Glossary of Property II - Regulatory Takings
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- What is the Takings Clause of the 5th Amendment?
- It states private property shall not be taken for public use without just compensation. This is made binding on the states by means of the 14th Amendment.
- When will a taking be found?
- 1. If the goverment authorizes a permanent physical occupation of the land.
2. If regulation causes the loss of all economically beneficial or productive use of land, or
3. If gov't demands an exaction that either lacks an essential nexus with a legitimate state interest or lacks rough proportionality to the impacts of the proposed project.
- What are the types of Categorical Takings?
- 1. Physical Takings
2. Loss of all Economically Beneficial or Productive Use
- What is a physical taking?
- A permanent physical occupation of land authorized by gov't is a taking regardless of whether the action achieves an important public benefit or has only minimal economic impact on the owner.
- How do you determine if a taking is short of being permanent?
- Apply the Penn Central balancing test.
- What is the remedy for a physical taking?
- Money damages
- Are physical takings per se takings?
- When is a taking due to Loss of all Economically Beneficial or Productive Use
- A taking will always be found if regulation elminates all "economically beneficial or productive use of land" unless teh regulation is justified under background principles of property or nuisance law.
- What is the test used to determine a Total Economic taking?
- First Part - A total taking inquiry must involve analysis of these factors:
1. The degree of harm to public lands and resources, or
2. Adjacent private property posed by the claimants proposed activities.
3. The social value of the claimant's activities and their suitability to the locality in question, and
4. The relative ease with which the alleged harm can be avoided through measures taken by the claimant and the gov't or adjacent private landowners alike.
Second Part - Is the land economically beneficial or productive?
1. The Lucas test doesn't mandate a "profitable" use.
Third Part - If yes to the above, then presumed a taking and the burden shifts to the gov't to prove it wasn't a taking.
1. The gov't must now show that the prohibited use would violate the background principles of the States law of property and nuisance that govern law ownership.
Note: Relevant background principles are the Public Trust Doctrine and the right to destroy property without compensation in emergency situations.
- What is an Exaction?
- The wrongful demand of a reward or fee for an official service performed in the normal course of duty.
- A condition (which the land use permit is conditioned on) is lawful only if what?
- 1. There must be an "essential nexus" between teh exaction and a legitimate state interest that it serves, AND
2. The exaction must be "roughly proportional" to the nature and extent of the project's impact. (This is the reasonable test or in other words if the burden imposed isn't reasonable/not rougly proportional to the benefits obtained by the gov't there is a taking)
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