Eminent Domain II & III Flashcards
What is the balancing test for regulatory takings?
If a 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
Under the balancing test, what is the diminution in value case?
A very large reduction in the value of regulated land may be a taking
Under the balancing test for regulatory takings, what is the reasonable return on investment case?
If the landowner is left with a reasonable return on his investment, even in the presence of the governmental regulation, a taking has not occurred
What is the first categorical rule for regulatory takings?
A permanent physical occupation or invasion by the government is a taking
-A taking also occurs when the government allows a third party to permanently invade an individual’s property
-Note that this is a categorical rule for regulatory takings – i.e., this situation creates a taking per se. No balancing test is applied
What is the second categorical rules of regulatory takings?
The complete economic wipeout. This occurs when the given regulation deprives land of all economically beneficial uses.
-This is the second categorical rule - i.e., this situation creates a taking per se
What is the third categorical rule of regulatory takings?
Under the police power, states can regulate common law nuisances without paying just compensation to the land owner.
-The regulation of common law nuisances does not implicate the Takings Clause
What are the two remedies for a regulatory taking?
If the landowner succeeds with its implicit takings claim, the government must either:
-compensate the owner while continuing the regulation; or
-terminate the regulation and pay the owner for damages that occurred while the regulation was in effect
What is the purpose of subdivision controls? Where does the subdivision control power of government come from?
Subdivision controls are used to regulate and structure previously undeveloped land
-The subdivision control power of government comes from the police power
What is the procedure for the government’s exercise of subdivision control power?
The procedure for the government’s exercise of subdivision control power is to require landowner who wish to subdivide their land into two or more lots to file a plat OMG COME BACK
What is a plat?
a map or drawing of the way in which the land will be subdivided
-normally plats show the lot lines, roads and easements, UGH
Land use control authorities implement their subdivision control power by refusing to approve plats unless certain conditions are met
In deciding whether to approve a plat, what are technical requirements?
Technical requirements relate to the physical format and content of the plat
In deciding whether to approve a plat, what are exactions?
Exactions are those amenities that government seeks in exchange for granting permission to build
What is the constitutional test to determine whether or not an exaction is a taking?
-Left unchecked, exactions could become tantamount to takings without just compensation
-Thus, the government’s demands must be reasonably related, both in nature and scope, to the impact of the proposed development (“essential nexus” test). If they are not, the exactions are unconstitutional
