The Taking Clause Flashcards
What is the Taking Clause?
Private property may not be taken for public use without just compensation.
A valid taking must first be for a public use. How is the “public use” limitation construed?
Liberally. The government action is for a public use if rationally related to a legitimate public purpose. Ex: health, welfare, aesthetic reasons.
Authorized takings by private enterprises (railroad, public utilities) are included if they redound to the public advantage.
If the state action is a taking, what is required?
Just compensation, measured by the loss to the owner (FMV of property taken).
If the state action is a regulation, what is required?
Compensation is not required.
What can the landowner do if his property is taken by occupation or regulation?
Bring an action for inverse condemnation.
If the court determines that the state action was actually a taking, the government is required to either:
- Pay just compensation, or
- Terminate the regulation and pay owner temporary taking damages
What if worthless property is taken?
Because just compensation is measured by the loss to the owner, no compensation is required if the property taken is worthless.
How do we know that there has been a “taking”?
No clear-cut formula, but use the following guidelines:
- Actual appropriation or physical invasion
- Denial of all economic value of the land = taking
Do temporary denials of all economic use constitute a taking?
Such temporary denials are not a per se taking.
Court will examine and weigh all the relevant circumstances to determine whether “fairness and justice” require just compensation: good faith, reasonable expectations, length of delay, actual delay, delay’s actual effect on value.
What if the state action only decreases the value of the property?
They are not a taking if they leave an economically viable use for the property.
Court will consider economic impact of the regulation on the owner and whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.
Is this a taking?
Condemnation of land to build highway
Yes
Is this a taking?
Creating public access easement on private property
Yes
Is this a taking?
Abolishing inheritance rights
Yes
Is this a taking?
Zoning ordinances that prohibit the most beneficial use of the property
No, there is still an economically viable use
Is this a taking?
Ordering destruction of diseased trees
No
Landmark ordinances
No
