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otherwise have seen set, consistent with other factors set forth in the ordinance. Accordingly, this case did not "present a sufficiently concrete factual setting for the adjudication of the takings claim" presented. 107 S. Ct. at 857. In dissent, Justice Scalia, joined by Justice O'Connor, argued that the just compensation clause claim was not premature, and that the "tenant hardship clause" in question "effect[ed] a taking of property without just compensation." 107 S. Ct. at 859. Since the Court's majority avoided addressing the takings claim, Pennell adds very little to our understanding of the Court's evolving just compensation clause jurisprudence.

The Supreme Court has not restricted its focus to whether traditional forms of real property or personalty have been taken:

Intangibles, such as trade secrets, and other nontraditional types of property may be protected by the taking clause of the fifth amendment. The existence of the property right will be determined with reference to state law. Once it has been determined that a property interest exists in an intangible, the Court will inquire whether the holder of the interest had a reasonable investment-backed expectation that the property right would be protected. If the Court finds such a reasonable investment-backed expectation, the Court will determine whether governmental action impaired that expectation. If so, the Court will find that a compensable taking has occurred.

The Supreme Court's recognition that the just compensation clause protects all cognizable property interests is manifested by its opinion in Ruckelshaus v. Monsanto Co., 104 S. Ct. 2862 (1984). In Ruckelshaus the Court held that Monsanto's trade secrets were a property right protected by the just compensation clause. This followed from the fact that state law created a property interest in trade secrets and that Monsanto's nondisclosure of particular data confirmed its interest in maintaining the data as a trade secret. Next, the Court determined that the government's public disclosure of Monsanto's data, submitted between 1972 and 1978 pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, constituted a compensable taking under the Fifth Amendment. During the 1972 to 1978 period, the Act gave a submitting party the opportunity to protect its data from disclosure by designating them as secrets that would remain confidential. This statutory guarantee formed the basis of

3 Treatise on Constitutional Law, supra, §15.12, at 130, n. 4.

an investment-backed expectation in the privacy of data. Government data disclosures frustrated this expectation and required compensation. The Ruckelshaus holding is consistent with the original understanding that just compensation must be paid whenever a legally cognizable property right is taken.

II. Is the Taking for a Public Use?

The just compensation clause's requirement that a taking be for a "public use" is very easily satisfied, according to the courts. Early judicial interpretations of "public use" read this phrase broadly to mean for "the public good, the public necessity, or the public utility." This broad standard was abandoned in favor of a narrow "use by the public" test in the late 19th century,' only to be reinstated in the early 20th century."

The leading modern case defining the scope of the public use limitation on takings is Berman v. Parker, 348 U.S. 26 (1954), which upheld the constitutionality of the 1945 District of Columbia Development Act. The appellant in Berman argued that the government could not apply the Act to condemn his land and sell it to a private agency for redevelopment, because the land was being redeveloped for a "private" and not a "public" use as required by the Fifth Amendment. The Court, per Justice Douglas, disagreed, finding that the government had broad powers to legislate and exercise eminent domain as necessary for the public health, safety, and welfare. Once the government had declared a condemnation to be for a public use, a reviewing court would be limited to a very narrow due process inquiry. The Court would not second-guess the government's substantive "health, safety, and welfare" policy determination.

The Court followed the broad public benefit test of Berman in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). The Hawaii Land Reform Act of 1967 allowed the state to take real property from

*See Comment, The Public Use Doctrine: “Advance Requiem" Revisited, 1959 Law and the Social Order 689.

'Comment, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 599, 602-03 (1949).

"See Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30 (1916).

lessors for just compensation, and to transfer that property to lessees, in order to reduce Hawaii's concentration of land ownership. The unanimous (eight Justice) Court, per Justice O'Connor, upheld this exercise of eminent domain power as rationally related to the public purpose of correcting deficiencies in the real estate markets and social problems stemming from land oligopoly. (Justice Marshall did not participate.) The fact that the property was transferred to private individuals did not invalidate the taking. The Court emphasized that the public use requirement is "coterminous with the scope of a sovereign's police powers."

The Court's Midkiff opinion makes it virtually impossible to discern what (if any) limits the "public use" requirement imposes on governmental takings. Presumably a governmental unit will always argue that a taking represents a legitimate exercise of the police power. Since the Court appears predisposed to accept governmental police power justifications at face value, it appears unlikely that a taking will be categorized as a "non-public use." The taking of residential property for the building of a private factory could, for example, be justified as an initiative aimed at promoting the public welfare by providing jobs, lessening unemployment, and thereby reducing the incidence of crime. In sum, the constitutional requirement that a taking in some sense benefit the public is almost always satisfied, according to current jurisprudence.

III. How Much Compensation Must Be Paid?

Once a court has found that a compensable taking has occurred, it must determine the measure of just compensation. The courts have developed various valuation standards in making this determination.'

