Chapter 13/14: Eminent Domain/Takings

Question 1

Scope of Public Use

What is the test for determining public use?

Answer 1

Kennedy: the rational basis is supported by a comprehensive plan designed for projected economic benefits

Question 2

Scope of Public Use

What are the restrictions imposed by the 5th Amendment?

Answer 2

1. Property may be taken only for a public use, and
2. Just compensation must be paid to the owner

Question 3

The Penn Central Standard

What are the three factors in the balancing test?

Answer 3

1. The economic impact of the regulation;
2. The extent to which the regulation has interfered with distinct investment back expectations; and
3. The character of the governmental act

Question 4

The Penn Central Standard

What are the three factors to solve the denominator issue?

Answer 4

1. Treated as a single parcel under the local law?;
2. Physical characteristics of the land;
3. prospective value of the regulated land

Question 5

Permanent Physical Occupation

What is the Loretto test?

Answer 5

1. Does the regulation allow for actual physical intrusion;
2. is the physical intrusion permanent?

Question 6

Loss of All Economically Beneficial Use

What is the Lucas test?

Answer 6

Does regulation
1. Eliminate all economically beneficial use;
2. Fall under emergency doctrine;
3. Would use have been regulated under nuisance;
4. Make taking permanent?

Question 7

Loss of All Economically Beneficial Use

How does the court handle temporary takings?

Answer 7

Under Penn Central, the property must be examined as a whole; a fee simple estate cannot be rendered valueless by a temporary taking

Question 8

Physical Invasion

What is the Cedar Point test?

Answer 8

1. Is the right to exclusion interfered with?
2. Is the physical invasion isolated?
3. Is there a preexisting limitation (eg reasonable search?)
4. Is a right of access as a condition of receiving benefits? (under Nolan/Dollan)