Takings - Next Generation Bar Exam

1. Through which provision does the Takings Clause apply to the states?

   The Due Process Clause of the Fourteenth Amendment. The Takings Clause was among the first Bill of Rights guarantees applied to the states.

2. What factors govern a regulatory takings claim under Penn Central?

   The economic impact, interference with distinct investment-backed expectations, and the character of the government action. Penn Central applies to regulations that do not fall within a per se category.

3. Under Tyler v. Hennepin County, what is the status of a government's keeping all proceeds of a tax-foreclosure sale that exceed the tax debt?

   It is a taking requiring just compensation. The government may collect the debt but may not keep the owner's surplus equity.

4. Under Loretto v. Teleprompter Manhattan CATV, what kind of government action is a per se taking?

   A permanent physical occupation of property, however small. Compensation is owed without regard to the public interest served or the economic impact.

5. Under Knick v. Township of Scott, when may a property owner bring a federal takings claim in federal court?

   As soon as the government takes property without paying compensation. Knick overruled the requirement that owners first seek compensation in state court.

6. What is the usual measure of just compensation for a taking?

   The fair market value of the property at the time of the taking. Compensation is measured by the owner's loss, not the government's gain.

7. Under Lucas v. South Carolina Coastal Council, when is a regulation a per se taking?

   When it deprives the owner of all economically beneficial use of the land. No compensation is owed if background principles of nuisance or property law already barred the use.

8. Under Kelo v. City of New London, what counts as a public use under the Takings Clause?

   A taking for economic development under a comprehensive plan, reviewed deferentially. Public use is read broadly as public purpose; many states have since restricted such takings by statute.

9. A city conditions a store expansion permit on dedicating land for a bike path but cannot relate the path's size to the expansion's traffic impact. Why is the condition invalid?

   It fails the rough-proportionality requirement. Dolan v. City of Tigard requires an individualized determination that the exaction is related in nature and extent to the project's impact.

10. Under Cedar Point Nursery v. Hassid, what is the status of a regulation granting third parties a right to physically enter private property?

    It is a per se physical taking. The right to exclude is a fundamental element of property.

11. Under Nollan and Dolan, what must the government show to impose a condition on a land-use permit?

    An essential nexus to a legitimate interest and rough proportionality to the project's impact. Koontz extended the test to monetary exactions and permit denials, and Sheetz to legislatively imposed conditions.

12. Under Tahoe-Sierra Preservation Council, how is a temporary development moratorium analyzed?

    Under the Penn Central factors, not as a per se taking. A temporary loss of all economic use is not automatically a total taking.

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