July 18th, 2006, Governor Ruth Ann Minner said:

From Christopher Duerksen and Richard Roddewig, Takings Law in Plain English (1994).

"TAKINGS LAW IN PLAIN ENGLISH, Christopher J. Duerksen, Richard J. Roddewig
HIGHLIGHTS
        As discussed in further detail in this publication, the courts have laid out a number of general principles that should be kept in mind by those wishing to understand the law of takings:

• No one has an absolute right to use his land in a way that may harm the public health or welfare, or that damages the quality of life of neighboring landowners, or of the community as a whole.
• Historical precedent and recent case law make clear that reasonable land use and environmental regulations will have little trouble withstanding constitutional scrutiny in the vast majority of cases.  Only in rare instances will such regulations be deemed so onerous as to effect a "taking" under the Fifth Amendment to the U.S. Constitution, which holds that private property shall not be taken for public use without just compensation.
• Courts have outlined several broad factors to be considered on a case-by-case basis in determining if a taking has occurred, including the economic impact of the regulation on the property owner; the public purpose for which the regulation was adopted; and the character of the government action.  Generally, a regulation will be upheld if it (1) furthers a valid public purpose; and (2) leaves a property owner with some viable economic use of the property.
• Property owners have a right to a reasonable return or use of their land, but the U. S. Constitution does not guarantee the most profitable use.
• Courts have upheld a wide variety of purposes as valid reasons for enacting environmental and land use regulations - including pollution prevention, resource protection, historic preservation, design controls, and scenic view protection.
• Communities can legitimately insist that development pay its own way.  Land dedications or mandatory exactions are valid, assuming that they are adopted to respond to the demands created by the project.
• Before a landowner or developer can bring a lawsuit to claim a taking, a development plan must be submitted for review and all administrative avenues of relief must be exhausted.
• The focus of the takings inquiry continues to be on the entire property interest.  A severe adverse impact of a regulation on one portion of the property or ownership interest will not amount to a taking if the property as a whole continues to have a reasonable economic use.
• On the rare occasion that a taking is found to have occurred, the community does not have to buy the entire property.  Damages are payable only for a temporary taking for the period in which the regulations were in effect.  Generally, the measure of damages will take into account the difference in value of the property without the offending regulations in place and with them, an appropriate interest rate to be applied for the temporary loss of value, and the length of time the regulations were in effect.
• As part of legislation, lawmakers should include an administrative process that allows those who administer the law to consider the specific effect of the law on an individual landowner, and - consistent with the interest of the public being protected - afford an administrative relief process for undue economic hardship.

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"1. AN OVERVIEW OF TAKINGS LAW

'…nor shall private property be taken for public use, without just compensation.'

        With these few words, the framers of the United States Constitution enshrined in the Fifth Amendment one of the most fundamental of individual rights - to own property free of the threat or seizure by government, unless the government pays for it.  This basic property right was derived from 17th and 18th Century English legal tradition that prohibited the king from taking a subject's property except by a duly enacted law of the land and with full indemnification

        Historical records show that what the drafters of the Bill of Rights had in mind when they adopted the 'just compensation' or 'takings' clause was to permit the government to take private property for public use - for example, land needed for a public highway - but only upon payment of compensation.  Today, we call this government action exercising the right of eminent domain or condemnation.  Thus once again, the framers demonstrated their genius in balancing the rights of the individual with the clear need or the people - government - to undertake public projects for everyone's benefit.  It is hard to imagine how the nation could have grown or society would have functioned without the ability to judiciously exercise the power of eminent domain to build roads, dams, parks, and other projects.  Indeed, hardly any reasonable person would quarrel with that notion.

        How then has the just compensation clause of the Fifth Amendment become the center of a controversy that lawyers like to call the "takings" issue - which has little to do with the actual seizure of property or exercise of the power of eminent domain, as our forefathers understood it?

        Historically, a corollary of the right to hold property has been a duty to refrain from using it in a manner that would cause harm or injury to neighboring landowners or the general public.  Because the use of land invariable affects neighbors and the community health and welfare, absolute use has never been considered a protected property right.

        Courts in recent years have struggled to find an equitable balance between the rights of the public to a healthy environment and livable communities and the rights of landowners.  Because of the enormous stakes involved, this constitutional quarrel is far more than an intellectual exercise.  The health of our environment and quality of our communities are at stake."

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Christopher Duerksen is a land use attorney who directs the Denver office of Clarion Associates, Inc., a real estate and land use consulting firm. He is a former chair of the American Bar Association's Committee on Land Use Planning & Zoning.

Richard J. Roddewig, MAI, CRE, is President of Clarion Associates, Inc. He is both a real estate analyst as well as a land use and zoning attorney. Richard is also a past Chair of the American Bar Association's Land Use Planning and Zoning Committee, and has written extensively on land use issues.

For more on takings, see  http://www.cacities.org/index.jsp?zone=ilsg&previewStory=20212

http://www.planning.org/resources-k/lawsources.htm;    http://www.plannersweb.com/wfiles/w142.html