Takings

Contact: Michael Grynberg

 We now address a final method of resolving incompatible property uses. Eminent domain is the inherent power of the state to transfer title of private property into state hands. In the United States, when the government “takes” land in this manner, it must pay the owner “just compensation.” This is a constitutional requirement, as the Fifth Amendment provides, “nor shall private property be taken for public use, without just compensation.” This brief constitutional provision encompasses three distinct issues that we will deal with in this chapter (though not in this order): (1) has there been a “taking” of private property? (2) Is the taking for “public use”; and (3) has “just compensation” been provided? 

Precedent under the Takings Clause regulates the manner in which the state directly exercises its eminent domain power. As we will see, however, the clause also limits the ability of the state to regulate. Property owners sometimes challenge property regulations as being so onerous that it is as if the state has appropriated property and compensation is therefore due. Much of the Supreme Court’s takings caselaw concerns these so-called “regulatory takings.”