Takings Clause

Question 1

Fifth Amendment Takings

Answer 1

1. Physical
   * Possession or permanent physical invasion of property
2. Regulatory

• Deprivation of all economically beneficial uses
• Restricts use under totality of circumstances:
  
  • character of government action
  • economic impact
  • reasonable investment-back expectations

3. Exaction
   * Condition to obtain building/development permit
4. Destruction
   * Destruction of property or property interest (eg, easements, liens)

Question 2

Physical Taking

Answer 2

“A physical taking occurs when the government, or a third party authorized by the government, permanently and physically occupies private property. Such a taking violates the Fifth Amendment takings clause unless the taking was for public use and the owner received just compensation—even though the economic impact is slight.”

The Fifth Amendment takings clause, which is applicable to the states through the Fourteenth Amendment due process clause, bars the government from taking private property unless:

(1) the taking is for a public use AND
(2) the owner receives just compensation—i.e., the property’s fair market value.

*The government need not provide just compensation when a taking is necessary to respond to an imminent public emergency

Question 3

When does a regulatory taking occur?

What must the government do when this occurs?

Answer 3

A regulatory taking occurs when the government:

1) substantially restricts the use of private property (based on the totality of the circumstances) OR
2) deprives an owner of all economically beneficial use of the property but the owner retains possession.

When this occurs, the government must justly compensate the owner for the property’s fair market value pursuant to the Fifth Amendment—as applied to state and local governments through the Fourteenth Amendment.

Question 4

Does an ordinance that constitutes a regulatory taking have to advance a legitimate government interest to be valid?

Answer 4

NO.

An ordinance does not need to advance a legitimate government interest to be valid.

Example: But even if it did, the protection of natural resources—even for aesthetic reasons—likely is a legitimate government interest.

Question 5

What are the 4 types of takings under the Fifth Amendment?

Answer 5

1. Physical
2. Regulatory
3. Exaction
4. Destruction

Question 6

Fifth Amendment Takings Clause

Destruction

Answer 6

A taking occurs when the government destroys private property or property rights—including possessory and nonpossessory interests in land (e.g., easements, liens).

And under the Fifth Amendment, a taking must be for a public use (e.g., fighting forest fires), and the government must justly compensate the owner for the property’s fair market value.

Question 7

Does the takings clause apply to leasehold interests?

Answer 7

YES.

The Takings Clause applies to various types of property interests, including a leasehold interest.

Question 8

In determining whether a regulation constitutes a taking, the court will consider:

Answer 8

(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 his 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.
* ***A court generally will not examine whether a regulation substantially advances a legitimate governmental interest.****

Question 9

A taking is almost always found in the following situations:

Answer 9

(i) When there is an actual appropriation or destruction of property, or the government permanently physically invades the property; and
(ii) when there is a permanent, total loss of economic value in the land.

Note that a decrease in economic value, a temporary denial of economic use, utility rate regulation, and zoning ordinances do not necessarily result in a taking, unless the above rules are met.

Further note that even if there is destruction or actual occupation of private property, a taking is less likely to be found in emergency situations.