Inverse condemnation

Early republic to the 1920s Since the early days of the United States, inverse condemnation claims have been brought under the Takings Clause which states that private property shall not "be taken without just compensation". It is generally accepted by legal scholars that the clause "was originally understood to apply only to physical seizures of property" and was not interpreted as expansively as it is today. The doctrine was first applied to regulations of property after the U.S. Supreme Court's seminal decision in ''Pennsylvania Coal Co. v. Mahon. particularly the formation of the Pacific Legal Foundation in 1971, and the publication in 1985 of Richard A. Epstein's book, Takings. In particular, the doctrine was expanded by three Supreme Court cases in the 1980s. Thus, during the late twentieth century, the discussion of regulatory takings predominated the discussion of inverse condemnation in legal academia. 2000s to 2020 In 2013, the Supreme Court in Horne v. Department of Agriculture held that the Takings Clause applies to personal property as well as real property. A study of inverse condemnation claims filed in federal courts from the years 2000 to 2014 found that most arose out of "alleged physical invasions or direct appropriations of property interests, with most arising out of military airplane flights, flooding, or conversions of railroad lines to recreational trails." In that decision, Chief Justice John Roberts, writing for the 6-3 majority, created a new per se takings rule, finding that when "the government enacts a regulation authorizing a temporary invasion of a property owner's land, it effects a per se taking under the Fifth Amendment for which it must pay just compensation." One property law textbook author has stated that the decision upended four decades of takings jurisprudence. In particular, the author believed that the case did not follow precedent and that it conflated regulatory takings with the Court's exactions doctrine. Other legal scholars have noted that the decision departed from prior precedent by not using the Penn Central test to analyze the impact of a government regulation. == Legal tests for inverse condemnation causes of action under the Fifth Amendment ==

Direct acquisition It is a taking "when the government physically takes possession of property without acquiring title to it." If the government's action constitutes a taking, it must pay just compensation for the property acquired. Most cases involving regulatory takings are "evaluated under the multifactor balancing test established in Penn Central Transportation Co. v. New York City, which requires that a court examine, among other factors, the regulation's economic impact on the property owner, its degree of interference with the owner's reasonable investment-backed expectations, and the property's character to determine whether a regulation goes far enough to characterize it as a taking." Nuisance-based takings Despite commentators and jurists often dividing inverse condemnation cases into two categories (physical takings and regulatory takings), a third form of inverse condemnation exists: nuisance-based takings. The doctrine of nuisance-based takings "consists of cases where the government (or a third party acting pursuant to explicit governmental authority) uses its own property in ways that interfere with the ability of other owners to use and enjoy their properties".''' The Supreme Court of the United States has identified several criteria for identifying when an exaction, including monetary exactions, becomes a taking that requires compensation under the Fifth Amendment. In Nollan v. California Coastal Commission, the Court ruled that an exaction is constitutional if it shares an "essential nexus" with the reasons that would allow rejection of the permit altogether. Moreover, in Dolan v. City of Tigard, the Court added that an exaction is constitutional only if the public benefit from the exaction is "roughly proportional" to the burden imposed on the public by allowing the proposed land use. The government imposing the exaction has the burden to prove the existence of "rough proportionality" between the ends and means. ==Legal process==

Unlike the typical eminent domain case, the property owner is the plaintiff and not the defendant. The Takings Clause may be enforced against the federal government or against states through incorporation of the 5th Amendment through the Fourteenth Amendment. Moreover, inverse condemnation cases may also arise under state constitutions, most of which include a Takings clause which are interpreted similarly to the Takings Clause in the federal constitution. == Criticism of the doctrine ==

Inverse condemnation has long had a reputation in legal academia as being "muddled", a "confusing mess", ==See also==