Taking Clause

Question 1

IN GENERAL

Answer 1

• 5th Amend prohibits governmental taking of private property “for public use w/o just compensation.”
• The prohibition is applicable to the states through 14th Amend, & taking questions often arise in connection w/ states’ exercise of their police power (power to legislate for health, welfare, safety, etc., of people).

Question 2

Not a Grant of Power

Answer 2

• 5th Amend is not a grant of power, but a limit on power (taking must be for a public purpose & compensation must be paid).
• The power for a taking must arise out of some other source (ex. police power).

Question 3

Scope of Taking

Answer 3

• Taking includes physical takings of property & some governmental action that significantly damages property/impairs its use (ex. frequent flyovers by airplanes near airport)
• Moreover, even personal property & intangibles may be subject of a taking.
• Ex. raisin growers must be paid just compensation for being required to set aside a portion of their crops for gov pursuant to fed regulations, even if growers retain a contingent interest in the reserved portion
• Ex. gov requirement that trade secret be disclosed may be a taking where gov takes & discloses secret in a way that it diminishes secret’s economic value & interferes w/ reasonable, investment-backed expectations of its holders

Question 4

“PUBLIC USE” LIMITATION LIBERALLY CONSTRUED

Answer 4

• Ct will not review underlying policy decisions like general desirability for a particular public use/ extent to which property must be taken therefor.
• A use will be held to be “public” if it is rationally related to a legit public purpose, (ex. health, welfare, safety, moral, social, economic, political, or aesthetic ends).
• Gov may even authorize a taking by private enterprise, if taking will contribute to the public advantage (ex. railroads & public utilities)

Question 5

“TAKING” VS. “REGULATION”

Answer 5

• While gov must fairly compensate owner when her property is taken for public use, it need not pay compensation for mere regulation of property.
• Thus, whether gov action amounts to a taking/ regulation is a crucial issue.
• The question is one of degree; there is no clear cut formula for determining whether there has been a taking.
• The following guidelines have emerged.

Question 6

Actual Appropriation or Physical Invasion

Answer 6

• Taking: an actual taking/destruction of a person’s property/a permanent/regular physical invasion by gov/by authorization of law.

Question 7

Exception—Emergencies
.

Answer 7

• Taking is less likely in emergency situations, even where there is destruction/actual occupation of private property

Question 8

Damage from Temporary Interference with Use
.

Answer 8

• Gov action that is a temporary physical invasion of property may be a taking.
• Ct will look at factors like degree of invasion, duration, gov’s intention, foreseeability of result, character of property, & severity of interference w/ its use.
• Ex. temporary flooding caused by gov release of dammed up waters can amount to a taking

Question 9

Use Restrictions: Denial of All Economic Value of Land—Taking

Answer 9

• If gov regulation denies landowner of all economic use of his land, regulation is equivalent to physical taking unless principles of nuisance/property law that existed when owner acquired the land make use prohibitable.
• Ex. state’s zoning ordinance, adopted after owner purchased lots, amounted to a taking b/c ordinance prohibited owner from erecting any permanent structures on his lots

Question 10

Temporary Denials of All Economic Use

Answer 10

• Temporarily denying owner of all economic use of property does not constitute a per se taking.
• Instead, Ct will carefully examine & weigh all relevant circumstances
• planners’ good faith, reasonable expectations of owners, length of delay, delay’s actual effect on value of property, etc in order to determine whether “fairness & justice” require just compensation.
• Ex. no taking where there was a 32-month moratorium on land development in the Lake Tahoe Basin while a comprehensive land-use plan was being developed for the area

Question 11

Decreasing Economic Value

Answer 11

• Generally, regulations that merely decrease value of property (ex. prohibit its most beneficial use) do not necessarily result in a taking, if they leave an economically viable use for property.
• Ct considers
  (1) social goals sought to be promoted;
  (2) reduction in value to owner; and
  (3) whether regulation substantially interferes w/ distinct, investment-backed expectations of owner.

Question 12

Building/Development Permits—Exaction of Occupation Rights

Answer 12

• Municipalities often attempt to condition building/ development permits on landowner’s
  (1) conveying title to part, or all, of property to gov or
  (2) granting the public access to property (ex. easement across property).
• Such exactions constitute an uncompensated taking unless
  (1) gov can show condition relates to a legit gov interest (nexus) and
  (2) adverse impact of proposed building/ development on the area is roughly proportional to loss caused to property owner from forced transfer of occupation rights (proportionality)

Question 13

Permit Denials

Answer 13

• Gov’s demand for property w/ respect to a land-use permit application must satisfy the Nollan/Dolan requirements, above, even when gov denies a permit
• A refusal to issue a permit based on refusal to dedicate land under terms that do not satisfy the nexus and/or proportionality requirements of Nollan & Dolan constitutes a taking.

Question 14

Utility Rate Regulation

Answer 14

• No taking where gov sets rates that utility companies can charge, if rates are not set so low that they are unjust & confiscatory.

Question 15

Zoning Ordinances

Answer 15

• Govs may adopt zoning ordinances that regulate the way real property may be used, pursuant to police power (ex. limiting development in a particular area to single-family homes, restricting buildings to a particular height, etc.)
• Such regulations generally are not a taking—even if they deny an owner the highest & best use of her property—unless they:
  (1) amount to a physical taking,
  (2) deny an owner of all economic use, or
  (3) unreasonably interfere w/ distinct, investment-backed expectations

Question 16

Remedy—Inverse Condemnation

Answer 16

• When gov acts under power of eminent domain to take property for public use, it will condemn the property & pay owner just compensation
• When property is taken by occupation/regulation w/o condemnation proceedings, landowner can bring action for inverse condemnation.
• If ct determines the gov action amounted to a taking, gov will be required to either:
  (i) Pay property owner compensation for taking (see below); or
  (ii) Terminate regulation & pay owner for damages that occurred while regulation was in effect (ex. temporary taking damages

Question 17

Who May Sue

Answer 17

• Right to claim a “taking” is not limited to persons who held title to property at the time a challenged use restriction was imposed.
• A person who purchases property after a regulation is in place still may bring a taking claim

Question 18

“JUST COMPENSATION”

Answer 18

• Owner is entitled to FMV of her property at time of the taking—not value it would have if put to its highest & best use.
• The measure is based on loss to owner, not gain to taker.
• Increases in value to owner’s remaining property as a result of the taking cannot be used to offset damages.
• Due process guarantees notice & hearing, admin/ judicial, on amount of compensation, but hearing need not precede the taking

Question 19

“Worthless” Property

Answer 19

• Property that is “worthless” to owner can be subject of a taking, but no compensation need be paid when it is taken.