is arbitrary or compatible with an existing comprehensive zoning plan; AND
(3) the benefits and detriments to the specific landowners, surrounding landowners, and the community.
Vested Rights Doctrine
The vested rights doctrine protects landowners from subsequent changes in zoning if:
(1) substantial construction has begun; AND
(2) substantial expenditures have been made in reliance on a valid permit. Generally, if no construction has begun, landowners WILL NOT obtain a vested right to continue development (even despite substantial expenses incurred for planning services).
