Property 9/8

The Takings Clause

Part of the 5th amendment; Private property shall not be taken for public use without just compensation.

Miller v. Schoene

Facts: After Virginia's state entomologist ordered Miller to cut down his ornamental red cedar trees without compensation to prevent a plant disease from spreading to nearby commercially valuable apple orchards, Miller sued to challenge the order as an unconstitutional regulatory taking.

Rule: There is no taking when the government destroys one type of property to protect another type of property that the government has identified as having greater value to the public. (and thus no compensation owed!)

Pennsylvania Coal Co. v. Mahon

Facts: After a homeowner sued a coal company to prevent mining beneath his house under a Pennsylvania statute that banned mining that caused surface subsidence, the coal company challenged the statute as an unconstitutional regulatory taking that destroyed their contractually reserved subsurface mining rights.

Rule: The Supreme Court ruled that while property rights may be regulated, a regulation that goes "too far" in diminishing the property's economic value constitutes a taking under the Fifth Amendment and requires just compensation.

Penn Central v. New York

Facts: After New York City's Landmark Preservation Commission rejected Penn Central's multi-million dollar plans to construct a 55-story office tower above Grand Central Terminal, the railroad company sued the city, claiming the historic preservation law constituted an unconstitutional regulatory taking.

Rule: The Supreme Court established a three-factor ad hoc balancing test to determine a regulatory taking, requiring courts to evaluate the economic impact of the regulation, its interference with distinct investment-backed expectations, and the character of the governmental action.

Lucas v. South Carolina Coastal Council

Facts: After David Lucas purchased two residential beachfront lots in South Carolina with the intention of building single-family homes, the state legislature passed a coastal management act that barred him from erecting any permanent habitable structures, prompting Lucas to sue the state for an unconstitutional regulatory taking. [1]

Rule: The Supreme Court ruled that a regulation that deprives a landowner of all economically beneficial or productive use of their land constitutes a "per se" total taking under the Fifth Amendment, requiring just compensation unless the prohibited use violates background principles of state property and nuisance law.

Kelo v. City of New London

Facts: After the city of New London used its power of eminent domain to condemn several private homes, including that of Susette Kelo, to clear land for a comprehensive economic revitalization plan led by a private developer, the homeowners sued, claiming the seizure violated the Fifth Amendment's "public use" restriction.

Rule: The Supreme Court ruled that a municipality's taking of private property for the purpose of economic development qualifies as a "public use" under the Fifth Amendment's Takings Clause, even if the land is ultimately transferred to a private developer, provided the taking is part of a carefully considered integrated development plan.

Example of NOT a per se taking

A regulation that requires a landlord to install, at his own cost, a carbon dioxide detector on his rental property.

Per Se Taking

an automatic government violation of the Fifth Amendment's Takings Clause that requires just compensation without evaluating the public benefit or the severity of the economic impact.

Unlike regular regulatory takings, courts bypass the Penn Central balancing test entirely. A per se taking is triggered by either of two absolute bright-line rules:

• Permanent Physical Occupation (Loretto): Any permanent, physical invasion of private property authorized by the government—no matter how minute the size or public the benefit (e.g., a mandatory cable wire).

• Total Economic Wipeout (Lucas): A regulation that completely denies a property owner all economically beneficial or productive use of their land, unless the restriction was already forbidden by background principles of state nuisance or property law.

Key Rule: If either trigger is met, government liability is automatic.

Moratoriums (temporary) are not per se because they are temporary.

3 Limitations on Takings (5th and 14th Amendments)

1. The person deprived must be afforded due process of law (government must have legitimte purpose for tking the property nd tht the mens used be rtionlly relted to the purpose for which it is tken.

2. The property must be taken for public use

3. Just compensation must be paid (generlly mens mrket vlue- the mount willing buyer would py nd the mount willing seller would ccept for the property tken t the time the govrnment tkes it).