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Property > 11) ED > Flashcards

11) ED Flashcards

1
Q

F: Timber company takes trees, would be a compensable taking if the land belonged to the Indians H: it’s not their land – gvt has never recognized their legal title (cites M’Intosh + Indians’ different concept of property rights) (unfair)

A

Tee-Hit-Ton Indians v. US

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2
Q

F: P wanted to build houses on 2 coastal lots but then new law no permanent habitable structures H: deprivation of all economic value, so it’s a taking UNLESS (1) you never had that right to start w (check title) OR (2) prohibited use also wouldn’t be allowed under nuisance law

A

Lucas v. South Carolina Coastal Council

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3
Q

Takings: 2 kinds

A

ED RT

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4
Q

F: city makes dvt plan to create jobs and up taxes through big dvt project H: economic improvement of city is a legit public use and ok for gvt to take and give to private actors for htis purpose, bc “rationally related to a conceivable public purpose” – NO requirement for reasonable certainty that pub bens will actualy happen

A

Kelo v. City of New London

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5
Q

F: city makes dvt plan to create jobs and up taxes through big dvt project H: economic improvement of city is a legit public use and ok for gvt to take and give to private actors for htis purpose, bc “rationally related to a conceivable public purpose” – NO requirement for reasonable certainty that pub bens will actualy happen

A

Kelo v. City of New London

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6
Q

mailboxes (which could be even worse bc LL has to pay for them)

A

Loretto v. Teleprompter Manhattan CATV Corp – Dissent

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7
Q

per se takings: what to do

A

no ad hoc test – special rule

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8
Q

ch of gvt action

A

legitimately using police power to legislate re private conduct to protect health/welfare/safety (tree disease) OR is it requiring particular owner to impose a benefit (reciprocity of advantage–public burdens shoud be borne by the public as a whole)

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9
Q

fed gvt as taker is bound by

A

not state statutes/constitutions (supremacy clause)

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10
Q

but fed statutes (4)

A

–only apply if taken by fed gvt, state gvt using fed funding): 1) compensation for moving costs 2) lost personal property from move 3) actual reaosnable expenses in searching for replacement business 4) extra for your house

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11
Q

Loretto v. Teleprompter Manhattan CATV Corp

A

F: state law requires LL allow cable co install 1.5 cubic foot cable box on building H: this is a taking bc it’s a permanent physical invasion. Dn matter sm economic impact or public interest, bc cuts from each stick in bundle

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12
Q

F: P wanted to build houses on 2 coastal lots but then new law no permanent habitable structures H: deprivation of all economic value, so it’s a taking UNLESS (1) you never had that right to start w (check title) OR (2) prohibited use also wouldn’t be allowed under nuisance law

A

Lucas v. South Carolina Coastal Council

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13
Q

F: P coal co wants to mine under D’s proeprty and make house sink, deed said this could happen but PA law says no mine under someone’s house H: the PA law is unconstitutional, it’s a taking against a coal mine

A

PA Coal v. Mahon

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14
Q

Penn Central Transportation Co V NYC

A

F: P wants to build tall building on top of Grand Central station but can’t bc preservation statute, says it’s taking of its air rights H: not a takig, regulations substantially related to promotion of general welfare, permit reasonable use –> and of course, home of the 3 factor test

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15
Q

example of a more restrictive state const

A

ND: –pub use/purpose DNI pub economic dvt –no take private property to be owned by other private entity

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16
Q

just compensation: SC Says no (2, inc 1 exception)

A

1) costs of moving to other location (even to rebuild your summer camp) 2) business good will / going concern value (exception: temporary takings)

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17
Q

just compensation: leases

A

SC says market value of leases includes FMV inc option to renew lease

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18
Q

what’s a taking?

A

No bright line rule!

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19
Q

economic impact of taking on particular owner

A

are you still able to get reasonable value for it? what’s the diminution in value? (are they taking a large amt?) (denominator matters)

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20
Q

PA Coal v. Mahon

A

F: P coal co wants to mine under D’s proeprty and make house sink, deed said this could happen but PA law says no mine under someone’s house H: the PA law is unconstitutional, it’s a taking against a coal mine

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21
Q

F: state law requires LL allow cable co install 1.5 cubic foot cable box on building H: this is a taking bc it’s a permanent physical invasion. Dn matter sm economic impact or public interest, bc cuts from each stick in bundle

A

Loretto v. Teleprompter Manhattan CATV corp

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22
Q

partial takings: SC says you get

A

severance damages, offset by special benefit

23
Q

supercompensation statutes

A

some states: 125-150%

24
Q

Tee Hit Ton contrast US v. Sioux Nation

A

Sioux Nation the lands were recognized by treaty (so yes taking)

25
Q

F: P wants to build tall building on top of Grand Central station but can’t bc preservation statute, says it’s taking of its air rights H: not a takig, regulations substantially related to promotion of general welfare, permit reasonable use –> and of course, home of the 3 factor test

A

Penn Central Transportation Co V NYC

26
Q

ED elements (3)

A

1) gvt physically takes your land 2) “for public use” 3) must provide “just compensation”

