Landowner Rights - Government "Takings" law

Land Use Lawyer Austin Texas

Dec 10, 2012 — by Jeff Mundy
Tags: Land Use


The Takings Clause is "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."  And "[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner." These guides are fundamental in our Takings Clause jurisprudence. We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.

True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. 

...the Court held that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution."

 ... the Court recognized that seasonally recurring flooding could constitute a taking... the Government's construction of a lock and dam, which subjected the plaintiff's land to "intermittent but inevitably recurring overflows." ... The Court held that the regularly recurring flooding gave rise to a takings claim no less valid than the claim of an owner whose land was continuously kept under water....

Furthermore, our decisions confirm that takings temporary in duration can be compensable. This principle was solidly established in the World War II era, when "[c]ondemnation for indefinite periods of occupancy [took hold as] a practical response to the uncertainties of the Government's needs in wartime."... In support of the war effort, the Government took temporary possession of many properties. These exercises of government authority, the Court recognized, qualified as compensable temporary takings.. Notably in relation to the question before us, the takings claims approved in these cases were not confined to instances in which the Government took outright physical possession of the property involved. A temporary takings claim could be maintained as well when government action occurring outside the property gave rise to "a direct and immediate interference with the enjoyment and use of the land."... (frequent overflights from a nearby airport resulted in a taking, for the flights deprived the property owner of the customary use of his property as a chicken farm); [compare]... (flooding of claimant's land was a taking even though claimant successfully "reclaimed most of his land which the Government originally took by flooding").

Ever since, we have rejected the argument that govern ment action must be permanent to qualify as a taking. Once the government's actions have worked a taking of property, "no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective."... ("[W]e do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.").

We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. (temporary physical invasions should be assessed by case-specific factual inquiry); ... (duration of regulatory restriction is a factor for court to consider); ... ("temporary, unplanned occupation" of building by troops under exigent circumstances is not a taking).

Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. ... (no takings liability when damage caused by government action could not have been foreseen).... So, too, are the character of the land at issue and the owner's "reasonable investment-backed expectations" regarding the land's use.

Arkansas Game & Fish Commission v. United States (Supreme Court of the United States, 2012)

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