Takings Clause

Question 1

What is “eminent domain”?

Answer 1

It’s the government’s ability to take private property for public purposes.

Question 2

What does the Takings Clause do ni terms of a “check on another power”?

Answer 2

A check on the power of eminent domain.

Question 3

What are the types of property and property interests that the Taking Clause covers?

Answer 3

Types of property
-> real property
-> tangible personal property
-> intangible property

Types of interests
-> fee simple
-> easement
-> leasehold
-> lien
AND
-> the rights of a property owner (e.g. the right to control access to the property)

Question 4

What are the types of takings?

Answer 4

Types
-> seizure of property
-> damage to or destruction of property by the government
-> Recharacterization of private property as public property
-> regulatory taking
-> exaction of promises from developer as a taking

Question 5

How does a seizer of property work with regards to the Takings Clause?

Answer 5

It’s the class application of the Takings Clause.

The primary challenge is whether the owner has received just compensation.

Question 6

Does the damage or destruction of property need to directly benefit the government?

Answer 6

No it does not.

Question 7

How does the Takings Clause work with regards to recharacterization of private property as public property?

Answer 7

It prohibits it.

Question 8

Is generally a regulation that adversely affects a person’s property interest a takings?

Answer 8

Generally it is not a taking, but it is possible for a regulation to rise to the level of a taking.

Question 9

What is a per se takings under a regulation?

Answer 9

A regulation that adversely affects a person’s property interest will act as a takings IF
-> there is permanent physical occupation by the government
OR
-> when the regulation results in a permanent total loss of the property’s economic value

Question 10

How does exaction as a taking work?

Answer 10

A local government may exact promises from a developer, such as setting aside a portion of the land being developed fro a park in exchange for issuing the necessary construction permits.

Question 11

When is an exaction from a developer not a violation of the Takings Clause?

Answer 11

Does not violate the Takings Clause if there is:
-> an essential nexus between legitimate state interests and the conditions imposed on the property owner
AND
-> a rough proportionality between the burden imposed on the property and the impact of the proposed development

Question 12

How is just compensation measured for the Takings Clause?

Answer 12

Fair market value at the time of the taking; measured in terms of the loss to the owner (not the benefit to the government).