Takings, exactions, and property rights

Learning objectives

• Explain the Takings Clause 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.

6 more sections follow in the full lesson.

Key terms

• Eminent domain: The government's power to take private property for public use with just compensation.
• Just compensation: Payment for taken property, usually fair market value.
• Inverse condemnation: An owner's suit for compensation when government action effectively takes property without formal condemnation.
• Regulatory taking: A regulation so burdensome it is treated as a taking.
• Per se taking: A taking found automatically, without balancing.
• Investment-backed expectations: An owner's reasonable expectations when acquiring or investing in property.
• Denominator problem: The question of which property is "the parcel" when measuring a regulation's impact.
• Exaction: A condition requiring land, improvements, or money in exchange for development approval.
• Essential nexus: The required connection between an exaction and the project's impact.
• Rough proportionality: The required fit between the size of an exaction and the size of the impact.
• Moratorium: A temporary halt on certain development approvals while regulations are studied.