The "Taking" Clause

Question 1

The Fifth Amendment provides that private property may only be taken: (2 things)

Answer 1

(1) For public use and

(2) The government must pay just compensation

Question 2

What kinds of property are subject to the Taking Clause? (3 things)

Answer 2

(1) Personal property
(2) Real property
(3) Certain intangibles like interest on attorney trust accounts and trade secrets (but not welfare benefits)

Question 3

For physical takings, a taking will be found if there is: (2 things)

Answer 3

(1) A confiscation of a person’s property OR

(2) A permanent or regular physical occupation of a person’s property by the government

Question 4

Temporary occupations by the government may be takings, depending on factors like: (6 things)

Answer 4

(1) The degree of invasion
(2) The duration
(3) The government’s intention
(4) The foreseeability of the result
(5) The character of the property
(6) The interference with the use of the property

Question 5

Name the two exceptions to the Takings Clause (i.e., when the government takes property but it is not considered a “taking” for constitutional purposes).

Answer 5

(1) The development exception

(2) The emergency exception

Question 6

Explain the development exception to the Takings Clause.

Answer 6

The government can require developers to set aside land for public streets to provide ingress and egress, as well as easements for water and electricity.

These conditions constitute a taking unless:
(1) The government can show there is an essential nexus between the condition and the proposed development, and

(2) The adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.

Question 7

Explain the emergency exception to the Takings Clause.

Answer 7

A taking is less likely to be found, even for a complete and permanent deprivation, if it’s made pursuant to a public emergency, such as war.

Question 8

HYPO: The government constructs a dam, which permanently floods a part of some private property. Is there a taking?

Answer 8

Yes. It doesn’t have to be a taking of the entire property.

Question 9

HYPO: The Army Corps of Engineers releases dam water, which causes temporary downstream flooding, to ease an upstream storm water buildup. The flooding doesn’t cause permanent damage or result in a long-term exclusion or use of the property, it wasn’t predictable, and there wasn’t a likelihood that it would re-occur. Is there a taking?

Answer 9

No. Since this is a temporary taking, we have to consider the entirety of the circumstances. Here, there’s no permanent damage, no long-term exclusion or use of property, and there is a low likelihood of recurrence.

Question 10

HYPO: The government conducts regular military flights over a chicken farm at low altitude, which scares the chickens to death (literally). Is there a taking?

Answer 10

Yes. The nature and character of the government’s interference is functionally the same as the government coming in and killing the chickens directly.

Question 11

HYPO: Some apartment owners are required to have a small space available in the apartments for cable TV equipment. Is there a taking?

Answer 11

Yes. Cable TV isn’t an essential (like electricity, water, etc.), so this doesn’t fit into the developer exception.

Question 12

HYPO: The government destroys oil facilities to prevent them from falling into enemy hands during World War II. Is there a taking?

Answer 12

No. This was a wartime taking subject to the emergency exception.

Question 13

Explain the rule regarding regulatory takings if there is a denial of all economic value of land.

Answer 13

If a government regulation denies a landowner of all economically viable use of their land, the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.

Question 14

True or false: Temporarily denying an owner of all economic use of property does not constitute a per se taking.

Answer 14

True. The Court will carefully examine and weigh all the relevant circumstances—the planners’ good faith, the reasonable expectations of the owners, the length of the delay, the delay’s actual affect on the value of the property, and so on—to determine whether “fairness and justice” require just compensation.

Question 15

True or false: Generally, regulations that merely decrease the value of property (e.g., prohibiting the most beneficial use) do not amount to a taking if they leave an economically viable use for the property.

Answer 15

True

Question 16

What is the balancing test to determine whether a regulation that decreases economic value is a taking?

Answer 16

The Court will consider:
(1) The government interests sought to be promoted

(2) The diminution in value to the owner
(3) Whether the regulation substantially interferes with distinct, investment-backed expectations of the owner

Question 17

HYPO: The designation of Grand Central Station as a landmark prevents a proposed upward expansion of the building. However, the owner can still expand the building in other ways. Is there a taking?

Answer 17

No. First, it wasn’t a bright-line taking because there were other viable economic uses. Second, there was not a regulatory taking under the balancing test. The government had an important public interest in preserving the historic character and architectural value of the landmark. There were also still other expansions available.

Question 18

HYPO: A zoning ordinance permanently prohibits the owner of a beachfront lot from building on the lot. Is there a taking?

Answer 18

Yes. This was a regulatory taking - the permanent ban on development meant they were deprived of all economic use of the property.

Question 19

HYPO: A moratorium prohibits development on property for 32 months pending the completion of a comprehensive land-use plan. Is there a taking?

Answer 19

No. It wasn’t a bright-line taking because there was a prospect of future development. Under the balancing approach, the government approach was high for developing a land-use plan, and still the prospect of future development available.

Question 20

What is the standard for “public use” in the context of takings?

Answer 20

If the government’s action is rationally related to a legitimate public purpose (e.g., for health, welfare, safety, economic, or aesthetic reasons), the public use requirement is satisifed.

Authorized takings by private enterprises are included if they work to the public advantage (e.g., railroads and public utilities).

The “public use” limitation is very liberally construed.

Question 21

What does “just compensation” entail in the context of takings?

Answer 21

Just compensation is measured by the fair market value of the property taken at the time of the taking, and it’s based on the loss to the owner. Increases in value to the owner’s remaining property as a result of the taking are NOT considered.

Question 22

Under what circumstances may a landowner bring an action for inverse condemnation?

Answer 22

When property is taken by occupation or regulation without prior condemnation proceedings

Question 23

If a property owner prevails in an action for inverse condemnation, the government will be required to either: (2 things)

Answer 23

(1) Pay 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 (i.e., temporary taking damages)