Takings

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Takings by Mind Map: Takings

1. Eminent Domain

1.1. Defined:

1.1.1. Power of the government to force unwilling persons to sell property to them

1.1.1.1. 5th Amendment Takings Clause

1.1.1.1.1. "Nor shall private property be taken for public use w/o just compensation"

1.1.1.1.2. mandates reasonable compensation be paid for property taken. (CONDEMNATION or paying for taken poperty)

1.1.1.2. Types

1.1.1.2.1. Inverse condemnation

1.1.1.2.2. Conventional condemnation

1.1.1.2.3. Regulatory Taking

1.1.1.2.4. Exactions

1.2. Conventional Condemnation

1.2.1. Government and property owner agree on a prices such that the transaction resembeles a private sale and purchase. If $ is disagreed upon, government brings a condmenation suit

1.2.1.1. Must be for public use, such that a legitimate public use or purpose

1.2.1.1.1. Includes economic development and increasing tax revenue

1.2.1.2. Must be for just compenation

1.2.1.2.1. Property's fair market value

1.3. Inverse condemnation

1.3.1. Property is occupied or regulated in some way that the property is constructively taken.

1.3.1.1. Brought by the landowner.

1.3.1.1.1. Must have standing

1.3.1.1.2. Includes the prospective purchaser/owner

1.3.2. Land owner claims the government occupied or took property w/o compensation or condemnation proceedings

1.4. Categorical/Per Se Regulatory Takings

1.4.1. Physical Invasions (Loretto)

1.4.1.1. Inverse condemnation occurs when gov. physically occupies or invades private property OR Statute/regulation authorizes 3rd party to do so.

1.4.1.2. Government has no defense

1.4.1.2.1. If proven, then Landowner has a successful categorical takings claim

1.4.1.2.2. Good faith or public benefit is irrelevant.

1.4.2. Total Takings (Lucas Rule)

1.4.2.1. Government regulation prohibits all economically beneficial or productive use of private land constituting a total taking of the use value of the land

1.4.2.2. 2 exceptions

1.4.2.2.1. All laws and regulations that duplicate results under common law as to regulation of nuisances DOES NOT = a taking

1.4.2.2.2. When a regulation or restriction, even one eliminating all economically viable use inheres in the title itself, in the restriction's background principles or state laws place upon ownership

1.5. Regulatory Takings

1.5.1. When a regulation goes to far, it consitutes a taking

1.5.1.1. 3 factors (Penn Central Balancing)

1.5.1.1.1. Character of the government's action

1.5.1.1.2. Effect regulation has upon remaining use and value of the regulated property

1.5.1.1.3. extent to which regulation has interfered w/ distinct investment-backed expectations

1.5.2. Conceptual severance: How much the surface is affected. Air mineral and surface can be treated separately once severed