The "Taking" Clause

Question 1

what is the “taking” clause of the 5th amendment? (2 components)

Answer 1

provides that private property may only be taken (1) for public use and (2) the government must pay just compensation

Question 2

how is the taking clause applied to the states?

Answer 2

via the 14th amendment

Question 3

what “property” is subject to the taking clause?

Answer 3

personal property, real property, and certain intangibles

Question 4

when will a physical taking be found? (2 options)

Answer 4

if there is…
1) confiscation of a person’s personal property, or
2) a permanent or regular physical occupation of a person’s property by the government

Question 5

what factors are considered in determining whether temporary occupation is a taking? (6)

Answer 5

• degree of invasion
• duration
• government’s intention
• foreseeability of result
• character of the property
• interference with the use of the property

Question 6

what are the 2 exceptions to the taking clause?

Answer 6

1) the development exception
2) the emergency exception

Question 7

when has there been a taking based on developmental conditions? (2 situations)

Answer 7

when municipalities condition building or development permits on a landowner’s (1) conveying title to part of the property to the government or (2) granting the public an easement to access the property

Question 8

when does the development exception apply (no just compensation required for the taking)?

Answer 8

if the govt can show…
1) that there is an ESSENTIAL NEXUS between the condition and the proposed development (condition relates to a legit govt interest), 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 9

what is the emergency exception to the taking clause?

Answer 9

a taking is less likely to be found even for a complete and permanent deprivation if its made pursuant to a public emergency (such as war)

Question 10

generally, will govt regulation that denies a landowner of ALL economically viable use of their land constitute a taking?

Answer 10

YES
**NOTE = mere decrease in value to the land is generally NOT enough to constitute a taking

Question 11

when will denial of all economic value of land nonetheless NOT be a taking?

Answer 11

when principles of nuisance or property law make the use prohibitable

Question 12

true or false: even temporary deprivations of all economic use of property will be considered a taking per se.

Answer 12

FALSE (only PERMANENT deprivations are takings per se)

Question 13

what factors does a court consider in determining whether a temporary deprivation of all economic value amounts to a taking (requires just compensation)?

Answer 13

• the planner’s good faith
• reasonable expectations of owners
• length of delay
• delay’s actual effect on the value of the property

Question 14

what 3 factors does a court consider in determining if a mere decrease in value to land amounts to a taking?

Answer 14

• government interests sought to be promoted
• diminution in value to the owner
• whether the regulation substantially interferes with distinct, investment backed expectations of the owner

Question 15

when is there a valid “public use” for taking clause purposes?

Answer 15

when the government’s action is rationally related to a legitimate public purpose (very broad)

Question 16

what is just compensation measured by?

Answer 16

measured by the fair market value of the property taken at the time of the taking, AND is based on the loss to the owner
**NOTE = increases in value to owner are NOT considered (only losses)