Environment

Question 1

Environment: 3 Factor Penn Central Test for determining whether a government regulation is a “taking”

Answer 1

(1) Economic Impact
- Denominator is the entire parcel, not specific segments
- Even 75% and 87.5% diminutions have been at times found to not be takings

(2) Investment-Backed Expectations
- Will owner be able to recover $ invested?
- Is ongoing use permitted?

(3) Character of govt. action
- Permanent or temporary physical occupation
- Regulation confers benefit/prevents harm to public

Question 2

Environment: Taking Summary

Answer 2

A regulation being a “taking” means that compensation is required when it is tantamount to physical seizure of property
- But not when merely regulation pursuant to the police power to protect the public health, safety, welfare, or morals

• Mugler: State law banning alcohol not a taking of a brewery
• Hadacheck: Banning of brick factory making smoke was not a taking
• Penn Coal: Public nuisance limit on takings

Question 3

Environment: 3 Categorical Tests for Takings per se

Answer 3

Taking will always be found if Govt. regulation is a:
1. Permanent Physical Occupation

2. Loss of all economically beneficial or productive use of land unless justified by Background principles of property or nuisance law; or
3. Exaction with no essential nexus to a legitimate state interest; or lacks proportionality to the impacts of the project