One commonly used standard is embodied in Justice Holmes' statement that the measure of compensation is "what has the owner lost, not what has the taker gained". Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1915). Under this test, the government's liability is fixed by the amount of the injured property owner's loss. Here the courts

'Measures of just compensation are discussed generally in Treatise on Constitutional Law, supra, §15.14, at 151-55. See also L. Orgel, Valuation Under the Law of Eminent Domain (2d ed. 1953); Note, Inverse Condemnation: Valuation of Compensation in Land Use Regulatory Cases, 17 Suffolk U. L. Rev. 621 (1983); Risinger, Direct Damages: The Lost Key to Constitutional Just Compensation When Business Premises are Condemned, 15 Seton Hall L. Rev. 483 (1983).

usually examine the market value of the property that has been taken. They normally look to the value of property in its "highest and best" use, in light of its present and potential uses if those uses can be anticipated with reasonable certainty. See, e.g., Super-Power Co. v. Summers, 186 N.E. 476, 479 (Ill. 1933). This standard is fully in accord with the original meaning of the just compensation clause.

The market value test is, however, not definitive. In United States v. Fuller, 409 U.S. 488 (1973), the Supreme Court stated that the overall standard is governed by basic equitable principles of fairness. Accordingly, the Court held in Fuller that the government as a condemnor was not required to pay for elements of the property's market value that the government had created by granting the landowner a revocable permit to graze his animals on adjoining federal lands. Determining what elements are included in "equitable" compensation has involved ad hoc case-bycase inquiries."

Property's fair market value must be determined on the date of the taking in order fully to compensate the owner. If there is a difference in property value between the date of the taking and the date payment is tendered, the property owner is entitled to interest from the date of the taking or a new valuation if the property's value has changed materially. See Kirby Forest Industries, Inc. v. United States, 467 U.S. 1 (1984). In determining when a taking occurred, the government must determine the time at which the property's value was substantially reduced by the government's actions or announcement of intention to take title. See Kirby Forest, supra. This rule fulfills the just compensation clause's

8 See Note, Valuation of Conrail Under the Fifth Amendment, 90 Harv. L. Rev. 596, 598 (1977).

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See, e.g., United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266 (1943), mandate conformed 138 F.2d 343 (4th Cir. 1943), cert. denied 321 U.S. 773 (1944) (in condemning land federal government need not consider in valuing property the loss of business opportunity dependent on owner's privilege to use state's power of eminent domain); United States v. Bodcaw Co., 440 U.S. 202 (1972), on remand 594 F.2d 169 (5th Cir. 1979) (per curiam) (appraisal fees incurred by landowner in connection with condemnation proceeding not constitutionally compensable interests); United States v. 564.54 Acres of Land, 441 U.S. 506 (1979) (private nonprofit organization whose recreational camp was condemned not entitled to replacement cost for the camp; replacement cost would have been higher than market value); United States v. 50 Acres of Land, 105 S.Ct. 451 (1985) (federal government not required to pay for cost of substitute facility taken from a state or local government; state and local governments, like private parties, only entitled to market value of property taken).

command that an individual be fully compensated for taking-related diminutions in property rights.

Finally, particularly difficult valuation problems may occur if the government rescinds an onerous regulation that formed the basis for a takings claim. In San Diego Gas, supra, Justice Brennan's dissent strongly suggested that just compensation must be paid for the temporary diminution of property's value prior to the adjudication of the takings issue. As Justice Brennan pointed out, "the just compensation requirement in the Fifth Amendment is not precatory: once there is a 'taking,' compensation must be awarded." 450 U.S. at 654 (emphasis in the original). See also Nemmers v. City of Dubuque, 764 F.2d 502, 505 n. 2 (8th Cir. 1985) (awarding “temporary takings" damages and noting that Justice Brennan's valuation method had "considerable persuasive appeal"). The requirement that property owners be fully compensated for all takings is supported by original meaning analysis.

IV. Case Law Divergence from Original Meaning

The Supreme Court's just compensation clause jurisprudence occasionally appears to have strayed from our understanding of what the just compensation clause mandates. The most fundamental flaw in just compensation clause analysis may be the interposition of a "police power" (or "public policy") exception to justify non-payment of compensation when government actions have significantly reduced property values (see, for example, Schoene, Euclid, Goldblatt, Penn Central, and Keystone). As previously explained, the wording of the clause simply does not appear to permit such an exception. When legallyprotected property rights are reduced in value (through direct government action), there is a taking, and the clause commands that compensation be paid, without regard to whether eminent domain or the police power is being invoked. A standardless public policy balancing test (as in Penn Central) cannot justifiably serve as the determinant of whether a taking has occured. On the positive side, the Court has finally declared unequivocally, in First English, that the victims of uncompensated takings must be guaranteed the right to seek monetary recoveries through inverse condemnation suits. The right to bring such suits follows directly from the Constitution's guarantee that compensation will be paid for takings.

The Court also has effectively read the "public use" limitation out of the just compensation clause. The Midkiff decision allows virtually

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