![]() ![]() See Public Use Requirement above - Courts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. 255 (1980), the Supreme Court held that it there is not a requirement for government compensation where such regulations "substantially advance legitimate governmental interests," and as long as the regulations do not prevent a property owner from making “economically viable use of his land.” Public Purpose Many regulatory takings disputes arise in the context of land use regulation. 745 (1947), the Supreme Court held that even if the government does not physically seize private property, the action is still a taking "when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.” Land Use Regulation Instead, it extends to all kinds of tangible and intangible property, including but not limited to easements, personal property, contract rights, and trade secrets. Accordingly, the Fifth Amendment's compensation requirement is not limited to government seizures of real property. Many types of government action infringe on private property rights. In response to Kelo, many states have passed laws which have restricted governments' takings abilities (such as implementing a stricter definition of what constitutes a "public use," requiring heightened levels of scrutiny to justify an action categorized as a taking, etc). This caused significant controversy, and states were quick to act to quell concerns about this expansion of power. The Kelo decision significantly broadened the government's takings power. Further, the Kelo court determined that a governmental claim of eminent domain is justified if the seizure is rationally related to a conceivable public purpose. The Court considered the taking to be a public use because the community would enjoy the furthering of economic development. 469 (2005), the Supreme Court allowed a taking when the government used eminent domain to seize private property to facilitate a private development. Public Use RequirementĬourts broadly interpret the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. For more information on calculating just compensation, see this LII article. This all can make the valuations for fair market value challenging. The property may have some complex considerations such as leasing value that must be considered. In many circumstances, there may not be similar sales under current market conditions to compare with. Generally, one determines the fair market value by looking at the sales of similar property to that being taken. Depending on the size and unique nature of the land, calculating the market value of property can be quite complex. This means that any sentimental or other value held by the owner will not be considered in calculating compensation. Typically, a "just compensation" is determined by an appraisal of the property's fair market value. 458 US 419 (1982), the Supreme Court clarified that when the government engages in a taking and implements a permanent physical occupation of the property, it must provide the property owner with just compensation, even if the area is small and the government's use does not greatly affect the owner's economic interest. ![]() 367 (1875), the Supreme Court held that the government may seize property through the use of eminent domain, as long as it appropriates just compensation to the owner of the property. The Fifth Amendment of the United States Constitution mandates that if the government takes private property for public use, the government must provide "just compensation." In K ohl v. A taking may be the actual seizure of property by the government, or the taking may be in the form of a regulatory taking, which occurs when the government restricts a person’s use of their property to the point of it constituting a taking. The Fifth Amendment provides that the government may only exercise this power if they provide just compensation to the property owners. Eminent domain refers to the power of the government to take private property and convert it into public use, referred to as a taking.
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