The Takings Clause Flashcards
The Takings Clause in General
The fifth amendment takings clause (applicable to the states through the fourteenth amendment) provides that private property may be taken
1) for public use
2) if the government pays just compensation
Property Covered by Takings Clause
Property subject to the takings clause includes personal property, real property, and certain intangibles (interest on attorney trust accounts and trade secrets) (not welfare)
The taking doesn’t have to be total, it can be one stick in the bundle of rights
Physical Taking
A physical taking will be found if there is
1) a confiscation of a person’s property; or
2) a permeant or regular physical occupation of a person’s property by the government
Temporary Occupations
Temporary occupations by the government may also be a taking, depending on factors like the degree of the invasion, the duration, the government’s intention, the foreseeability of the result, the character of the property, and the interference with the use of the property
Development Exception (Takings Clause)
Municipalities often attempt to 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.
These conditions constitute a taking unless
1) the government can show an essential nexus between the condition and the proposed development (condition relates to a legitimate government 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
Emergency Exception (Takings Clause)
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.
Tests for Regulatory Takings
1) denial or all economic value of land
2) decreasing economic value
Denial of All Economic Value (Regulatory Taking)
If a government regulation denies a landowner of all economically viable use of their land (prohibiting any building on the land), the regulation amounts to a taking unless principles of nuisance or property law make the use prohibitable.
HOWEVER, temporarily denying an owner of all economic use of property does not constitute a taking per se. The court will carefully examine and weigh all relevant circumstances
– planner’s good faith
– reasonable expectations of the owners
–length of delay
– delay’s actual effect on value
Decreasing Economic Value (Regulatory Taking)
Generally, regulations that merely decrease the value of property (prohibiting the most beneficial use) do not amount to a taking if they leave an economically viable use for the property.
When determining if the regulation goes to far to amount to a taking, the court will consider:
1) the government’s interest sought to be promoted
2) the decrease in the value to the owner
3) whether the regulation substantially interferes with distinct, investment backed expectations of the owner
What Constitutes Public Use
If the government’s action is rationally related to a legitimate s public purpose (health, safety, welfare, safety, economic, or aesthetic reasons), the public use requirement is satisfied.
Authorized takings by private enterprises are included if they work to the public advantage (rail roads, public utilities)
Just Compensation
Just compensation is 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. Increases in value to the owner’s remaining property as a result of the taking are not considered.
Inverse Condemnation
When the government acts under eminent domain to take property for public use, it will condemn the property and pay the owner just compensation.
When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation.
If the court determines that the government action amounted to a taking, the government will be required to either:
1) pay the owner just compensation; or
2) terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (temporary taking damages)
Examples of Takings v. Regulations
Condemnation of land to build highway = taking
creating public access easement on private property = taking
abolishing inheritance rights = taking
zoning ordinances that merely prohibit the most beneficial use = regulation
ordering destruction of diseased trees = regulation
landmark ordinances generally = regulation
