Takings Clause

Question 1

Takings Clause

Answer 1

a check on the power of eminent domain (the power of the gov’t to take private property for public purposes)

Question 2

Property Interest

Answer 2

for a person to challenge a gov’t action as an unconstitutional taking, the person must have a property interest.

Question 3

Types of Property

Answer 3

includes real property, tangible personal property, and intangible property

Question 4

Types of Interest

Answer 4

includes fee simple, easement, leasehold, lien, and the rights of a property owner (e.g., the right to control access to the property)

Question 5

Types of Takings: Seizure of Property

Answer 5

primary challenge of the seizure is whether the owner has received just compensation

private prop. –> private party: rationally related to a conceivable purpose

Question 6

Types of Takings: Damage to or Destruction of Property

Answer 6

exception: gov’t destruction or private property in response to a public peril does not trigger the right to compensation

Question 7

Types of Takings: Regulatory Taking

Answer 7

Generally, a regulation that adversely affects a person’s property interest is not a taking, but it is possible for a regulation to rise to the level of a taking

Question 8

Types of Takings: Recharacterization of Property

Answer 8

The Takings Clause prevents a government from re-characterizing private property as public property.

Question 9

In determining whether a regulation creates a taking, the following factors are considered:

Answer 9

1. the economic impact of the regulation on the property owner
2. the extent to which the regulation interfere’s with the owner’s reasonable, investment-backed expectations regarding the use of 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.

Question 10

Regulatory Taking: Per Say Takings

Answer 10

1. gov’t regulation results in a permanent physical occupation of the property by the gov’t or a third party , regardless of the public interest it may serve
2. regulation results in a permanent total loss of the property’s economic value

Question 11

Types of Takings: Exaction of Promises from Developer

Answer 11

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is:

-an essential nexus between the legitimate state interests and the conditions imposed on the property owner; and

-a rough proportionality between the burden imposed on the property owner and the impact of the proposed development

Question 12

Just Compensation

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 gov’t