Takings 101 — Introduction

The Fifth Amendment of the U.S. Constitution states “No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The two parts of the Fifth Amendment are referred to as the “due process clause” and the “takings clause.”

  • Due Process Clause: A land use regulation that does not substantially advance a legitimate public purpose will violate the due process clause.
  • Takings Clause: Generally, government is permitted to take property as long as it is for a public use and just compensation is provided to the property owner. The only time a taking will be considered unconstitutional is if the taking is not for a public use (regardless of how much compensation is provided), or if the compensation provided is not adequate.

There are two general types of takings claims.

  • Physical Taking: When the Government obtains title to or physically invades private property without adequately compensating the owner.
  • Regulatory Taking: When a government regulation burdens private property so greatly that its effect is the same as a direct appropriation or physical invasion. In Pennsylvania Coal Co. v. Mahon, the Supreme Court recognized that while government can regulate property to a certain extent, if the regulation goes “too far,” it will constitute a taking.

Also See

Regulatory Takings