Chapter 15: Takings Flashcards
Regulatory Taking: Economic Wipeout
-Was the planning commission’s refusal to grant a building permit to Oscar for Greenacre an economic wipeout that would be considered a regulatory taking per se?
-Under Lucas, a regulatory taking includes an economic wipeout, that is, when the landowner is denied all productive or beneficial use.
Regulatory Taking: Penn Central Analysis
-Does the planning commission’s denial of a building permit for Oscar go “too far” and constitute a regulatory taking in light of the Penn Central ad hoc analysis?
-The Penn Central factors are: whether there was average reciprocity of advantage; interference with distinct investment backed expectations; an analysis of the character of the government’s action; and the extent of the diminution in value; and whether the landowner was given a transferrable development right.
Average Reciprocity of Advantage
-When the planning commission denied the permit because of earthquake concerns, did Oscar receive an average reciprocity of advantage?
-Although is it not fully clear what the Supreme Court means by the term, apparently the term means that either (1) the landowner was not singled out for harsh treatment, or (2) that even while the landowner cannot develop his land as he chooses, he or she nonetheless has received a benefit from the governmental restriction, or (3) both.
Distinct Investment Backed Expectations
-Did the planning commission interfere with Oscar’s distinct investment backed expectations when he paid $100k for the land and the denial of a building permit frustrated his plans to make $1 million profit and rendered the land almost valueless?
-While the supreme Court has never defined this term, it probably relates to his reasonable expectations, recouping his initial capital investment, or a reasonable return on his capital.
Character of the Government Action
-Was the planning commission’s decision to deny Oscar a permit decided improperly when examined in light of the Penn Central factor of considering the character of the government’s action?
-What constitutes character of the governmental action is not totally clear, although it apparently may be analyzed in the context of balancing the harm to the landowner with the benefit to the public.
Economic Impact: Diminution in Value
-Does the denial of a building permit, which will result in Oscar making no profit, cause a diminution in value so great that it should be a factor of determining that there was a regulatory taking?
-As stated in Penn Central, in determining whether governmental action went “too far,” we examine the extent of the diminution in value caused by the government’s action. The greater the diminution in value, the greater the chance the court will find a taking, although diminution in value alone is not insignificant.
Transferable Development Right
-Did granting a permit to build on Pinkacre qualify as a transferable development right that would minimize the finding of a taking?
-A Transferable Development Right arises when government denies a building permit on one parcel but allows a landowner to build elsewhere where, but for the Transferable Development Right, the landowner would not be allowed to build. The Supreme Court has held that Transferable Development Rights may well not constitute compensation if a taking has occurred, but Transferable Development Rights “undoubtedly mitigate” financial burdens on the landowner, and thus can minimize the finding of a taking.
Regulatory Taking: Economic Wipeout
-Was the planning commission’s refusal to grant a building permit to Oscar for the southern part of Greenacre (Southacre) an economic wipeout that would be considered a regulatory taking per se?
-Under Lucas, a regulatory taking per se includes an economic wipeout, that is, when the landowner is denied all productive or beneficial use.
Regulatory Taking: Conceptual Severance
-Assuming that there is no Lucas wipeout of Greenacre, is the total economic wipeout of a part of Greenacre, Southacre, a partial wipeout for which the city must compensate Oscar under Mahon’s conceptual severance approach?
-In Mahon, the Supreme Court held that a wipeout of a distinct and separate part of an estate itself could be the “denominator”. What is a separate and distinct part is questionable and not fully clear.
Improper Nuisance Control
-Whether or not there is a wipeout under Lucas or Mahon, can Oscar attack the city’s denial of the building permit on the grounds that the city’s fear of traffic increase is improper nuisance control?
-As stated in Lucas, while the state can use its police power to enact laws and regulations for the health and safety of its citizens and, in this regard, eliminate nuisance, which is never a taking, the nuisance must be a “common law nuisance”. Although the Supreme Court has never defined what a common law nuisance is, Lucas stated that the state could prescribe a use of property that was not part of the landowner’s title. Under Lucas, using one’s property to emit toxic fumes as in Hadacheck is never part of a landowner’s title, while building a house is part of title and, thus, never a common law nuisance
Regulatory Taking: Penn Central Ad Hoc Analysis
-Does the planning commision’s denial of a building permit for Oscar go “too far” and constitute a regulatory taking in light of the Penn Central ad hoc analysis?
-The Penn Central ad hoc analysis factors are: interference with distinct investment backed expectations; average reciprocity of advantage; character of the government’s action; and diminution in value
Penn Central Ad Hoc Analysis: DIBE
-Did the planning commission interfere with Oscar’s DIBE when he inherited the land and the planning commission denied him a permit to build a shopping center on Southacre?
-While the Supreme Court has never defined this term, it probably relates to his reasonable expectations, recouping his initial capital investment, or reasonable return on his capital.
Penn Central Ad Hoc Analysis: Character of the Government Action
-Was the planning commission’s decision to deny Oscar a permit decided improperly when examined in light of the Penn Central factor of considering the character of the government’s action?
-What constituted character of the governmental action is not totally clear, although it apparently may be analyzed in the context of balancing the harm to the landowner with the benefit to the public.
Penn Central Ad Hoc Analysis: Average reciprocity of advantage
-When the planning commission denied the permit because of traffic concerns, did Oscar receive an average reciprocity of advantage?
-Although it is not fully clear what the Supreme Court means by the term, apparently the term means that either (1) the landowner was not singled out for harsh treatment, or (2) that even while the landowner cannot develop his land as he chooses, he or she nonetheless has received a benefit from the governmental restriction, or (3) both.
Penn Central Ad Hoc Analysis: Economic Impact: Diminution in Value
-Does the denial of a building permit, causing Greenacre to be worth only $1k instead of $200k, result in a diminution in value so great that it should be a factor in determining that there was a regulatory taking?
-As stated in Penn Central, in determining whether governmental action went “too far,” we examine the extent of the diminution in value caused by the government’s action. The greater the diminution in value, the greater the chance the court will find a taking.
