Legislative Land Use Controls: Zoning and Eminent Domain Flashcards
Zoning: main rule (when it is valid)
ZONING LAW MUST BE RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT INTEREST
Zoning definition
A method in which a municipality or other tier of government divides land into zones each of which has a set of regulations for use or development that differs from other zones
Zoning does not require consent from those governed
Zoning can prevent harm before it occurs
Village of Euclid v. Ambler Realty (zoning)
Rule of Law
Municipal zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Gov usually win
Facts
Ambler Realty Co. (Ambler) (plaintiff) owned land in the Village of Euclid (Euclid) (defendant), a largely residential suburb of Cleveland, Ohio. In 1922, Euclid enacted comprehensive zoning ordinances and created a board of zoning appeals charged with enforcement. The regulations created different districts based on the class of use, including purely residential, mixed use, commercial, and industrial. As a result of the ordinance, Ambler’s land was partitioned in terms of the types of uses that were permissible on it. Most notably, portions of Ambler’s land were zoned in such a way as to prohibit the development of industry. Ambler brought suit against Euclid, alleging that the zoning ordinance violated the Fourteenth Amendment of the United States Constitution, as well as the Ohio Constitution, by depriving Ambler of liberty and property without due process. Specifically, Ambler argued that the ordinance significantly reduced the land’s value and deterred potential buyers. Euclid moved to dismiss on the ground that the zoning regulations had not yet been enforced against Ambler, because Ambler had not applied for any building permits. The motion was denied. The district court held that the ordinance was unconstitutional and enjoined its enforcement. Euclid appealed to the United States Supreme Court.
Issue
May cities and municipalities constitutionally pass zoning regulations?
Holding and Reasoning (Sutherland, J.)
Yes. Euclid’s zoning ordinance is constitutional. Zoning restrictions are unconstitutional if “clearly arbitrary and unreasonable” and without “substantial relation to the public health, safety, morals, or general welfare.” The power to pass zoning regulations derives from states’ police powers. Zoning ordinances are a relatively recent development, created to deal with the difficulties created by increasing urban populations. As a result of this, the application of constitutional guarantees must have some “elasticity.” That said, the propriety of a zoning ordinance depends upon the situation. The common law of nuisance is built upon the maxim that one should not use her property to harm another’s use of his, and that principle provides guidance for determining the scope of the power to regulate property use. There is no real doubt that localities have the power to pass these types of regulations. Ordinances restricting industrial use of property may be overinclusive, going beyond dangerous and offensive uses and forbidding the innocent as well, but this is unavoidable. Such ordinances do not, as stated in Purity Extract Co. v. Lynch, 226 U.S. 192 (1912), “pass . . . the bounds of reason and assume . . . the character of a merely arbitrary fiat.” Thus, they are generally valid. A more difficult question arises as to the validity of purely residential districts that exclude all commercial activity. More state courts seem to sustain such ordinances than overturn them. Further, experts generally agree that such zoning laws make fire and accident prevention easier, reduce noise, and preserve residential areas. Such regulations are thus valid so long as not arbitrary and unreasonable or without connection to the general welfare. In this case, Euclid may be restricting the current course of industrial development from Cleveland, but it is acting well within its rights as a separate municipality. Euclid has the right to exercise its police powers to separate industrial development from its residential sector. Further, there was no need for Ambler to wait until a building permit had been denied to challenge the ordinance. The zoning restriction scheme here may well prove to be unconstitutional as applied, but it is constitutional on its face. The judgment of the court below is reversed.
Eminent Domain (also called condemnation or inverse condemnation)
Eminent domain is the power of the government to take property for public use without the consent of the owner. It can be exercised by public officials or by private parties to whom the power has been delegated.
We allow government to exercise this for their objectives and don’t want private interests to get in the way
5th amendment takings clause
nor shall private property be taken for public use without just compensation
Taken element only comes up in inverse condemnation cases
Eminent Domain:Three ways in which a government entity can prove its takings satisfy public use requirement:
Title Theory: the public use requirement is satisfied if the land taken is given to the government
Exclusion theory: the public use requirement is satisfied if the land taken is given to a private individual with the condition that the public cannot be excluded.
