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taking clause
the fifth amendment to the US constitution, applicable to the states via the Fourteenth Amendment, prohibits the government from
1 taking
2 private property
3 for public use
4 without just compensation
Here the government is taking a portion of owners private property for a purported public purpose or state interest
Physical Taking
when the government intrudes on owner's right to exclude by physically possessing, occupying, or mandating accommodation for another to posses or occupy owner's property.
a permanent physical invasion is a categorical taking. Loretto
Is the regulation prohibiting a common law nuisance?
if something is a nuisance, it's within the government's police power to enjoin or regulate the nuisance, without it becoming a taking, even if it diminishes the value of the property. Hadecheck
Police Power authorizes the government to regulate the use of land to protect the public health, morals, safety, and welfare of it's citizens.
Complete diminution in value?
If a regulation causes a complete diminution in value of land, then it's a taking, unless justified by stopping a common law nuisance, or noxious use. Lucas
Regulation decreases value without destroying all economic value?
If a regulation goes to far, it becomes a taking. Pennsylvania Coal
Holmes Majority - common denominator was the coal left in place to support the surface
Brandies Dissent - common denominator was the entire parcel owned by the coal company
If less than complete diminution in value of land, courts apply balancing test to determine if a taking has occurred. Penn Central
Brennan Factors
1. economic impact of the regulation on the claimant
2. extent to which the regulation has interfered with distinct investment backed expectation
3. character of the government action - physical invasion? or reasonable regulation designed to promote general welfare?
there is no expiration date on the takings clause. and a plaintiff could have used the rest of his parcel for other purposes. Palazzolo
a moratorium on building is not a per se taking under lucas or penn central. this case narrows lucas. Tahoe-Sierra
Development exactions
exactions shift the financial burden off accommodating new developments from local government to the developer
burden is on the government to prove
1. essential nexus
there must been a connection between the exaction and the intended state interest. to meet this test land use regulation must substantially advance a legitimate government interest. Nollan
2. rough proportionality
there must be a proportionality between the exaction and the projected impacts of the proposed development. This is an individualized determination that the required dedication is related both in nature/extent to the impact of the proposed development. Dolan
conclusion
if a taking has occurred then ask whether the taking of private property for public use was given just compensation