THE TAKING ISSUE: CONSTITUTIONAL LIMITS ON LAND-USE CONTROL AND ENVIRONMENTAL REGULATION

Twelve simple words, "[N]or shall private property be taken for public use, without just compensation". Undoubtedly, this Takings Clause, at the end of the Fifth Amendment of the Bill of Rights, has in the past two decades become the central constitutional restriction on the power of government to acquire or restrict private property rights. Almost all state constitutions have similar edicts. The Takings Clause plays out in two procedurally distinct contexts, opposite sides of the same coin. One, the original historically, is called a condemnation proceeding (though not related to condemning buildings for health or safety purposes). Here, the government concedes it is taking the property, formally invoking its sovereign power of eminent domain as the plaintiff in a lawsuit against the property or property owner, such as for the construction of a highway or installation of a transmission line. Two, Takings actions are the mirror image of condemnation but are of more recent vintage. In this instance, the government encroaches upon a property but emphatically denies any taking. In this situation, it falls upon the property owner to file against the government a "taking" or inverse condemnation action seeking compensation for an unacknowledged exercise of eminent domain. A "taking" trial has not one, but two, key issues to resolve: was there a "taking" and if so, how much compensation is due? Taking actions are far more likely than condemnation actions to be lightning rods. They have a David (property owner) versus Goliath (government) aspect to them.

• Availability:
  • Find a library where document is available. Order URL: http://worldcat.org/isbn/1559633808
• Corporate Authors:

  Island Press

  1718 Connecticut Avenue, NW, Suite 300
  Washington, DC  United States  20009-1148
• Authors:
  • Meltz, R
  • Merriam, D H
  • Frank, R M
• Publication Date: 1999

Language

• English

Media Info

• Features: Appendices;
• Pagination: 595 p.

Subject/Index Terms

• TRT Terms: Eminent domain; Environmental control; Federal government; Jurisprudence and judicial processes; Land use; Legal rights; Ownership; Policy, legislation and regulation; Property acquisition; Property condemnation; Regional planning; Regulations; Taking (Property); Zoning
• Subject Areas: Administration and Management; Construction; Highways; Law; I10: Economics and Administration;

Filing Info

• Accession Number: 00792153
• Record Type: Publication
• ISBN: 1559633808
• Files: TRIS
• Created Date: May 8 2000 12:00AM