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What Constitutes a Taking

What is necessary in order for a “taking” to occur is not always a formal transfer of interest in the property. Rather, what is required is a destruction of a personalinterest in property, or such a drastic interference with the use and enjoyment of that property so as to constitute a taking. In other words, the impairment is so severe that it is tantamount to the assertion of a servitude on the property for the benefit of the government.

It is often the case that a landowner is not completely deprived of his property, but instead suffers a restriction or impairment of his or her right to use it. For example (and as is frequently the case), a government may need to run a utility through private property, or need to alter a shoreline such that the property is no longer on the waterfront. The property may need to be flooded to create a dam, or a building on the property may need to be relocated to make access to another point. In such cases, a partial taking may be effected, and the landowner is entitled to proportional compensation.

Still another form of taking may occur when there is no actual property being taken from a person. Instead, governmental activity on one property may so severely deplete the value of adjacent or neighboring property so as to constitute a “constructive taking,” often referred to as inverse or reverse condemnation. Fumes, noises, vibrations, changes in flow of ground water, or toxic pollutants are some of the more common interferences that may constitute constructive takings. Examples include properties affected by airport noise and fumes, waterfront properties affected by rerouted water, or livestock farms affected by nearby noise or ground vibration. In each of these circumstances, property owners may be entitled to compensation from the governmental entity.

Finally, a taking need not be permanent; it may be effected and justified only under limiting circumstances. For example, in time of war or insurrection, a government may need to exercise control and dominion over lands otherwise not needed for public welfare or safety. Again, a landowner may be compensated for the temporary impairment or deprivation in his or her use of private property.

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