What is a "taking"? |
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The notion of a "taking" does not have a consistent meaning, but has
been interpreted by the courts in a variety of contexts. The Fifth Amendment to the Constitution says
that private property shall not be "taken for public use without just compensation" but this has been
interpreted to apply most directly to "eminent domain" situations where the government takes title to
the land, and "invasion" of land such as flooding resulting from a dam. By contrast, prior to 1922,
regulations for the public welfare were not subject to compensation under the definition of takings, and
"nuisance" regulations have long been used to prevent conflicts between land uses such as noise,
pollution or unsafe conditions. Moreover, planning and zoning laws have evolved to include broader and
more detailed protections for these conflicts. Recent rulings make several key points about the need
for compensation: 1) simply denying the most profitable use of land does not constitute a taking,
although denying all economic use would constitute a taking; 2) land use regulations must serve a
valid public purpose, 3) public access to private property can constitute a taking. For a more
detailed discussion of case law in the U.S. and specifically for Oregon, see "Property Rights,
Land Stewardship and the Takings Issue" by James Pease.[PDF]
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