27
Q

Loretto v. Teleprompter Manhattan CATV Corp – Dissent

A

mailboxes (which could be even worse bc LL has to pay for them)

28
Q

takings analysis

A

1) was there a taking? (all the factors)
2) public use (Kelo)
3) just compensation

29
Q

F: P wants to build tall building on top of Grand Central station but can’t bc preservation statute, says it’s taking of its air rights H: not a takig, regulations substantially related to promotion of general welfare, permit reasonable use –> and of course, home of the 3 factor test

A

Penn Central Transportation co v. NYC

30
Q

F: P coal co wants to mine under D’s proeprty and make house sink, deed said this could happen but PA law says no mine under someone’s house H: the PA law is unconstitutional, it’s a taking against a coal mine

A

PA Coal v. Mahon

31
Q

permanent physical invasion: exceptions (2)

A

1) rent control 2) antidiscrim (have to still let the person enter your area)

32
Q

F: Timber company takes trees, would be a compensable taking if the land belonged to the Indians H: it’s not their land – gvt has never recognized their legal title (cites M’Intosh + Indians’ different concept of property rights) (unfair)

A

Tee-Hit-Ton Indians v. US

33
Q

just compensation

A

1) usu FMV (amt would sell for on open market) –dn inc any increase in value caused by taking

34
Q

per se takings: types

A

1) permanent physical invasion 2) completely deprive of economically viable use

35
Q

ED: public use test

A

“public benefits and characteristics of intended use substantially predominate over private nature of that use”

36
Q

Lucas v. South Carolina Coastal Council

A

F: P wanted to build houses on 2 coastal lots but then new law no permanent habitable structures H: deprivation of all economic value, so it’s a taking UNLESS (1) you never had that right to start w (check title) OR (2) prohibited use also wouldn’t be allowed under nuisance law

37
Q

per se takings, aka

A

categorical takings

38
Q

special benefit

A

eg having road run past your business (vs general enefit where everyone in enighborhood gets like advantage)

39
Q

severance damages

A

not just the actual value of the land you took but also corresponding decrase in other property’s value (yes you get this per SC)

40
Q

eminent domain: US Const basis

A

5th am “nor shall private property be taken for public use w/o just compensation” – applies to states bc 14th am

41
Q

Penn Central Test – 3 factors

A

1) ch of gvt action 2) protection of reasonable, investment backed expectations 3) economic impact on particular owner

42
Q

protection of reasonable, investment backed expectations (3 sub-factors)

A

more likely a taking if reliance on existing law and substantial (monetary) investment are you CURRENTLY using it for the thing or you just wanted to be able to in the future?

43
Q

Penn Central Transportation Co v. NYC –> dissent

A

dissent: historical preservation statute makes a few owners bear disproportionate cost– 400 buildings but this is out of a million and there is affirmative cost to the owners to preserve

44
Q

eminent domain: source of law

A

1) US Const 2) state consts and statutes –many more restrictve than US constitution

45
Q

F: shopping center thinks ppl free-speech-petitioning on its property is a taking (can’t exclude) H: not a taking, no econoic impact and no unreasonably impair use (time/pace restrictions)

A

PruneYard Shopping Center v. Robbins

46
Q

PruneYard Shopping Center v. Robbins

A

F: shopping center thinks ppl free-speech-petitioning on its property is a taking (can’t exclude) H: not a taking, no econoic impact and no unreasonably impair use (time/pace restrictions)

47
Q

dissent: historical preservation statute makes a few owners bear disproportionate cost– 400 buildings but this is out of a million and there is affirmative cost to the owners to preserve

A

Penn Central Transportation Co v. NYC –> dissent

48
Q

Cobell (NR)

A

F: land held in trust, gvt allows oil drilling and gives tiny fractional shares H: it’s a taking, legislative settlement for billions but not enough

49
Q

F: state law requires LL allow cable co install 1.5 cubic foot cable box on building H: this is a taking bc it’s a permanent physical invasion. Dn matter sm economic impact or public interest, bc cuts from each stick in bundle

A

Loretto v. Teleprompter Manhattan CATV Corp

50
Q

Kelo: O’Connor dissent (2)

A

O’Connor dissent: now no distinction btwn private and public taking. Should instead require that prior use was affirmatively harmful

51
Q

Tee-Hit-Ton Indians v. US

A

F: Timber company takes trees, would be a compensable taking if the land belonged to the Indians H: it’s not their land – gvt has never recognized their legal title (cites M’Intosh + Indians’ different concept of property rights) (unfair)

52
Q

Kelo v. City of New London

A

F: city makes dvt plan to create jobs and up taxes through big dvt project H: economic improvement of city is a legit public use and ok for gvt to take and give to private actors for htis purpose, bc “rationally related to a conceivable public purpose” – NO requirement for reasonable certainty that pub bens will actualy happen

53
Q

regulatory taking

A

regulation makes your property less valuable and stops you from doing something you wanted to do

54
Q

Tee-Hit-Ton: situation now (3 parts)

A

settled PAST by ANCSA (Alsaka Native Claims Settlement Act) but going FORWARD, this is still law settled this way to avoid paying interest

Property (13 decks)

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