Takings

Question 1

Public use and just compensation

Answer 1

Private property shall not be taken for public use without just compensation:

(1) Public use:

It encompasses more or less anything the government wants to do with the property, as it need only be rationally related to a conceivable public purpose.

Public use can even include taking private property to resell to another private owner for economic development purposes.

(2) Just compensation:

It amounts to fair market value at the time of the taking.

Question 2

Regulatory taking: per se taking

Answer 2

Mere regulation generally does not rise to the level of a taking, even if it dramatically reduces the value of the property.

In rare circumstances, a zoning regulation can be a taking if it:

(a) leaves no economically viable use for a property; or
(b) results in a permanent physical occupation of the property by the government or a third party.

It is not a permanent occupation if the regulation requires a property owner to install fixtures—e.g., surveillance cameras.

Question 3

Zoning

Answer 3

Zoning is not a taking, and no compensation is required, so long as it advances legitimate interests and does not extinguish a fundamental attribute of ownership.

Question 4

Physical occupation

Answer 4

Even a small physical occupation is a taking, whereas no physical occupation generally means that no taking has occurred.

A taking can occur without physical occupation—e.g., by way of a regulation that eliminates a property’s economic value.

Question 5

Exaction as a taking

Answer 5

Development is often conditioned on “concessions” by the developer, such as building an access road or donating land to a park.

Such exactions do not violate the Takings Clause if:

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

In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.

Question 6

Liens

Answer 6

There is a taking if a party’s lien on a property becomes worthless because it is unenforceable due to sovereign immunity.

Question 7

Public peril

Answer 7

A government may destroy property in response to a public peril without the payment of compensation.

Question 8

Property: lost profits

Answer 8

Lost profits do not constitute a property interest subject to the Takings Clause.

Question 9

Takings

Answer 9

A taking is almost always found in the following situations:

(i) When there is either:
(a) an actual appropriation or destruction of property; or
(b) permanently physical invasion of the property by the government; and
(ii) When there is a permanent, total loss of economic value in the land.

Question 10

Takings: scope of the doctrine

Answer 10

Unless they otherwise meet the requirements of a taking, the following do not constitute takings triggering a right to compensation:

(1) A decrease in economic value;
(2) A temporary denial of economic use;
(3) Utility rate regulation; and
(4) Zoning ordinances.

Question 11

Regulatory taking: standard

Answer 11

Regulations alleged to be a regulatory taking are evaluated under a three-part balancing test, taking into consideration:

(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 use of the property, and
(3) the character of the regulation, including:

• the degree to which it will benefit society,
• how the regulation distributes the burdens and benefits among property owners, and
• whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.