11) ED Flashcards
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)
Tee-Hit-Ton Indians v. US
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
Lucas v. South Carolina Coastal Council
Takings: 2 kinds
ED RT
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
Kelo v. City of New London
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
Kelo v. City of New London
mailboxes (which could be even worse bc LL has to pay for them)
Loretto v. Teleprompter Manhattan CATV Corp – Dissent
per se takings: what to do
no ad hoc test – special rule
ch of gvt action
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)
fed gvt as taker is bound by
not state statutes/constitutions (supremacy clause)
but fed statutes (4)
–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
Loretto v. Teleprompter Manhattan CATV Corp
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
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
Lucas v. South Carolina Coastal Council
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
PA Coal v. Mahon
Penn Central Transportation Co V NYC
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
example of a more restrictive state const
ND: –pub use/purpose DNI pub economic dvt –no take private property to be owned by other private entity
just compensation: SC Says no (2, inc 1 exception)
1) costs of moving to other location (even to rebuild your summer camp) 2) business good will / going concern value (exception: temporary takings)
just compensation: leases
SC says market value of leases includes FMV inc option to renew lease
what’s a taking?
No bright line rule!
economic impact of taking on particular owner
are you still able to get reasonable value for it? what’s the diminution in value? (are they taking a large amt?) (denominator matters)
PA Coal v. Mahon
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
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
Loretto v. Teleprompter Manhattan CATV corp
partial takings: SC says you get
severance damages, offset by special benefit
supercompensation statutes
some states: 125-150%
Tee Hit Ton contrast US v. Sioux Nation
Sioux Nation the lands were recognized by treaty (so yes taking)
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
Penn Central Transportation Co V NYC
ED elements (3)
1) gvt physically takes your land 2) “for public use” 3) must provide “just compensation”
Loretto v. Teleprompter Manhattan CATV Corp – Dissent
mailboxes (which could be even worse bc LL has to pay for them)
takings analysis
1) was there a taking? (all the factors)
2) public use (Kelo)
3) just compensation
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
Penn Central Transportation co v. NYC
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
PA Coal v. Mahon
permanent physical invasion: exceptions (2)
1) rent control 2) antidiscrim (have to still let the person enter your area)
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)
Tee-Hit-Ton Indians v. US
just compensation
1) usu FMV (amt would sell for on open market) –dn inc any increase in value caused by taking
per se takings: types
1) permanent physical invasion 2) completely deprive of economically viable use
ED: public use test
“public benefits and characteristics of intended use substantially predominate over private nature of that use”
Lucas v. South Carolina Coastal Council
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
per se takings, aka
categorical takings
special benefit
eg having road run past your business (vs general enefit where everyone in enighborhood gets like advantage)
severance damages
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)
eminent domain: US Const basis
5th am “nor shall private property be taken for public use w/o just compensation” – applies to states bc 14th am
Penn Central Test – 3 factors
1) ch of gvt action 2) protection of reasonable, investment backed expectations 3) economic impact on particular owner
protection of reasonable, investment backed expectations (3 sub-factors)
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?
Penn Central Transportation Co v. NYC –> dissent
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
eminent domain: source of law
1) US Const 2) state consts and statutes –many more restrictve than US constitution
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)
PruneYard Shopping Center v. Robbins
PruneYard Shopping Center v. Robbins
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)
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
Penn Central Transportation Co v. NYC –> dissent
Cobell (NR)
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
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
Loretto v. Teleprompter Manhattan CATV Corp
Kelo: O’Connor dissent (2)
O’Connor dissent: now no distinction btwn private and public taking. Should instead require that prior use was affirmatively harmful
Tee-Hit-Ton Indians v. US
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)
Kelo v. City of New London
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
regulatory taking
regulation makes your property less valuable and stops you from doing something you wanted to do
Tee-Hit-Ton: situation now (3 parts)
settled PAST by ANCSA (Alsaka Native Claims Settlement Act) but going FORWARD, this is still law settled this way to avoid paying interest
