Takings clause Flashcards
Under the __ and __ Amendment, private property may be only taken:
5th A for fed govt and 14th A for state govt
- public use
- govt must pay just compensation
Note: takings clause is a limitation not a power
list (2)
Is there a taking?
- Confiscation of a person’s property OR
- A permanent or regular physical occupation of a person’s property by the govt
Can temporary occupation be a taking
case-by-case basis
list (2)
What are NOT takings:
- Development exception - need
- essential nexus btwn condition and proposed development
- adverse impact of proposed development is approx. proportional to loss caused to property owner
- Emergency exception
there is a taking when the gov’t denies a landowner of
all economically viable use of their land
there is a taking when the gov’t denies a landowner of all economically viable use of their land
UNLESS
nuisance or other property laws make use of the land prohibited
list (3)
What type of test is used to determine whether a regulation decreases economic value of the property and what are its elements
Balancing Test
- gov’t interest seeking to be promoted
- decrease in value of property to the owner
- whether regulation substantially interferes with distinct, investment backed expectations of the owners
Public Use
if a gov’t action is rationally related to a legitimate public purpose, then it is an authorized taking and just compensation given
Just compensation is measured by
fair market value of the property at the time of the taking
Just compensation relates to what types of takings
public use takings
inverse condemnation
when property is taken by occupation or regulation without condemnation proceedings
as it relates to inverse condemnation, if the courts decide the gov’t action amounted to a taking, the gov’t is required to
- Pay just compensation to property owner -OR-
- Terminate regulation and pay owner for damages that occurred while regulation was in effect
