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.
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A “taking” can manifest itself in several forms:
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Eminent Domain (or Condemnation): This occurs when, using governmental power, private property is acquired for a public use directly from the owner. When this occurs, just compensation is owed and should be paid. See Eminent Domain for more information.
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Permanent Physical Occupation (or Inverse Condemnation): This occurs when a government agency occupies private property either temporarily or permanently, without providing compensation. It is sometimes called “inverse condemnation” because it is the opposite of condemnation. Rather than purchasing the property and then occupying it, the government entity occupies the property without purchase. A property owner would be entitled to compensation based on the extent of the occupation.
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Regulatory Taking: This occurs where government does not necessarily physically occupy the property, but instead adopts ordinances and regulations that restrict the use of property to the point of depriving the property of some or all rights.
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Development Exactions: “Exactions” are required contributions imposed by a government entity as conditions of approval for development. An exaction is 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. See Exactions for more information.

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 the owner.  In addition, government entities have 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 occurs when a regulation extensively interferes with an owner’s use and enjoyment of property.  Compensation should be paid when the interference is so extensive that the government has effectively taken possession of the property.
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Claims of regulatory takings are considered on a case-by-case basis.  Regulatory takings include:
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Loss of All Economic Value: 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.
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Interference With Investment-Backed Interests:  Although a simple loss of value does not constitute a taking, government regulation which significantly interferes with investment backed interests without significantly advancing a legitimate government interest can amount to a taking.

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.
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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.
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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.
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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 a “public use,” as long as compensation is paid.  The Utah Legislature has identified several uses for which private property may be acquired using eminent domain.  See § 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  Title 17C, Chapter 2, Part 6, “Urban Renewal”).
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In addition, § 73-1-6 provides that any person may obtain a right-of-way across private property to convey or store water for domestic, culinary, irrigation, or industrial purposes. The property owner must be paid fair compensation for the right-of-way. Even individuals may exercise this right, however, it is limited to water-related improvements.

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 condemning agency reach a settlement through mediation or arbitration. If a property owner believes that a condemning agency is using or occupying land without permission or without paying compensation, the Ombudsman may review the matter and issue an Advisory Opinion addressing the use or occupation.