Takings Clause Flashcards
what is the takings rule
the gov’t may only take your property for public use and provide you with just compensation when it does
source of law
5th Am takings clause (applied to states via 14th Am)
covered property
personal property, real property, certain intangibles like interest on attorney trust accounts and trade secrets
not welfare benefits
taking away of right to possess, use, or exclude
big picture takings inquiry
is there a taking or merely a regulation
a taking will be found if there is:
PHYSICAL TAKING
(1) confiscation of person’s property
OR
(2) permanent or regular physical occupation of a person’s property by the government
TEMPORARY OCCUPATION as physical taking
– case by case analysis
regulatory taking - regulation amounts to a taking
factors for determining whether a temporary occupation is a physical taking
degree of invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property
considering all these things –
exceptions to physical takings – i.e. government takes property but it is not a “takings”
(1) development exception
(2) public emergency
what is the development exception to physical takings
Municipalities often attempt to condition building or develop- ment permits on a landowner’s
(1) conveying title to part of the property to the government (for example, to be used as streets),
or
(2) granting the public an easement to access the property (such as easements for water or electricity)
These are takings UNLESS:
(1) the government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest)
and
(2) the adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.
what is the emergency exception to takings
A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, such as war.
what is a regulatory taking?
use restriction occasioned by a regulation
to what extent do regulations constitute regulatory takings?
regulations that deny all economic value of land/economically viable use of land = taking unless principles of nuisance or property law make the use prohibitable.
regulations that temporarily deny economic use = not a per se taking, depends on circumstances
regulations that decrease value of property = subject to balancing test
example of regulation that denies all economic value of land
a regulation that prohibits building on the land
this is a taking
to what extent is a regulation that temporarily denies economic use a taking
Court will carefully examine and weigh all the relevant circumstances to determine whether “fairness and justice” require just compensation
the planners’ good faith
the reasonable expectations of the owners
length of delay
delay’s actual effect on value of property
etc.
to what extent do regulations that decrease economic value constitute takings
Generally, regulations that merely decrease the value of property (for example, prohibiting the most beneficial use) do not amount to a taking if they leave an economically viable use for the property.
The Court will consider
(1) the government interests sought to
be promoted;
(2) the diminution in value to the owner; AND
(3) whether the regulation substantially interferes with distinct, invest- ment-backed expectations of the owner.
Condemnation of land to build highway - taking?
yes
