The Taking Clause

Question 1

The Taking Clause

Answer 1

The Fifth Amendment provides that private property may only be taken:
-For public use; and
-The government must pay just compensation

Determination: whether a government action is a taking or merely a regulation

Notes:
-Applies to state and federal government
-Applies to personal, real, and certain intangible property

Question 2

Physical Takings

Answer 2

A taking will be found if there is:
-A confiscation of a person’s property; or
-A permanent or regular physical occupation of a person’s property by the government
>A temporary occupation may be a taking depending on the totality of the circumstances

Exceptions:
-Development exception: taking unless (1) government can show essential nexus between condition and proposed development; and (2) proportional impact
>Applies when municipality conditions a permit on a landowner conveying title to part of the property to the government or granting the public an easement to access the property
-Emergency exception: not a taking when its made pursuant to a public emergency

Question 3

Regulatory Takings

Answer 3

Taking per se: 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

Regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the property; courts consider:
1. Government interests sought to be promoted
2. Diminution in value to the owner; and
3. Whether the regulation substantially interferes with distinct, investment-backed expectations of the owner

Question 4

Taking vs. Mere Regulation

Answer 4

Taking
-Condemnation of land to build highway
-Creating public access easement on private property
-Abolishing inheritance rights

Mere Regulation
-Zoning ordinances are prohibit the most beneficial use of property
-Ordering destruction of diseased trees
-Landmark ordinances generally

Question 5

“Public Use”

Answer 5

Liberally construed - government’s action only needs to be rationally related to legitimate public purpose (i.e., police power)
-Authorized takings by private enterprises allowed if they work to public advantage (i.e., Pfizer plant)