(18) Constitutional Law: Takings/Zoning Flashcards
5th Amendment Takings (Eminent Domain)
Overview + Main Rule
The government may take private property for public use if it provides just compensation.
There are 3 types of Takings: (1) Destruction of Property; (2) Regulatory Taking; and (3) Exaction as a Taking.
What types of property does the Taking Clause apply to?
Takings Clause
Applies to tangible personal property, real property and intangible property (contracts, IP rights).
Applies to easements, leaseholds, or liens.
If a person acquires property rights after the adoption of a regulation that affects their rights, may they challenge the regulation?
Takings Clause
YES, a person who acquires property rights after the adoption of a regulation that affects their rights may challenge the regulation.
Define
“Public Use”
Takings Clause
A taking is deemed for public use if the taking is rationally related to a conceivable public purpose (think rational basis standard).
If the government takes property and give it to a private party is it still for public use?
Takings Clause
YES, this may include the government taking the property and giving to a private party, the government mandating a transfer from one private party directly to another private party, etc.
Define “Just Compensation”
Takings Clause
Just compensation is measured by the fair market value of the property at the time of the taking (relocation/moving costs are not included).
What is the “Just Compensation” for property, when only a portion is taken?
Takings Clause
When only a portion of the property is taken the owner may receive a diminution in value of the remaining portion.
What is the “Just Compensation” for property when the government only takes the property for a period of time (and returns it)?
Takings Clause
If the government returns the property they must pay for the time period they possessed the property.
What is the “Just Compensation” for property when the government takes it because it has value to it, but it has no value to the owner?
Takings Clause
Property that is worthless to the owner but has value to the government may be taken without payment.
Types of Takings
Takings Clause
- Destruction of Property
- Regulatory Taking
- Exaction as a Taking
Destruction of Property
Takings Clause
Destruction of property or property rights by the federal, state, or local government can result in a taking. The destruction need not directly benefit the government.
Ex. Preventing a transfer of interest and there is no ability to be justly compensated.
Public Peril Exception
Takings Clause / Destruction of Property
The government destruction of private property in response to a public peril does not trigger the right to compensation.
Ex. Owners of infected trees were not compensated for the destruction since they were destroyed to prevent the spread of the infection to the orchards.
Destruction of Property Example:
Is a statute that requires an owner to take action or lose its unused rights a taking?
Takings Clause
NO, a statute that requires an owner to take action to preserve the unused rights does not result in a taking if the owner fails to act.
Destruction of Property Example:
Can the government re-characterize private property as public property?
Takings Clause
NO, the government cannot re-characterize private property as public property.
Regulatory Taking
Takings Clause
A government regulation that adversely affects a person’s property interest is generally not a taking, however there are 3 types of Regulatory takings: (1) Taking Per Se; (2) 2 Factor Test; (3) Character of the Governments actions.
Taking Per Se
Takings Clause / Regulatory Taking
A regulation completely deprives an owner of all economic beneficial use. The government must then pay just compensation for a total regulatory taking unless nuisance and property law independtly restrict the owners intended use of the property.
*Occurs with permanent loss of physical occupation or permanent total loss of the property’s economic value.
2 Factor Test
Takings Clause / Regulatory Taking
The court will look at the following factors: (a) the economic impact of the regulation on the property owner; (b) the extent of the regulations interference with the owners reasonable investment backed expectations regarding use of the property.
The Character of the Governments Actions
Takings Clause / Regulatory Taking
The character of the government action. Including the degree to which it will benefit society and burdens the owner.
Exaction as a Taking
Takings Clause / Regulatory Taking
A local government may exact promises from a developer and they will not violate the takings clause if there is (1) An essential nexus between legitimate state interests and the conditions imposed on the property owner AND (2) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.
Ex. The developer will receive construction permits if they set aside a portion of land being developed for a park.
Zoning Ordinances and Spot Zoning Overview
States may restrict the use of land through zoning ordinances or spot zoning.
Use Regulations
Zoning Ordinance
Use regulations are zoning ordinances that separate land based on use. A use regulations may not be applied retroactively to prohibit nonconforming use.
Non Conforming Use
Zoning Ordinance
A nonconforming use will lose protection only if it is (a) abandoned; (b) substantially changed; OR (c) destroyed.
(Rule & Rule for one of the elements)
Amortization Provisions
Zoning Ordinance / Non Conforming Use
Require termination of nonconforming use after a specified period of time and is constitutional if the time is reasonable.
(When determining reasonability consider the benefits and losses to the private owner and the public)
Definition
Spot Zoning
Spot Zoning is when a small area of land is zoned differently than surrounding areas of land for the benefit of a small landowner.
Rule:
Spot Zoning
Spot zoning is upheld if supported by a reasonable basis. Factors to consider include: (a) the size of the specific area of land; (b) whether the zoning is arbitrary or compatible with existing comprehensive zoning plan; AND (c) the benefits and detriments to the specific landowners, surrounding landowners, and the community.
Vested Rights Doctrine
The vested rights doctrine protects landowners from subsequent changes in zoning if: (1) substantial construction has begun; AND (2) substantial expenditures have been made in reliance on a valid permit.
Can landlords obtain vested rights if no construction has begun but substantial expenses have been incurred due to planning?
Vested Rights Doctrine
NO, If no construction has begun landlords will not obtain a vested right to continue development despite substantial expenses incurred for planning services.
