Takings, exactions, and property rights

Learning objectives

• Explain the Takings Clause, property as a bundle of rights, and the difference between eminent domain and regulatory takings.
• Trace the "public use" cases from Berman to Kelo.
• Distinguish the per se takings rules (Loretto, Lucas, Cedar Point) from the Penn Central balancing test.
• Apply the Nollan/Dolan nexus and proportionality tests to an exaction, including after Koontz and Sheetz.
• Recognize the procedural cases on temporary takings, moratoria, the "parcel as a whole," and access to federal court.

Key concepts

The Takings Clause

The Fifth Amendment ends: "nor shall private property be taken for public use, without just compensation." Through the Fourteenth Amendment it applies to state and local governments. The clause does two things: it permits government to take property (eminent domain), and it requires just compensation, usually fair market value, when it does.

A property owner who believes a regulation has effectively taken their property, without any formal condemnation, can sue for compensation. This is called inverse condemnation.

What counts as "property"? Lawyers describe ownership as a bundle of rights: the rights to possess it, use and enjoy it, exclude others from it, and transfer it (sell, lease, give, or leave it to heirs). Almost every land use rule trims a stick or two, usually the right to use, and the owner keeps the rest of the bundle; that's why most regulations aren't takings. Eminent domain takes the whole bundle. And the Court treats the right to exclude as one of the most essential sticks, which is why a rule that permanently occupies part of the land, or gives others a right to come onto it, is usually a taking automatically, as you'll see below.

6 more sections follow in the full lesson.