Takings Clause & Eminent Domain

Question 1

takings clause & eminent domain

Answer 1

5A prohibits govt from taking private property w/out providing just compensation to owner and/or occupant
- applies to govt action that signficantly damages property or its use

NOTE: govt may take private property for “public use”; taking can be possessory (ie, physical) or regulatory

Question 2

takings clause & eminent domain analysis

Answer 2

3-part analysis: to determine if a taking is constitutional, ask:
1. has there been a taking?
2. is the taking for public use?
3. is just compensation paid?

Question 3

has there been a taking?

Answer 3

two types of takings:
1. possessory taking
2. regulatory taking

Question 4

possessory taking

Answer 4

govt takes or occupies physical proeprty
NOTE: govt may take private property for private development

Question 5

regulatory taking

Answer 5

govt action adversely affects property value

NOTE: whether taking occurs depends on extent of economic inteference:
1. denial of ALL economic value: taking; requires compensation
2. denial of NEARLY all value: depends on
* social goals promoted
* diminution in value to owner, and
* interference w/ owner’s investment expectations

Question 6

is the taking for public use?

Answer 6

taking is for public use if govt has a reasonable belief the taking will benefit the public (low standard)
- use will be viewed as benefitting the public as long as it’s rationally related to some legitimate public purpose

Question 7

is just compensation paid?

Answer 7

measured in terms of loss to owner
- measured by fair market value of property @ time of taking