Text Assist for Takings Clause Flowchart

The Fifth Amendment prohibits "private property [from being] taken for public use without just compensation." The sovereign governments of the United States (both federal and state governments) have the power, through eminent domain, to take a person’s private property as they wish as long as they pay for it. Usually, the most difficult issue in eminent domain cases is whether or not there was a "taking." Not meant to discourage you from mastering this concept, but a leading eminent domain scholar described the Supreme Court’s handling of this topic as "a crazy-quilt pattern." See Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Exappropriation Law, 1962 Sup.Ct.Rev. 63. Take a look for yourself to see which cases you agree with (and which enrage you...)

Identify the interest involved:

There must be a reasonable investment-backed expectation that is taken away from the owner. This may include any of the following:
1) Real property (e.g. land)
2) Personal Property (e.g. oil, cars)
3) Entitlements (e.g. governmental benefits to which one is "entitled")
4) Intangibles (e.g. trade secrets)

State law, not the constitution, defines property:
Property rights are subject to the definitions and limitations set by each state. Keep in mind, however, that the ability of the government to limit property rights is subject to constitutional limitations, such as the First Amendment, Equal Protection and Due Process. For example, a state government may not define property rights as contingent on the provision that the property never be sold to a racial minority. This would violate the Equal Protection Clause. Shelley v. Kraemer, 334 U.S. 1 (1948).

Does it constitute fifth amendment "property"?
The key concept in defining "property" is entitlements -- presently enjoyed rights or interests. When the government recognizes that an individual is legally entitled to a benefit, it creates an expectation by that individual that the benefit will not be arbitrarily terminated. The individual must "presently enjoy" the right. Due Process does not protect a person applying for benefits. See Board of Regents v. Roth, 408 U.S. 564 (1972).

Not all economic interests are "property" for takings clause purposes
There must be a reasonable investment-backed expectation that is taken away from the owner.

Exercise of eminent domain power
The government may at any time exercise it power of "eminent domain" to take a person’s private property, as long as it pays just compensation. Both the federal and state governments have the power of eminent domain.

Is it for a public use?

Physical and Permanent Invasion of Owners’ Land
If the government uses the property or allows the public to use it, there is a per se taking. However, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.

Regulating the users of the property: "Users" being the key word --
In the case where the government singles out a specific property owner to donate his land to the public, there is an arbitrary taking.

Regulating the use of the property "Use" being the key word --

Real Property
Where a regulation deprives all economically or productive use of someone’s land, a taking has occurred. A mere diminution in property is not a taking. The Supreme Court in Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964) held that a regulation banning land development was not a taking because the land still had value.

Personal Property
Where a regulation deprives the owner of all economic and personal use of the property, there is a taking. The Supreme Court held in Andrus v. Allard, 444 U.S. 51 (1979) that a ban on the sale of eagle feathers was not a taking because the owner could use the feathers for other purposes.

Strong means-ends nexus required -- Strict Scrutiny

Strict Scrutiny Test:
1) Does the law further a compelling state interest? (ENDS must be compelling);
2) What MEANS are being used by the state to meet the compelling state interest; and
3) Are the MEANS necessary or narrowly tailored? (If the law is found overbroad, it will be struck down as unconstitutional.)

Strict Scrutiny Distinguished from the Rational Basis Test:
1) Strict Scrutiny "strictly scrutinizes" the law. The law being looked at must involve a "compelling" state interest, which is much more urgent than a reasonable state interest (Rational Basis) or even an important state interest (Intermediate Scrutiny -- used by the Supreme Court in gender or illegitimacy cases).
2) Strict Scrutiny Standard: The burden of proof is on the government.
3) Rational Basis Standard: Presumption that the law is valid.

Does the interference substantially advance a legitimate governmental interest?
A "legitimate" governmental interest (the requirement for the Rational Basis Test) is much easier to extract and defend than a "compelling" governmental interest (which is the requirement for the Strict Scrutiny Test).

Minimal means-ends nexus required -- Rational Basis:

Rational Basis Test:
1) What is the Objective of the Law (ENDS); *
2) What MEANS are being used by the state to meet that objective; and
3) Are the MEANS rationally related to the ENDS? **

* A court will not probe for the true purpose of a law.
** Keep in mind that courts are extremely deferential to the legislature when applying the Rational Basis Standard.

Does possession destroy essential attributes of property ownership?

Physical and Permanent Invasion of Owners Land
If the government uses the property or allows the public to use it, there is a per se taking. However, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.

The Court found a taking had occurred in the following situations:
1) The noise from U.S. military airplanes when such noise made farming impossible: This was a taking even though the government made no actual claim to the land. U.S. v. Causby, 328 U.S. 256 (1946).

