The Fifth Amendment and Takings of Private Property

Introduction The Takings Clause of the Fifth Amendment is one of the few provisions of the Bill of Rights that has been given a broader interpretation under the Burger and Rehnquist courts than under the Warren Court. It is a clause near and dear to the heart of free market conservatives.

Only certain types of takings cases present serious interpretive questions. It is clear that when the government physically seizes property (as for a highway or a park, for example) that it will have to pay just compensation. It is also clear that serious, sustained physical invasions of property (as in the case of low overflying aircraft, for example) require payment of compensation equal to the difference between the market value before and after the invasion. The difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant dimunition of property value.

The Court has had a difficult time articulating a test to determine when a regulation becomes a taking. It has said there is "no set formula" and that courts "must look to the particular circumstances of the case." The Court has identified some relevant factors to consider: the economic impact of the regulation, the degree to which the regulation interferes with investor-backed expectations, and the character of the government action. Still, as our cases suggest, there is a lot of room for argument as to how these various factors should be weighed.

Cases

Penn Central v. New York City (1978) Dolan v. City of Tigard (1994) Lucas v. South Carolina Coastal Com'n. (1992) Tahoe Preservation Council v Tahoe Regional Planning Agency (2002) Kelo v City of New London (2005)

David Lucas on his South Carolina property that the Supreme Court concluded was "taken."

Supreme Court Determines What is "a Public Use"

In June 2005, the Supreme Court decided an important case involving the meaning of "public use" in the Fifth Amendment. In Kelo v City of New London, the Court, voting 5 to 4, upheld a city plan to condemn homes in a 90-acre blue-collar residential neighborhood. New London plans to give the land to a developer for $1, with a 99-year lease, to build a waterfront hotel, office space, and higher-end housing. Justice Stevens, writing for the Court, found this donation of property to a developer to be a "public use." Stevens said that the Court's jurisprudence gave government "broad latitude" to determine what uses might be "public." In a concurring opinion, Justice Kennedy indicated that the Court still stood willing to review on constitutional grounds takings that are arguably simply the city favoring one private owner over another, rather than takings based on a good faith analysis of the public interest. Angry property rights advocates reacted to the decision by suggesting that local governments consider condemning the homes of justices in the majority and turning them over to private developers for construction of B & Bs.

Questions

After the State of Florida spent millions widening beaches to protect against shoreline erosion, a group of oceanfront owners in Destin sued, arguing that the new 75-foot strip of sand should be theirs, and not the government. The landowners argued that the Florida courts had redefined their land boundaries, which used to extend all the way to the tide line, in such a way as to constitute a taking of their property. The Court, 8 to 0 (Justice Stevens not participating because he owned a Florida oceanfront condo), held that the state's actions were not a taking requiring compensation to the owners, noting that the beach erosion project could be seen as an attempt to preserve property values. The Court split 4 to 4 on the question of whether courts could ever be financially liable for a taking. (Stop the Beach Renourishment vs Florida Dep't of Environmental Protection (2010).)

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The Fifth Amendment and Takings of Private Property