The Importance Of Takings Clause

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Takings Clause US Constitution The Fifth Amendment of the United States Constitution includes a provision known as the Takings Clause, which states that "private property [shall not] be taken for public use, without just compensation." While the Fifth Amendment by itself only applies to actions by the federal government, the Fourteenth Amendment extends the Takings Clause to actions by state and local government as well. The Takings Clause imposes two requirements on government in order to exercise this power. First, the property to be acquired must be "for public use," and second, the government must pay "just compensation" to the owner of the property that is taken. The Supreme Court has long construed the term "public use" to include…show more content…
In one decision, the Court held that regulations that deprive a person of all ability to develop or utilize his or her property for any economic purposes goes too far and requires just compensation. Another line of Supreme Court cases establishes that if the government effects a permanent physical invasion of the person's property, for example by requiring the owner to allow public access to the property, this constitutes a taking. Absent one of these two circumstances, however, the Court has said that the question whether a regulation goes too far is a contextual, ad hoc determination that involves the weighing of a number of factors. Foremost among these factors is the magnitude of the regulation's economic impact and the degree to which it interferes with legitimate property interests. A particularly important issue that has been raised is whether a person who acquires property after the institution of the regulatory regime should have any claim whatsoever. Some argue that such a landowner should not, having acquired the property knowing the restrictions to which it was subject and presumably at a price that reflected those restrictions. Others argue that to eliminate any such claim would enable government effectively to extinguish substantial value of the property without any recourse for the owner. The Supreme Court has concluded that the timing of the acquisition…show more content…
For example, a city might condition a permit for development of a property into a subdivision of homes upon the developer setting aside certain areas for public park area, constructing streets to city standards and then dedicating the streets to the city, as well as paying an exaction designed to offset the projected city infrastructure costs associated with the new development, such as sewage treatment or school construction. The Supreme Court has said that such regulatory conditions and exactions do not constitute a taking if they have an essential nexus to a legitimate government interest and they bear a rough proportionality to the impacts caused by the development. For example, increasing the size of a commercial establishment and the construction of a large parking lot may cause a substantial increase in impervious surfaces and could justify a requirement that the property owner leave certain property as undeveloped flood

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