2) A Pennsylvania law banning subsurface coal mining: The court recognized that the mining ban rendered useless the mining company’s only property interest in the land. In this 1920 opinion by Justice Holmes, the Court witnessed one of the rare occasions when Justice Brandeis and Justice Holmes took opposite sides. Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922).

Does the regulation impose a dispoportionate burden?
"While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

Real Property
Where a regulation deprives all economically or productive use of someone’s land, a taking has occurred. A mere diminution in property is not a taking. The Supreme Court in Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964) held that a regulation banning land development was not a taking because the land still had value.

Personal Property
Where a regulation deprives the owner of all economic and personal use of the property, there is a taking. The Supreme Court held in Andrus v. Allard, 444 U.S. 51 (1979) that a ban on the sale of eagle feathers was not a taking because the owner could use the feathers for other purposes.

Right of possession
If the government deprives the property owner of the actual "right of possession," then a taking has occurred and compensation must be made. The Court held that when the government authorized "permanent physical occupation" of private property, just compensation was required. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). For example, in Loretto, the Court found there had been a "permanent physical occupation" of private property when a municipal ordinance allowed a cable TV company to install cable in privately owned rental buildings.

A Taking
According to the facts you have plugged into this flow chart, a taking has occurred. Now, you must determine what can be done to make the property owner whole. (See the next prong, "just" compensation.")

Right to select users
In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Supreme Court upheld that California Supreme Court’s ruling that owners of private shopping centers may not exclude persons who with to engage in nondisruptive speech and petitioning activities. So, although the Court eliminated part of the property owners right to select users of their property, the Court held it was not a taking because the owners could not demonstrate that an unchecked right to exclude others was a basic part of the economic value of the shopping center.

Has the state provided "just" compensation (fair value)?
The owner is entitled to the reasonable value/fair market value of the property at the time of the taking. The test is measured from the owner’s perspective, not the takers--thus the loss to the owner, not the gain tot he taker. Due process guarantees notice and hearing (either administrative or judicial) on the amount of compensation, but the hearing can occur after the taking.

Is the burden "reasonable" in light of the public interest?

Not a Taking: The Court held the burden to be "reasonable" in the following cases:
1) The Court upheld a Virginia law ordering the destruction of certain red cedar trees that were diseased and threatened the state’s apple orchards, even though the tree owners were not compensated. Miller v. Schoene, 276 U.S. 272 (1928).

2) Armies were allowed to destroy property without compensating the property owners. The "public interest" involved was "safety" because these armies were retreating from the Philippines during World War II. The Court held that this circumstance rendered the destruction constitutional. U.S. v. Caltex, 344 U.S. 149 (1952).

3) In order to protect a neighborhood, the Court upheld a regulation forbidding further use of a profitable dumpsite. Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962).

4) The Court permitted the destruction of certain fish nets to protect the business of local fisheries. Lawton v. Steele, 152 U.S. 133 (1894).

Right to exclude
If it’s your property, shouldn’t you be able to exclude others from entering it?
What if the state forbids you from excluding a person you want to exclude?
Has the state "taken" anything from you?

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), Nollan wanted to expand his beachfront house and applied for a permit. The California Coastal Commission replied with a conditional approval: Nollan could expand but only if he grants an easement to the general public to use the beach in front of his house. The Supreme Court found that such a "condition" on a building permit constituted a taking for which Nollan must be compensated.

Does the law deny (all) economically viable use of the property?
Remember, although a taking exists if the government uses the property or allows the public to use it, if the owner can abate the invasion by using the property for other purposes, then there is no taking. In other words, the land owner must be required to submit to the physical invasion in order for a taking to occur.

Paradigm: permanent physical occupation by government or third parties
The Court held that when the government authorized "permanent physical occupation" of private property, just compensation was required. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). For example, in Loretto, the Court found there had been a "permanent physical occupation" of private property when a municipal ordinance allowed a cable TV company to install cable in privately owned rental buildings.

Did owner have a pre-existing right to use in the manner now foreclosed?

The Court found a taking had occurred in the following situations:
1) The noise from U.S. military airplanes made farming impossible. The farmers had a "pre-existing right to use the property [farm] in the manner now foreclosed [too noisy to farm]." U.S. v. Causby, 328 U.S. 256 (1946).

2) A Pennsylvania law banning subsurface coal mining: The court recognized that the mining ban rendered useless the mining company’s only property interest in the land. The coal company had a "pre-existing right to use the property [they had a contract] in the manner now foreclosed [the contract was rendered worthless by the Pennsylvania law]." Pennsylvania Coal Co. v. Mahon 260 U.S. 393 (1922).

End of Text Assist