Takings

 “. . . .nor shall private property be taken for public use, without just compensation.”

                                                — U.S. Constitution, Amendment V

Private property shall not be taken or damaged for public use without just compensation.

                                                     — Utah Constitution, Article I, § 22

Both the Utah Constitution and the Federal Bill of Rights have a Takings Clause to protect the rights of private property owners. These constitutional protections do not prohibit government agencies from acquiring private property, but they require that just compensation be paid to the owners whose property is taken. 

NOTE:  This summary is very simplified, and is provided for informational purposes.  Any questions on this topic should be directed to The Office of the Property Rights Ombudsman.

What Constitutes a Taking?

 A “Taking” is any substantial interference with private property by a government agency which destroys or materially lessens its value, or by which the owner’s right to its use and enjoyment is in any substantial degree abridged or destroyed.   The most fundamental type of taking occurs when a government agency acquires property directly from the owner.

What Types of Property May be Taken?

Condemning agencies may acquire land and other types of property interests.  The agencies may purchase property by negotiating a sale price with thety owner.  In addition, government bodies also have the authority to exercise Eminent Domain, or the power to compel transfer of ownership.   In some circumstances, private persons or entities may also exercise eminent domain.

What is a Regulatory Taking?

A Regulatory Taking (or, “inverse condemnation”) occurs when regulation  extensively interferes with an owner’s use and enjoyment of property.  Government entities may enact laws which restrict or even prohibit uses on private property in order to promote the public welfare.  Although these regulations significantly impact the utility and value of property, they generally do not require compensation, unless the interference is so extensive that the government has effectively taken possession of the property.

Claims of regulatory takings are considered on a case-by-case basis.  A few rules have developed to help determine when a regulatory taking has occurred.

Permanent Physical OccupationA regulation which requires installation of something permanently on the property, no matter how small, constitutes a taking.   A property owner would be entitled to compensation based on the extent of the occupation.

Loss of All Economic Value:  A taking occurs if government regulation restricts the use of property to the point that it has little or no economic value.  This may be difficult to prove, however, because land usually has some economic value, even if most uses are restricted.

Interference With Investment-Backed Interests:  Simple diminution in value does not constitute a taking, but government regulation which is effectively the equivalent of government use or occupation may be considered a taking.  The Takings Clause is intended to bar government agencies from forcing some people to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Development Exactions:  Exactions are required contributions imposed by a government entity as conditions of approval for development.  An exaction  permissible if there is an essential link between the exaction and a legitimate government interest, and if it is roughly proportional  to the impact generated by the development.

What Constitutes “Damaging” Under the Utah Constitution?

“Damaging” means a physical interference with land as a result of a government facility or activity.  A property owner is entitled to compensation when a government activity damages property on a permanent, continuous, or recurring basis.  The damage must be a definite physical injury detectable by the senses with a perceptible effect on the property’s market value.  It must also be special to the property, and not an injury suffered by the public in general.

The damage must be caused by a government activity or facility that causes interference with private property, and cannot be due to natural conditions.  Damages arising from emergency or temporary activities (including construction) do not require compensation.

Although the Federal Constitution does not specifically include “damaging” as a taking, federal courts have concluded compensation is owed when a government activity permanently damages private property, because such damage is essentially a permanent occupation of the property.

What Constitutes a Public Use?

Property may be taken “for public use,” which is fairly broadly defined as any use that may benefit the public.  The Utah Legislature has identified several uses for which private property may be acquired using eminent domain.  See Utah Code § 78B-6-501.  These uses may include private economic development, and in some circumstances, eminent domain authority may be exercised by private entities or persons.  Urban Development Agencies may also use eminent domain to take private property for economic redevelopment projects. (See Utah Code, Chapter 17C-2, “Urban Renewal”).

How Can the Ombudsman Help?

The Office of the Property Rights Ombudsman was created to help property owners whose property is being taken. The Office can help citizens understand the eminent domain process, their rights to just compensation, and help ensure that they are being treated fairly.  The Ombudsman may also help the property owner and the condeming agency reach a settlement through mediation or arbitration.

Cases on Takings

A few appellate cases which discuss takings issues are listed in this link.  

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