Exactions and Takings Law Research Paper

Pages: 16 (5204 words)  ·  Bibliography Sources: 8  ·  File: .docx  ·  Level: Doctorate  ·  Topic: Government

Exactions and Taking Under United States Law

When an Exaction Becomes a Taking

The Public Use Element

A Comparison of Takings and Exactions


Land Use Restrictions by the Government

Funding of Public Projects through Exactions and Takings

The purpose of this review is to discuss the Exactions and Takings law as it pertains to property owners under the Fifth Amendment to the U.S. Constitution. An exaction is a regulation of private property by the government for a particular government purpose, but that does not constitute a Taking. Exactions have been permitted by the United States Supreme Court when where there is nexus to the regulation and the government purpose, and that regulation does not deny the owner use of her land.

Exactions are controversial area of the law especially if the use by the government involves what is considered private taxation of a public project. On the other hand, the Fifth Amendment to the U.S. Constitution protects the private property of U.S. citizens and residents from taking by the government without just compensation. The text of Fifth Amendment reads, "No person nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

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To this end, the Fifth Amendment protects citizens and residents of every state to enjoy their property rights freely without substantial governmental intrusion. Still, the Fifth Amendment does not prohibit the government from taking a person's property; the right conveyed by the Fifth Amendment is that if the government takes the property, it must justly compensate the owner for the Taking. What distinguishes a Taking from an exaction depends on many variables and is examined on a case by case basis by the Courts. The factors that the Courts have been most concerned with are the economic, use, and enjoyment rights of the owner.

II. When an Exaction Becomes a Taking

Research Paper on Exactions and Takings Law Assignment

The concept of when government regulation rises to the level of a taking has resulted in copious litigation over the years. The government may make use of private property so long as it compensates the private owner justly for the use. What constitutes a Taking is addressed in the early Supreme Court case of United States v. Causby, 328 U.S. (1946), when the Court found that the restrictions placed on the petitioner's land constituted an easement on the petitioner's land and interfered with his use and enjoyment of his property. Any use by the government must not burden the intended purpose for which the land exists. The government may be permitted to use a portion of the land, but as this use encroaches on the rights of the owner to enjoy his property the use becomes Taking without just compensation. If the government's use involves the use of the airspace surrounding the land, this is also subject to the Takings clause in that a person is entitled to free use of the space surrounding his land and that the government's flying of the plane below a certain altitude is an infringement on the right of the landowner. This decision demonstrates that a taking of private land by the government does not require that the government actually physically enter onto the land or physically confiscate the land. Any use by the government that interferes with the owner's use and enjoyment of the land is sufficient prove a Taking that is entitled to just compensation.

Courts have also ruled that intangible property can be the subject of a Taking and entitled to just compensation. In the case of Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), the Court ruled that the appellee's interest in its health, safety, and environmental data represented a cognizable property right as a trade secret under Missouri law, and that property right is protected by the Taking Clause of the Fifth Amendment, and that the data disclosure provisions of the FIFRA

effected a "taking" of property without just compensation. When the regulation by the government, its acquisition, or destruction of the property goes beyond proper what is expected use by the government this will effect in a Taking. What is also considered to amount to a Taking is when the action interferes with reasonable investment-backed expectations such that economic benefit that owner is expected to gain is obstructed. In a case not involving investments, the standard would be measured by whether the government's regulations have exceeded the expectation of their police power and obstructed reasonable use of the property.

Based on these two landmark cases on the Takings Clause, Courts have clearly granted broad protection to the rights of property owners regardless of whether the property is real property or intangible property. The Court discourages governmental interference that goes beyond what is reasonably expected, and especially if the action of the government interferes with the economic right and benefit of the owner through his property.

III. The Public Use Element

Traditionally, courts have construed the "public use" element of the Takings clause liberally. The standard of review that has been applied by the courts in Takings cases is the "Rational Basis" standard.

This principle of the rational basis standard of review regarding the Taking Clause was illustrated in the case of Kelo v. City of New London, 545 U.S. 469 (2005). This case examines the important principles in Exactions and Takings law of public use and public purpose. An important concept is that if an Exaction is for a public purpose, the government will be permitted to exercise its eminent domain powers. It is the government's burden to demonstrate that the project will benefit the public. Ways that this standard has been met have been through demonstrating that the property will be used for roads, highways, schools, and hospitals. In the Kelo case, the government satisfied this standard in a slightly different way -- by demonstrating that the project had the cumulative effect of benefiting the public. In other words, that the collective benefit of an economic redevelopment project met the standard of public purpose.

A distinction does exist between what is public use and whether the land is used for a public purpose. A public purpose is akin to an economic development program, such as when a government regulation seeks to give the public a clear view of the beach, or a regulation that permit's the government to destroy infectious trees that pose a threat to the safety of the community. In each of these scenarios, the regulation is akin to an Exaction and does not amount to a Taking because of the public purpose element.

Public use, on the other hand, is regulating property for the use of the public and not necessarily for a public purpose. It involves the government regulating the land to be used by the public. This scenario is akin to the scenario of private taxation for public use illustrated in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tagard, 512 U.S. 374 (1994), supra. The Court has rarely upheld this type of regulation unless the government demonstrates a legitimate purpose that does not deprive the owner of the value of her land.

With the Kelo decision, the Court expanded the definition of public purpose. A public purpose does not only mean something such as for the purpose of a highway or to build a government building, but the use of the government can be considered for the effect that it will have as a whole for the community. If this combined effect will benefit the entire community then a finding of a public purpose is likely. However, the Court in the Kelo case did address the two situations were the government would be prohibited from taking private land "for a public purpose." The first scenario is if the government seizes the private land to give it to another private citizen and the second scenario is where the government takes the land under the pretext of a public purpose then conveys it to another private citizen. Neither of these takings would satisfy the public purpose requirement.

IV. Taking v. Regulation

While the government must compensate the owner of the property for a Taking of property for public use, the government is not obliged to compensate the owner for a regulation or exaction of the property. This lies within the police powers of the state. The line between what a regulation is vs. what is a taking is sometimes not distinguishable. It is a question as to the degree of the government interference with the property and the extent as to which the owner is not permitted to enjoy or make use of the property. The general rule for what constitutes a Taking is that a Taking occurs when there is an actual appropriation or obstruction of a person's property or a permanent physical invasion by the government. Under the umbrella of this general rule, a taking can occur in a variety of circumstances.

The case of Loretto v.… [END OF PREVIEW] . . . READ MORE

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