Eminent Domain & Takings
The Takings Clause requires just compensation when the government takes private property for public use, encompassing both physical takings and regulatory takings that go 'too far.'
Overview
The Fifth Amendment's Takings Clause provides that private property shall not "be taken for public use, without just compensation." Through the Fourteenth Amendment, this applies to state and local governments. The doctrine addresses both direct physical appropriations and regulatory actions that effectively destroy property value.
Physical takings occur when the government directly appropriates or physically occupies private property. Per Loretto v. Teleprompter Manhattan, any permanent physical occupation authorized by the government is a per se taking requiring compensation, regardless of how minor.
Regulatory takings occur when government regulation restricts property use to such an extent that it effectively amounts to a taking. Pennsylvania Coal v. Mahon, written by Justice Holmes, established that "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."
The modern framework uses three approaches: (1) Per se takings — a regulation that causes a total economic wipeout is a taking per se (Lucas v. South Carolina Coastal Council). (2) Per se physical occupation — any permanent physical occupation is a taking (Loretto). (3) The Penn Central balancing test — for all other regulatory takings claims, courts weigh the economic impact on the owner, the extent of interference with reasonable investment-backed expectations, and the character of the government action.
Kelo v. City of New London controversially held that economic development qualifies as "public use" for eminent domain purposes, expanding the government's power to take property and transfer it to private developers for public benefit.
Key Takeaway
There are two types of takings: physical (per se taking if permanent) and regulatory (per se if total wipeout, otherwise Penn Central balancing test). Both require just compensation.
Exam Tip
Start by classifying the taking as physical or regulatory. For physical, apply Loretto's per se rule. For regulatory, check Lucas first (total wipeout?), then fall back to Penn Central's three-factor balancing test. Always discuss the public use requirement for eminent domain.
Landmark Cases (13)
Frequently Asked Questions
What is the Penn Central test for regulatory takings?
The Penn Central test weighs three factors: (1) the economic impact on the property owner, (2) the extent of interference with distinct investment-backed expectations, and (3) the character of the government action (physical invasion weighs toward a taking more than regulatory restriction).
When is a regulation a per se taking?
Under Lucas, a regulation that deprives the owner of all economically beneficial use is a per se taking (unless the restricted use was never permitted under background principles of property law). Under Loretto, any permanent physical occupation is a per se taking.
What counts as 'public use' for eminent domain?
After Kelo v. City of New London, 'public use' is interpreted broadly to include public purpose — the government can take property for economic development even if the property is transferred to a private party, as long as the taking serves a public purpose.
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