Suppose you live in a town where commercial development is trying to come in and “take” (in exchange for just compensation) several waterfront residences to building a new mall area with restaurants,

Suppose you live in a town where commercial development is trying to come in and “take” (in exchange for just compensation) several waterfront residences to building a new mall area with restaurants, bars, and souvenir shops. This new development is supposed to create 500 jobs and bring in countless visitors each year.

Over the past 25 years, the town’s economy has been tolerable, but not booming, the tax base has been shrinking because of younger people moving away, and what was once a major tourist economy is languishing.

Is there a constitutional and/or public policy argument that would legally support the taking of these properties against the will of the residents? Explain.

Taking the opposite side, are there legal arguments against the taking? Be sure to include specific examples and case law to support your work.


Is there a constitutional policy that lets the government take property? The answer is yes. According to the Fifth Amendment, the taking clause allows just that. However, it says that it must give ‘just compensation’. That is very subjective, and what may be just to one, is not just to the other. Some properties may have a sentimental value that cannot be replaced or bought. In the taking clause, the land that is taken must be used for public use. It cannot be used to build private properties.

Though trying to find cases against it has been a challenge. I believe in some cases that the taking clause could provide more heartache and headache than what it is worth. I agree in city mayors and officials trying to create more attractions for the city. I believe the homeowner/landowners should outweigh the gain versus loss. For example, the economy may be down, prices are higher, etc. More attraction can help.

Many residents that live in these parts like the fact of a small town and may not want it to change. I agree with that too. I live in the county. We have a Walmart finally, but I worry that it will make my small town more big, and that’s what I do not want. I see new neighborhoods going up and I know that is a sign that the city (which is only 10 minutes away) is booming with jobs and we need more residences. It is a double edge sword. My quite peace country town may not be some much like that in a few years.

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