Takings

Question 1

What does the Fifth Amendment Takings Clause provide?

Answer 1

“Private property [shall not] be taken for public use, without just compensation.”

Question 2

According to the plain text of the Fifth Amendment, what are the two most basic requirements that must be met for the government to take property?

Answer 2

1. Property must be taken for “public use.”
2. Government must pay just compensation to the owner.

Question 3

What standard (strict scrutiny, rational basis, etc.) is the public purpose test analyzed under?

Answer 3

Rational basis

Question 4

Summarize the holding of:

Kelo v. City of New London

Answer 4

(U.S. 2005) A taking of private property for transfer to another private party qualifies as “public use” if it is part of a broader economic development plan benefiting the public.

In Kelo v. City of New London, the city planned to revitalize its economy by condemning homes, including Kelo’s, and transferring the land to private developers.

The U.S. Supreme Court upheld the use of eminent domain, reasoning that the economic development plan served a public purpose. Even though the property was transferred to private entities, the broader public benefit satisfied the “public use” requirement of the Fifth Amendment.

Here, factors considered in analyzing “public use” included that the economic development zone would create new jobs, tax revenue, other public benefits, and the fact that the transfer was pursuant to a comprehensive plan and careful deliberations.

Question 5

What constitutes a taking under Loretto v. Teleprompter Manhattan?

Answer 5

Government action that constitutes a permanent physical occupation of all or part of the property.

E.g., government passes a statute requiring landlords to permit cable companies to install wires on apartment buildings; physical occupation of even 1/2 inch of property constitutes a taking.

Question 6

What constitutes a taking under Lucas v. South Carolina Coastal Council?

Answer 6

Government action that results in a total diminution of economic value.

E.g., homeowner buys beachfront lots, after which the government passes a statute barring all beachfront construction.

Question 7

When it comes to takings, does the government’s mere desire to “prevent harm” (in the context of a public nuisance) trigger per se validity of a taking?

Answer 7

No, the mere desire to prevent public harm is insufficient to trigger per se validity of taking. Instead, a taking may be per se valid if it abates a common law nuisance (i.e., the nuisance must be clearly established under the common law such that the property owner has notice that an activity is a nuisance).

Question 8

In what circumstances can government action constitute a per se taking?

Answer 8

1. Permanent physical occupation of property
2. Total diminution of a property’s value

Question 9

Where there is no per se taking, what factors do courts balance to determine whether a taking has occurred?

Answer 9

1. The economic impact of the regulation on the claimant (i.e., was there a substantial diminution in the claimant’s property value?)
2. The character of the governmental regulation (i.e., does the action balance benefits and burdens? Does it “single out” the property owner?)
3. The claimant’s investment backed expectations (i.e., does the regulation impact with the owner’s justifiable future plans/anticipated income for the property?)

Question 10

What is an exaction?

Answer 10

Governmental requirements that developers provide goods, services, or payment to offset the impact of a project as a condition of project approval.

Question 11

As a general rule, when is an exaction permissible?

Answer 11

If the government establishes a reasonable relationship, or an “essential nexus,” between the exaction requested and the project in question.