Takings Clause

Question 1

What is the takings clause of the 5th Amendment?

Answer 1

The Takings Clause (eminent domain) allows the government to take private property for public use (including transferring the property to another private party)
with just compensation.

Prohibited without just compensation

Question 2

What is a physical taking?

Answer 2

A physical taking occurs when the government either takes possession of or permanently
physically invades the property.

Question 3

What is the level of scrutiny of a taking?

Answer 3

Rational basis

Question 4

What is a regulatory taking?

Answer 4

Generally, a governmental regulation that adversely affects a persons property interest is NOT a taking.
HOWEVER
it is possible for a regulation to constitute a taking.(The Penn Central factors are considered).

Question 5

What are the Penn Central factors used to determine if a regulatory taking has taken place?

Answer 5

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.

Question 6

What is a conditional regulatory taking?

Answer 6

A conditional regulatory taking conditions a government benefit on the owner’s
surrender of property rights.

(The Supreme Court has said that these laws are takings that must be compensated unless one, there’s an essential nexus between the condition and the government’s interest in the permit, and two, the surrender of property demanded is roughly proportional to the impact of the proposed development.)