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The takings Clause

Explore the concept of takings and eminent domain, analyzing key cases and discussing the power of the government to take private property for public use. Understand the requirements of just compensation and the impact on property owners.

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The takings Clause

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  1. The takings Clause POLS 4130: American Constitutional Law B. Fairbanks 7/24/2017

  2. Major Points for Today’s Class • Discussion of the concept of takings and eminent domain • Analyze and discuss the assigned cases on these topics

  3. Eminent domain • The power of a government to take private property for public use. • Similar to expropriation • Since 1215, it was generally accepted that governments must compensate • The Takings Clause (Amendment V) • the federal and state governments have the power of eminent domain as long as “just compensation” is provided.

  4. Early Takings Clause Cases • Barron v. Baltimore (1833) — Takings Clause requirements of “just compensation” in cases of eminent domain do not extend to the states. • Chicago, Burlington, & Quincy Railroad Co. v. City of Chicago (1897) — overturned Barron and incorporated the Takings Clause to the states under the Due Process Clause of the 14th Amendment.

  5. What is a Taking? • A Taking occurs when the government encroaches upon or occupies private land for its own proposed use. • Two types of takings: • Physical takings • The taking by a government via eminent domain of physical property. It may be permanent or temporary. • The procedure is know as “condemnation” • Example: The appropriation of land to expand roads or build sidewalks • Regulatory takings • A result of government regulation that have an adverse effect on property value or condition. • The procedure is know as “inverse condemnation” • Example: re-zoning of property if no economically viable use can be determined

  6. U.S. v. Causby(1946) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

  7. Penn Central Transportation Company v. City of New York (1978) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

  8. Penn Central Test • What is the economic impact on property? • What is the extent of the interference with investment-backed expectations ? • What is the character of the governmental action? • Fourth prong of the test was added in Agins v. City of Tiburon (1980): • What are the private and public (government) interests at hand in the taking? • This was later repealed in Lingle v. Chevron U.S.A. Inc. (2005)

  9. Lucas v. South Carolina Coastal Council (1992) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

  10. Regulation and Takings • Government regulations are not takings unless they do more than “incidentally infringe” on owner’s use of the property • It is okay to regulate noxious or dangerous uses • Loretto v. Teleprompter Manhattan CATV Corp (1982) – a regulation is a “taking” if it forces a permanent physical occupation of a person’s property (ex. Installation of cable lines) • Nollan v. California Coastal Commission (1987) — a regulation does not constitute a taking if it is found to advance state interest and if the owner is justly compensated for the economic viability of the land.

  11. Defining Just compensation • Olson v. United States (1934) — just compensation includes all the elements of value on/within the property, but cannot exceed market value. Market value is the value of the property at the time of the taking paid in money. • United States v. Commodities Trading Corp. (1950) — “just compensation” during times of war qualifies as the ceiling price of a item/commodity when rations or price controls are in place. • United States v. 50 Acres of Land (1984) — deviation from market value of a taking can only occur when the value is too difficult to find or it would result in an injustice to the owner or the public at large.

  12. Public use • For the government to exercise the power of eminent domain, the taking must be classified for “public use” • What does the term “public use” mean? • Gilmer v. A Certain Tract of Land (Cali. 1861) — The taking must be of a use that benefits the whole community, but not to the degree that its use affects or is used by each individual in the same way. • Berman v. Parker (1954) — The taking of private property for public purpose, (i.e. removing blight/causes of blight from a community) rather than simply public use was justified under the Takings Clause, as long as the just compensation requirement was met.

  13. Hawaii housing Authority v. Midkiff(1984) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

  14. Kelov. City of New London (2005) • What is the background (facts)? • What is the legal issue(s)? • How does the Court rule? • What is its rationale/reasoning? • Were there any dissents/concurrences? What did they say?

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