Eminent Domain

Question 1

What is eminent domain?

Answer 1

A government’s inherent power, confirmed by the Fifth Amend.’s Takings Clause, to take private property for the public use in exchange for just compensation.

Question 2

What are two types of takings?

Answer 2

1. Physical - actual seizure of property
2. Implicit or Regulatory - the government restricts a person’s use of their property to the point of constituting a taking

Question 3

What is the procedure for physical takings (what happens before and after a condemnation action to take title to private property)?

Answer 3

The government is usually required to begin by attempting negotiated purchases. Failing acquisition by that means, the government will file a petition in court, followed by notice to all persons with interests in the property in question. If, after notice and opportunity to be heard, the taking is deemed constitutionally permissible, the government must pay the land-owner just compensation for the taking. Just compensation is measured by fair market value at the time of the taking.

Question 4

What are two possible readings of “public use?”

Answer 4

1. Narrow - the government owns or the public must have the right to use the condemned property
2. Broad - the condemnation must be for some public purpose

Question 5

How does the Court in German define “public use?”

Answer 5

“The concept of the public welfare is broad and inclusive. The value it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.”

Question 6

What is the test for “public use” in Midkiff.

Answer 6

“But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause”

Question 7

What was the holding in Kelo?

Answer 7

City of New London’s taking of petitioners’ property in order to revitalize an economically distressed area constituted a legitimate public purpose. There is broad latitude in determining what public needs justify the use of the takings power.

Question 8

What is the balancing test for regulatory takings?

Answer 8

If the government regulation of a use that is not a common law nuisance imposes too great a burden on a property owner’s reasonable investment-backed expectations, the government must provide just compensation

Question 9

Under the balancing test, what are the two cases?

Answer 9

1. the diminution in value case
2. the reasonable return on investment case

Question 10

What is the diminution in value case?

Answer 10

A very large reduction in the value of regulated land may be a taking.

Question 11

What is the holding in PA Coal?

Answer 11

The government regulation worked too great a burden on the coal company so just compensation must be paid for the regulation to remain in effect.

Question 12

In PA Coal, what does Justice Holmes mean by “average reciprocity of advantage?”

Answer 12

The aggregate amount of benefit that comes from a regulation is approximately equal to the amount of burden the regulation causes.

Question 13

In PA Coal, what does Justice Brandeis argue in dissent?

Answer 13

But restrictions imposed to protect the public health, safety, or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use.

Question 14

In PA Coal, what does Justice Brandeis say about the average reciprocity of advantage in this case?

Answer 14

But where the police power is exercised, not to confer benefits upon property owners, but to protect the public from detriment and danger, there is … no room for considering reciprocity of advantage

Question 15

In PA Coal, what is “conceptual severance?”

Answer 15

aka the denominator problem, the idea that losing 100% of part of an investment is not the same as losing some percentage of the whole investment.

Question 16

In PA Coal, how does Justice Holmes (holding) differ from Justice Brandeis?

Answer 16

Justice Brandeis believes that PA Coal didn’t lose 100% of the value of their coal, but only a percentage of their aggregated coal value since it coal still mine all the coal in the soil that would not cause the house to sink (i.e., the non-subsidence layers)

Question 17

Under the balancing test for regulatory takings, what is the reasonable return on investment case?

Answer 17

If the landowner is left w/a a reasonable return on his investment, even in the presence of the government regulation, a taking has not occurred.

Question 18

What is the holding of Penn Central?

Answer 18

There was no taking bc Penn Central had a reasonable return on its investment.

Question 19

In Penn Central, what does Justice Rehnquist argue in dissent?

Answer 19

A taking does not occur when there is “an average reciprocity of advantage.” It does not exist here so a taking occurred.
While zoning at times reduces individual property values, the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefitted by another. Here, however, a multimillion dollar loss has been imposed on just the appellants.