Takings law

Question 1

What is the Takings Clause of the Federal Constitution’s Fifth Amendment?

Answer 1

Nor shall private property be taken for public use, without just compensation

Question 2

What is a traditional taking?

Answer 2

Traditional takings- government’s imminent power to take property (imminent domain)

• Allows local state and federal entities to acquire property involuntarily for a public purpose (ex- roadways, schools, emergency services such as fire departments and hospitals etc), and the government must pay fair market value

Question 3

What is a is regulatory or implicit takings and inverse condemnation?

Answer 3

not outright taking your property but rather regulating the way you use your property

These people can’t use their property, but they don’t get paid like traditional takings until 1922 when the possibility of payment came up

Question 4

What is harm prevention?

Answer 4

the government stops someone from causing real damage to others (ex: blocking pollution).

If a regulation just prevents you from harming, the government usually does not owe you compensation

Question 5

What is benefit conferral?

Answer 5

The government passes a law or regulation to create a benefit for someone else, but it takes away your property rights to do it.

In that case, the government usually must pay you compensation — because you are being forced to sacrifice for the public good

Question 6

What is the general rule for when a government should provide compensation for a regulation?

Answer 6

Armstrong case- A regulation goes too far when it is unfair and unjust to an individual claimant absent compensation

Question 7

What is the denominator question?

Answer 7

What are we measuring the property loss against?

Question 8

What are factors weighing whether a regulation has gone too far?

Answer 8

1) Economic impact of the regulation on the owner- Threshold
2) the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations- Threshold
3) the character of the government action involved in the regulation- balancing
4)is the regulation unfair or unjust to prevent just compensation

Question 9

When does character of government action weigh in favor of the government?

Answer 9

• If the regulation shares burdens fairly (zoning, height limits, historic districts).
• Prevents harm to others or their property (alcohol, margarine, bricking making, quarries, subsidence, etc)
  -resolves unavoidable conflicts
  -involves an important regulatory goal

Question 10

When does character of government action weigh in favor of the property owner?

Answer 10

• If the government singles out individuals for burdens without giving them shared benefits
• If the government takes core rights (like right to exclude, sell, pass on property)
• If it involves a non important regulatory goal

Question 11

When do Reasonable Investment Backed Expectations weigh in favor of the government?

Answer 11

➔ If the owner’s investment was made after regulation was already in place.
➔ If the owner only had vague hopes/plans (not actual use yet)

Question 12

When do Reasonable Investment Backed Expectations weigh in favor of the property owner?

Answer 12

• If the owner had vested rights (built something, started a business) from an investment before the regulation
• If the owner reasonably relied on existing law when they invested

Question 13

When does economic impact weigh in favor of the government?

Answer 13

• f the property still has some valuable economic uses after the regulation
  (shows that the owner still has value)

Question 14

When does economic impact weigh in favor of the property owner?

Answer 14

• If the regulation wipes out all or most of the economic use of the property
  (narrow to the exact part of the property being restricted)