Home Condemnation Land Use Other Issues About Us  

HOME > Other Issues > Takings

Takings

A "Taking" is where private property is so used or restricted that compensation is due to the property owner, but no compensation or inadequate compensation is offered.

Generally, a taking occurs when one property owner or a relatively few property owners are forced to bear a significant burden so that the public in general or a relatively large number of property owners can receive a benefit.

Private property protections are part of the Bill of Rights, guaranteed to each individual citizen as a safeguard against excessive government actions. They represent a basic principle of our democracy.

"(The takings clause) was 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" - Armstrong v. U.S. 34 US 40 (1960)

Basic Elements of a Taking:

  1. An Action, (but not a negligent, emergency or other exempt action)
  2. To Occupy, Damage, or Interfere With
  3. Protected Private Property
  4. By a Government Entity or a Private Entity Acting Under Government Authority
  5. For a Public Purpose
  6. Without the Payment of Just Compensation

Physical Takings:

  1. Physical Occupation of the property.   By the government or someone acting with government authority such as a utility or a contractor working for the government. This is always a taking if the occupation is permanent and advances a public purpose.
    Examples:
    • Placing a cable box on the outside of an apartment building. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
    • Allowing waters to occupy private property repeatedly or permanently. Colman v. Utah State Land Board, 795 P.2d 622 (1990), Pigs Gun Club v. Sanpete County 2002 UT 17.
    • Requiring the landowner to endure continual trespass or public access on private lands. Dolan v. Tigard, 512 U.S. 374 (1994)
  2. Physical “Damaging” by Government-Created Nuisance.   When some government activity or action rises to the level of an actionable nuisance. Usually involves some government activity on public property that is near to or adjoins the land that is claimed to suffer an unconstitutional burden. The issue in such cases is whether the government activity is so unreasonable as to constitute an actionable interference with the quiet enjoyment of property.
    Examples:
    • Airport corridors - noise and vibration. Katsos v. Salt Lake City Corp. 624 F.Supp. 100 (U.S. Dist. Ct. Utah, 1986)
    • Nuisances in general. See Logan City School District v. Croft, 13 Utah 2d 310, 373 P.2d 697 (1962). (Schoolyard noises not a factor in damages in eminent domain action.)
  3. Physical Interference with a Protected Property Right.   When a physical action interferes with one of the specific aspects of property ownership that has been listed as separately protected.
    Examples:
    • Right to air, light and view across a street, such as building an overpass in the street in front of residential lots. Utah State Road Comm. v. Miya. 526 P.2d 926 (1974).
    • Loss of functionality due to changes in curb cuts on a city street. Three D. Corp. v. Salt Lake City. 752 P.2d 1321 (UT Ct. App. 1988) Carpet Barn v. State of Utah 795 P.2d 1138 (UT Ct. App. 1990)
    • Right to reasonable access. Hampton v. State ex rel. Road Commission, 21 Utah 2d 342, 445 P.2d 708 (1968).
  4. Regulations that Interfere with a Vested Right.   Once a property owner has established the right to a particular use of land, the government may not revoke that right.
    Examples:
    • Nonconforming uses, which were legal when the regulations were passed but would be illegal under existing law also have protected status as vested rights if not abandoned or amortized under the terms of an amortization ordinance. See U.C.A. 10-9-103 for municipalities and 17-27-407 for counties. Cases considering the establishment and continuation of nonconforming uses include Rock Manor Trust v. State Rd. Comm'n 550 P.2d 205 (Utah 1976) (nonconforming use survives destruction of the building by fire), Caster v. West Valley City, 2001 UT App 220 (nonconforming use not abandoned if any of several alternative activities defined as part of that use are continued) and Hugoe Trucking v. Woods Cross, 1999 UT App 281 (since use was established before ordinance, it has vested and may continue).

Regulatory Takings:

  1. Regulations Which Impose Disproportionate Burdens.   An action may be unconstitutional if it is deemed unfair in an analysis of three factors: (1) the burden placed on the property owner, (2) the nature of the government action and benefit, and (3) the property owner’s investment-backed expectations.
    Examples:
    • Denial of right to build office tower over historic landmark not a taking, when weighing all factors involved in an ad hoc inquiry. Penn Central Transp. Co. v. City of New York, 98 S.Ct. 2646 (1978).
    • Where there was no deprivation of all economic value in wetlands case, the Court remanded for a takings analysis based on the “Penn Central Balancing Test”. See concurring opinion by Justice O’Conner regarding the Penn Central balancing test in Palazzolo v. State of Rhode Island 121 S.Ct. 2448 (2001). A thirty-two month development moratorium was not held to be a taking because, after balancing all factors involved, the delay involved was not unreasonable. The burden of this particular moratorium must be weighed in light of the significant community value represented by the purity of the waters of Lake Tahoe. Preservation of the quality of the lake would eventually enhance both property values and the public good. Adequate time must be taken to carefully plan for community development, even if a complete denial of all use is imposed for a finite and reasonable period. Tahoe Sierra Preservation Council v. Tahoe Regional Planning Authority. 122 S.Ct. 1465, (2002).
  2. Regulations that Interfere with a Protected Property Right.   When an ordinance or statute or other government action results in an unreasonable interference with a protected aspect of property ownership.
    Example:
    • Right to pass property on to heirs. Hodel v. Irving, 481 U.S. 704 (1987).

These guidelines are provided by the Office of the Property Rights Ombudsman in an effort to provide better understanding of constitutional private property protections and the land use regulation process. They are not meant to constitute legal advice. They simplify and broadly generalize complex issues of law. Questions should always be directed to your attorney for specific advice. Suggestions and comments are always welcome.