Final Exam Flashcards
What is substantive due process?
Whether the government’s deprivation of a person’s property is justified by a sufficient purpose
- has to do with the rights that citizens has from government interference
- did the government act irrationally
- could be ‘fairly debatable’
*ref:https://www.law.cornell.edu/wex/procedural_due_process
What is procedural due process?
Whether the government has followed the proper procedures when it takes away property (dealing with property for this class)
- procedural due process is guaranteed by the 5th & 14th Amendments of the U.S. Constitution
- has to do with the procedures the government must follow
*ref:https://www.law.cornell.edu/wex/procedural_due_process
What is rational basis review/test?
The rational basis test is a judicial review test that courts use to determine the constitutionality of a statue or ordinance.
- must have a legitimate state interest, and there must be a rational connection between the statute’s/ordinance’s means and goals
- but it doesn’t necessarily need to ‘bear teeth’
*ref:https://www.law.cornell.edu/wex/rational_basis_test
How many types of review tests are there?
There are three review tests: rational basis, intermediate scrutiny, and strict scrutiny. Intermediate and strict scrutiny tests are considered more stringent than the rational basis test.
When is rational basis review applied?
The rational basis test is generally used in cases where no fundamental rights or suspect classifications are at issue.
What is strict scrutiny?
Strict scrutiny is often used by courts when a plaintiff sues the government for discrimination.
Strict scrutiny will often be invoked in an equal protection claim. For a court to apply strict scrutiny, the legislature must either have passed a law that infringes upon a fundamental right or involves a suspect classification. Suspect classifications include race, national origin, religion, and alienage.
*ref:https://www.law.cornell.edu/wex/strict_scrutiny
What is equal protection?
The Fifth Amendment’s Due Process Clause requires the United States government and state governments to practice equal protection.
Equal protection forces a state to govern impartially—not draw distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective.
It is important to acknowledge that a government is allowed to discriminate against individuals, as long as the discrimination satisfies the equal protection analysis.
What was the Nollan case and what are the takeaways?
The Nollan’s had beachfront property in California where they had a small ‘shack’ so to speak that they wanted to tear down and build something new. In the permitting process to do this, the local gov responded that they’d approve with the condition that the Nollans agree to allow an easement across the beach on their property so people could publicly access it to walk from the public beach on either side of their property.
Court rules that the easement is a permanent physical takings there is no logical connection (nexus) between requiring the easement and approving the building permit.
What is the Dolan case and what is the key takeaway?
Dolan wanted to expand her plumbing and electric supply store. The city conditioned approval of her store expansion on dedicating part of her property for storm drainage and for a pedestrian/bicycle pathway.
The court ruled that the conditions were related to the public concerns that could justify a permit—but the conditions were not sufficiently proportionate. The majority states, “…the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”
What is the Nollan/Dolan test?
1) Are the conditions related to the underlying concerns that justify denying a permit?
–> If not: this is a takings
2) If so, are the exactions proportional to the concerns?
–> If not: this is a takings
The rule is: Exactions must be both related to, and roughly proportional to the burdens being created by the development/developer.
What’s the take-away from Koontz?
Koontz wanted to develop a small part of his much larger property but needed permission from Water Management company. They replied that he could in exchange for approval Koontz could either reduce the size of the development or pay to improve another par of the wetlands. Koontz did neither and sued.
Takeaway is that the unconstitutional conditions doctrine from Nollan and Dolan applies to money as well as to outright expropriations (expropriation: the action by the state or an authority of taking property from its owner for public use or benefit) of land.
What is a community benefits agreement?
A CBA is a legally enforceable contract between a coalition of community-based organizations and the developer of a proposed project.
A CBA is an economic empowerment mechanism by which community organizations and representatives can negotiate directly with developers for the benefits most important to them – shaping urban development projects to improve the lives of the low-income residents and residents of color who bear the burdens of systemic inequities and are typically excluded from or harmed by such projects.
Two parties in the contract, neither of which are a government
What is eminent domain?
A tool of the government; a way that the government can assemble parcels for a legitimate public use.
Allowed under fifth amendment as long as it satisfies the public use requirement and just compensation
What was the outcome/take-away of the Tahoe-Sierra case?
A temporary takings is not a takings
What is the outcome/take-away from Nectow?
Nectow is an example of an as-applied challenge
Nectow had a lot that was zoned residential in a very industrial area; the law (the zoning) as applied to Nectow’s property would not have promoted health, safety or general welfare by remaining zoned residential; as applied, the law (zoning) was irrational.
