10. Con Law: Takings

5th amendment prohitibts gov'tal taking of private property for public use without just compensation. Applicable to the states via the 14th amendment.

Takings questions often arise in connection with states' exercise of their police power.

The 5th amendment is not a grant of power, but rather is a limitation on power. The power for a taking must arise from some other source, ie, police power.

Can apply to a complete taking of real property or to damage or impairment of property or to intangibles.

A use will be held to be public as long as it is rationally related to a legitimate public purpose.

The gov't may even authorize a taking by private enterprise, as long as the taking will redound to the public advantage.

The gov't need not pay compensation for mere regulation of property. Thus, whether gov't action amounts to a taking or is merely regulation is a crucial issue. The Q is one of degree, no clear cut formula. The following are guidelines:

1.) actual appropriation or physical invasion -- almost always a taking, but not if it's due to an emergency situation

• 2.) use restrictions --
• -- if all economic value of land is permanently destroyed, there is a taking;
• -- if there's temporary denial of all economic value, the court will examine and weight all relevant circumstances to determine whether fairness and justice require just compensation;
• -- if the regulation decreases economic value, there is no taking as long as they leave an economically viable use for the property, the court will consider whether the reg substantially interferes with distinct, investment backed expectations of the claimant;

If a reg is ruled a taking, the gov't will be required to either:

-- pay the property owner compensation for the taking; or

• -- terminate the regulation and pay the owner for damages that occurred while the regulation was in effect
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STANDING: The right to claim a taking is not limited to persons who held title to the property at the time a challenged use restriction was imposed. A person who purchases property after a regulation is in place may still bring the claim.

The owner is entitled to the reasonable value of her property at the time of the taking -- fair market value.

Due process guarantees notice and hearing, administrative or judicial, on the amount of compensation, but the hearing need not precede the taking.