Takings Decisions of the U.S. Supreme Court: A Chronology Page: 4 of 22
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Takings Decisions of the U.S. Supreme
Court: A Chronology
Once in the constitutional wings, the Takings Clause of the Fifth Amendment
today stands center stage. No debate on the proper balance between private property
rights and conflicting societal needs is complete without it.
The reasons for the Takings Clause's ascendancy are clear. Starting with the
advent of comprehensive zoning in the early twentieth century, federal, state, and local
regulation of private land use has become pervasive. Beyond comprehensive zoning,
recent decades have seen explosive growth in the use of historic preservation
restrictions, open-space zoning, dedication and exaction conditions on building
permits, nature preserves, wildlife habitat preservation, wetlands and coastal zone
controls, and so on. In the Supreme Court, the appointment of several conservative
justices since the 1970s has prompted a new scrutiny of government conduct vis-a-vis
the private property owner.
As a result, the Court since the late Seventies has turned its attention toward the
takings issue with vigor, clarifying some issues and raising new ones. Through the
1980s and 1990s, property owner plaintiffs scored several major victories; by and
large, the substantive doctrine of takings shifted to the right. Recent decisions,
however, have moved the analytical framework in a more government-friendly
direction, though it is too soon to discern whether this signals a lasting shift.
By way of background, the Fifth Amendment of the U.S. Constitution states:
"nor shall private property be taken for public use, without just compensation." Until
the late nineteenth century, this clause was invoked only for condemnation: the
formal exercise by government of its eminent-domain power to take property
coercively, upon payment of just compensation. In such condemnation suits, there is
no issue as to whether the property is "taken" in the Fifth Amendment sense; the
government concedes as much by filing the action. The only question, typically, is
how much compensation must be paid.
Beginning in the late nineteenth century, the Supreme Court gave its imprimatur
to a very different use of the Takings Clause. When the sovereign appropriated or
caused a physical invasion of property, as when a government dam flooded private
land, the Court found that the property had been taken just as surely as if the sovereign
had formally condemned. Therefore, it said, the property owner should be allowed to
vindicate his constitutional right to compensation in a suit against the government.
In contrast with condemnation actions, then, such takings actions have the property
owner suing government rather than vice-versa, hence the synonym "inverse
condemnation actions." The key issue in takings actions is usually whether, given
all the circumstances, the impact of the government action on a particular property
amounts to a taking in the constitutional sense.
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Takings Decisions of the U.S. Supreme Court: A Chronology, report, October 19, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc817066/m1/4/: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.