Eminent Domain – Flashcards

The power of the government to force transfers of property from owners to itself --where the gov't intends to take the property

Where the gov't is intending to regulate & property owner initiates lawsuit claiming the gov't action amount to a "taking"

No person shall be deprived of property, without due process of law; nor shall private property be taken for public use without just compensation -Just COmpensation -Public Use

1. The activity in question has to be the action of the gov't 2. A private property must be taken 3. The gov't must give notice of what it intends to do first and the person must be given the opportunity to be heard. 4. The gov't must pay just compensation 5. The taking must be for public use/purpose

Benefit the Public -Legislature determines whats public and courts decide if they will uphold picks -health, safety, and welfare (Berman, Midkiff)

O'Connor: "Under the banner of economic development, all private property is now vulnerable to be taken and transferred to another private owner, so long as it might be upgraded in the process"

The measure of just compensation is "fair market value" of property, measured based upon the property's highest and best use

What a willing buyer would pay in cash to a willing seller at the time of taking.

Have to pay the diminished value of the remainder of the loss of the land