Takings

MBEMax wiki article — paired with the Constitutional Law question set on mbemax.com.

One-line summary

The Fifth Amendment (applied to the states through the Fourteenth) forbids government from taking private property for public use without just compensation — and "taking" now covers physical appropriations, regulatory deprivations, and land-use exactions.

Mnemonic

P-P-J — Private property, Public use, Just compensation.

Plus three types: P-R-E — Physical, Regulatory, Exaction.

The rule (plain-language)

When the government physically takes or meaningfully deprives an owner of private property for a public purpose, the Takings Clause requires payment of just compensation. Regulatory restrictions can amount to takings when they go "too far" (Pennsylvania Coal Co. v. Mahon).

Physical takings

Any permanent physical occupation of private property by government (or authorized third party) is a per se taking, no matter how small (Loretto v. Teleprompter Manhattan CATV Corp., cable box installation case). Temporary physical invasions judged by several factors.

Regulatory takings — two-lane framework

Per se regulatory takings

• Permanent physical invasion authorized by regulation (Loretto) — per se taking.
• Total wipeout of all economically beneficial use (Lucas v. South Carolina Coastal Council) — per se taking unless the restricted use was never part of the owner's title (background nuisance / common-law principles).

Penn Central balancing (Partial regulatory takings)

Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Factors:

1. Economic impact on the owner.
2. Investment-backed expectations.
3. Character of government action (public program imposing burdens widely vs. targeted / physical).

No single factor controls; it's ad hoc.

Exactions (land-use conditions)

Two-step test for permit conditions:

• Essential nexus (Nollan v. California Coastal Commission, 483 U.S. 825 (1987)) — condition must substantially advance the same interest the restriction would have served.
• Rough proportionality (Dolan v. City of Tigard, 512 U.S. 374 (1994)) — individualized assessment; condition must be roughly proportional in nature and extent to impact of proposed use.
• Monetary exactions (Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013)) — Nollan/Dolan applies even when government demands money rather than property.

Public use

Interpreted broadly as "public purpose." Kelo v. City of New London, 545 U.S. 469 (2005) — economic-development taking upheld; significant political backlash + state-level reforms restricting. Blight, preservation, economic development, common-carrier uses all qualify.

Just compensation

• Fair market value at the time of taking.
• Does not include consequential damages beyond market value (relocation costs, goodwill — statutory only).
• Interest from date of taking until payment.

Inverse condemnation

When government takes without formal proceedings, owner sues for just compensation in a reverse direction.

NCBE loves to test

• Physical vs. regulatory. Permanent physical invasion = per se taking. Regulatory needs balancing or total-wipeout.
• Denominator problem. Murr v. Wisconsin (582 U.S. 383 (2017)) — what "the property" is matters. Whole parcel vs. isolated portion affects wipeout analysis.
• Temporary takings. First English Evangelical Lutheran Church — temporary regulatory takings still require compensation.
• Exactions nexus + proportionality. Nollan/Dolan/Koontz applies to administrative permit conditions; legislative enactments of general applicability less likely.
• Public use breadth. Kelo — economic development qualifies at federal level; many states enacted statutory limits post-Kelo.
• Not a taking. Generally: routine taxation, regulation of common-law nuisances, background principles of property law restrictions, zoning unless wipeout, denial of development permit that nonetheless leaves meaningful economic use.
• Just compensation. Fair market value, not owner's subjective value or lost profits beyond market.

Fast hypos

Hypo 1. City requires a beachfront homeowner to grant a public easement across lot as condition of building permit. Nollan — no essential nexus between easement and impact of building permit; taking without compensation.

Hypo 2. State environmental law bans development on oceanfront parcel bought before law. Parcel now has zero economic use. Lucas — total wipeout, per se taking unless restriction was implicit in title via background principles.

Hypo 3. City designates private building as historic landmark, preventing construction of planned tower. Building retains economic value as operating terminal. Penn Central balancing — historic-preservation program generally valid; no taking (Penn Central* facts).*

Hypo 4. Airline authorized to fly low over farm, killing livestock. Physical taking via airspace invasion (Causby).

Hypo 5. City asks developer to pay $50,000 toward city's roadway improvements as condition of subdivision approval. Koontz — Nollan/Dolan applies to monetary exactions; must pass nexus + proportionality.

Case anchors

• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) — cable box as per se taking.
• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) — total wipeout.
• Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) — regulatory balancing.
• Nollan v. California Coastal Commission, 483 U.S. 825 (1987) — exaction nexus.
• Dolan v. City of Tigard, 512 U.S. 374 (1994) — rough proportionality.
• Kelo v. City of New London, 545 U.S. 469 (2005) — public use / economic development.
• Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013) — monetary exactions.
• Murr v. Wisconsin, 582 U.S. 383 (2017) — denominator problem.
• Horne v. Department of Agriculture, 576 U.S. 350 (2015) — raisin reserve program as physical taking.
• Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) — union-access regulation as per se taking.

See also

• Commerce Clause
• Equal Protection
• First Amendment — Speech
• Freedom of Speech

Sources

U.S. Const. amend. V, XIV; Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Kelo v. City of New London, 545 U.S. 469 (2005); Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013); Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021).