Takings Clause

Question 1

What is the source of the “takings clause”?

Answer 1

5th amendment, and incorporated by the 14th against the states

Question 2

What does the “takings clause” provide?

Answer 2

The gov cannot take private property for public use without JUST COMPENSATION

Question 3

What is considered valid “public use”?

Answer 3

• if gov’s action is RATIONALLY RELATED to a LEGITIMATE public interest, the public use requirement is satisfied

NOTE: Authorized takings by private enterprises OK if they redound to the pub;ic advantage (Example –> railroad, public utility)

Question 4

What constitutes a “taking” (which requires compensation) as opposed to a “regulation” (which doesn’t require compensation)?

Answer 4

• There is no clear-cut formula, but the following guidelines apply:
  1. Actual Appropriation or Physical Invasion –> almost always a taking (unless it’s an emergency), even if temporary
  2. Use Restrictions that deny ALL economic use —> taking
  3. Use restrictions that deny ALL economic use temporarily –> Not automatically a taking. Court will determine whether “fairness and justice” require just compensation
  4. Decreasing economic value –> generally, regs that decrease the value (prohibit the most beneficial use) are NOT a taking if they leave an economically viable use for the land (balancing test)

Question 5

What is an “exaction”?

Answer 5

“exaction” - when municipalities condition building or development permits on:

1. a landowner’s conveyance of title to all or party of the property to gov;
2. public easement in the property

Question 6

What is the rule regarding “takings” and “exactions”?

Answer 6

Exactions constitute a taking UNLESS:

1. the gov can show there is an ESSENTIAL NEXUS btwn the condition and proposed development;
2. adverse impact of proposed development is ROUGHLY PROPORTIONAL to the loss caused to the property owner from the forced transfer

Question 7

What is “inverse condemnation”?

Answer 7

When a property is taken by regulation or occupation without condemnation proceedings, the landowner can bring an action for inverse condemnation.

Question 8

What is the outcome of “inverse condemnation”?

Answer 8

If court finds that the gov action amounted to a taking, the gov will be required to EITHER:

1. PAY to the property owner just compensation for the property; OR
2. Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect

Question 9

What constitutes “just compensation”?

Answer 9

FMV of the property at the time of the taking.

• measure is based on loss to owner
• increases in value to owner’s remaining property as a result of the taking are not considered

Question 10

What constitutes “just compensation” if property was worthless to owner?

Answer 10

• just compensation is measured by LOSS TO OWNER, not gain to taker
• THUS, if property was worthless to owner, it can be taken without compensation