Takings Clause Flashcards
What is the takings clause in general?
The power of the government to take private property for public purposes is known as “eminent domain”. The Takings Clause of the 5th acts as a check on this power. It provides that private property may not be taken for public use without just compensation. The 14th DP clause makes the takings clause applicable to the states.
When does a person have a valid property interest in order to invoke the takings clause?
You must have a valid property interest, so when an HOA tried to object to development that affected their land, including the right to receive acccretions and control access to the shore, but the new land was owned by the state, so the HOA did not have a takings clause claim
What types of property are subject to the takings clause?
Property that may be subject to the protection of the takings clause includes not only land and other real property, but also tangible personal property as well as intangible property such as contract and patent rights and trade secrets.
What kinds of interests in land count as a taking?
In addition to the transfer of a fee simple interest in property, a taking may involve an easement, leasehold interest, or a lien. A taking may also involve the rights of a property owner, such as the right to control access to the property. (So the federal gov’ts imposition of public access servitude on a waterway created our private property constituted a taking.
What are the different ways in which a property can be ‘taken’?
- Seizure
- damage or destruction
- Characterization of property
- Regulatory taking
- Exaction as taking
When is a property seized for purposes of the takings clause?
The classic application of the takings clause is the seizure of private property for governmental use, such as acquiring privately held land in order to construct a courthouse or other gov’t building. In such a case, the property owner’s primary challenge to the seizure is whether he has received just compensation.
Does property seized under the takings clause always need to be for direct gov’t use?
No, the gov’t may also transfer the property to another private party. Although such a seizure is subject to challenge as not being made for the public use, the taking need merely be ‘rationally related to a conceivable public purpose.’
This is a highly deferential standard; it is up to the person challenging the taking to prove a lack of legitimate interest or rational basis. In addition to traditional health, safety and welfare justifications, economic redevelopment goals also suffice. Moreover, a gov’t-mandated transfer of property from one private party to another may nevertheless be for a public use.
When is a property damaged or destroyed to the extent that the takings clause could apply?
A destruction of property or property rights by the federal, state or local gov’t can also result in a taking. The destruction need not directly benefit the government.
EX: A fed statute that prevented the transfer by devise or descent of fractional shares of an interest in tribal land upon death of the owner and instead provided for such interest to escheat to the tribe constituted an unconstitutional taking when there was no provision for compensation.
Damage to property or interference with a property owner’s rights or governmental action can also result in a taking.
EX: County ownership of an airport that resulted in an invasion of the airspace of nearby property owners by planes taking off and landing at the airport constituted a taking. BUT, a statute that requires an owner of property rights to take action in order to preserve an unused right does not result in a taking if the own fails to take such action.
What is the public peril exception to the takings clause?
The governmental destruction of private property in response to a public peril does not trigger the right to compensation.
EX: The owners of infected cedar trees located near apple orchards wee not entitled to compensation when the cedar trees were destroyed pursuant to state statutes in order to prevent the spread of the infection to the orchard.
When is characterization of a property a taking?
The Takings Clause prevents a gov’t from recharacterizing private property as public property.
EX: Interest on the purchase price of an insolvent corporation placed by the buyer in an account with the court as pat of an inter pleaser action involving the corporation’s creditors was private property. A state courts interpretation of a statutory provision that the interest was public money constituted a taking.
What is a regulatory taking?
Generally, a governmental regulation that adversely affect’s a person’s property interest is not a taking; but it is possible for a regulation to rise to the level of a taking. The following factors are considered:
- The economic impact of the regulation on the property owners
- The extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding the use of the property; and
- The character of the regulation including the degree to which it will benefit society, how the regulation distributes burdens and benefits among the property owners, and whether the regulations violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.
What is the public use challenge to a regulatory taking?
In the context of a regulation, a state or local gov’t can act under its policy power for the purposes of health, safety and welfare. In addition, a public purpose can encompass aesthetic and environmental concerns. Moreover, it is generally inappropriate for a court to examine whether a regulation substantially advances a legitimate government interest. (Note, however, that an arbitrary or irrational regulation may constitute a due-process violation).
what are per se regulatory takings?
There are two instances when a regulation clearly results in a taking:
- Physical Occupation; and
- No economic viable use
When is a property interest so physically occupied by a regulation that it results in a per se taking?
A taking has occurred when the governmental regulation results in a permanent physical occupation of the property.
EX: a law requiring a landlord to permit a cable company to install equipment on the landlord’s property that would remain indefinitely constituted a taking, even though the installation had only a minimal economic impact on the landlord.
When is there no economically viable use because of a regulation such that it results in a per se taking?
When a regulation results in a ‘permanent total loss of the property’s economic value’, a taking has occurred.
EX: a zoning ordinance precluding owner of coastal property from erecting any permanent structure on the land was a taking, though a 32-month building moratorium was not.
If the effect of the regulation is just a dramatic decline (adverse economic impact) in the value of the regulated property, that is not necessarily a taking.
