Legal Definitions - constitutional taking

A constitutional taking occurs when a government entity exercises its power to acquire private property for public use. This concept is rooted in the Fifth Amendment to the U.S. Constitution, specifically its "Takings Clause," which states that private property shall not "be taken for public use, without just compensation." This means that whenever the government takes private property, it must provide fair payment to the owner.

A constitutional taking can happen in several ways:

• Direct Taking (Eminent Domain): This is the most straightforward form, where the government physically acquires ownership of private land or property for a public project, such as building a road, school, or park.
• Regulatory Taking: This occurs when a government regulation is so restrictive that it effectively deprives a property owner of all economically beneficial use of their land, even though the owner retains legal title.
• Physical Invasion: This involves the government requiring a permanent physical occupation or invasion of private property, even if ownership isn't fully transferred.

Here are some examples illustrating a constitutional taking:

• Example 1 (Direct Taking for Infrastructure):

  A state department of transportation plans to widen a major highway to alleviate traffic congestion. To do this, they determine that a strip of land from several privately owned commercial properties along the existing road is necessary. The property owners do not wish to sell their land. The state initiates eminent domain proceedings to acquire these strips of land. This action constitutes a constitutional taking because the government is directly acquiring private property for a public use (highway expansion). The state is legally obligated to provide "just compensation" to each property owner, typically based on the fair market value of the taken portion of their land.

• Example 2 (Regulatory Taking of Development Rights):

  A coastal town, concerned about rising sea levels and erosion, passes a new ordinance that prohibits any new construction or significant renovation on beachfront properties located within 100 feet of the high tide line. A private landowner who purchased a vacant beachfront lot with the intention of building a family home finds that, due to the new regulation, they cannot build anything on their property, effectively rendering it unusable for its intended purpose. This could be considered a constitutional taking because the government's regulation has so severely restricted the use of the property that it has deprived the owner of nearly all economically viable use, even though the owner still holds the deed. The landowner might sue the town, arguing they are owed just compensation for the loss of their property's development value.

• Example 3 (Required Public Access Easement):

  A city council, aiming to boost tourism, passes a law requiring all owners of private lakefront properties to grant a permanent public easement along a 15-foot strip of their land adjacent to the water's edge. This easement would allow the public to walk freely along the lakefront. The city offers no compensation for this required access. This action would likely be challenged as a constitutional taking. By mandating a permanent physical occupation and public access across private property without compensation, the city is effectively taking a valuable property right (the right to exclude others) from the landowners. The property owners could argue that they are entitled to just compensation for the value of this permanent public easement.