Public Purpose (Kelo v. City of New London)
Public Use triangle:
Economic development/ stimulation
Fix blight
Breaking up land oligopolies
Public use controversy:
Kelo v. City of New London (Eminent Domain)
Rule of Law
**A state’s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a “public use” under the Fifth Amendment if it is rationally related to a conceivable public purpose. = third purpose added
Deliberate plan and reasonable belief it will work out **
Facts
In 2000, the City of New London, Connecticut (defendant) approved a new development project that involved using its eminent-domain authority to seize private property to sell to private developers.
The city stated that the purpose of this exercise of eminent domain was to create new jobs and increase tax revenues from the sale of property.
was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.”
In 1998, the City’s unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920.
the State authorized a $5.35million bond issue to support the NLDC’s planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park.
Upon obtaining state-level approval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area.
In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” the plan was also designed to make the p. 1025City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.
Susette Kelo (plaintiff) had lived in a home in the New London area since 1997. Wilhelmina Dery (plaintiff) was born in her New London home in 1918 and had lived in the home with her husband, Charles Dery (plaintiff), for roughly 60 years. The property owned by Kelo and the Derys was in one of the areas scheduled to be condemned by the city’s development project.
Nine private property owners, including Kelo and the Derys (plaintiffs), brought suit in Connecticut state court to challenge the project on the grounds that it violated the “public use” requirement of the Fifth Amendment.
PH:
After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space).
11 people were in 4a and 4 people were in parcel 3
State supreme court: the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions.
Issue
May a state exercise its eminent-domain authority to condemn private property and sell it to private developers for the purpose of creating new jobs and increasing tax revenues without violating the “public use” requirement of the Fifth Amendment?
Holding and Reasoning (Stevens, J.)
Yes. The city may validly exercise its eminent-domain authority to take private property and distribute it to private developers without violating the Fifth Amendment’s public-use requirement. In Berman v. Parker, 348 U.S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a state’s use of eminent domain to take property from private individuals and redistribute that property to other private individuals was upheld, because the overarching purpose of the eminent-domain programs is to promote the public welfare in some way. State legislative judgments about the prudence of programs providing for the public good in these precedent cases are entitled to great deference from the judicial branch. In the same way, in the present case, the State of Connecticut’s legislative judgment that the eminent-domain program at issue is necessary to promote public benefits, such as increased jobs and tax revenue, is entitled to great deference. Relying on previous decisions, the Connecticut Legislature’s plan unquestionably serves a public purpose, satisfying the public-use requirement of the Fifth Amendment.
Kelo’s argument, that a true public use cannot confer only economic benefits on the public, is rejected—an economic benefit conferred on the general public can still constitute a viable public purpose. Additionally, Kelo’s argument that the proposed public benefit needs to be “reasonably certain” to occur is rejected as well. The deference afforded to reasonable state legislative judgments prevents the judiciary from having to make this inquiry. The City of New London’s eminent-domain program is upheld as constitutional, because it furthers a public purpose. The decision of the state supreme court is affirmed.
Does a governmental entity have to physically invade your property to destroy some of your property rights?
+ “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be
injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking
or an appropriation of property for the public benefit.”
Inverse Condemnation
initiated by landowner because some property right has been interfered with (determine if it is a taking: 3 factors takings analysis from Penn)***
Pennsylvania Coal v. Mahon
Rule of Law
While the use of property may be regulated, overregulation will be considered a taking.
Facts
In 1878, Pennsylvania Coal Co. (defendant) conveyed the surface of a plot of land it owned to Mahon (plaintiff). In this transfer, Pennsylvania Coal retained the right to mine underneath the property, and an explicit provision in the deed stated that Mahon was taking the land subject to any risks associated with mining beneath the land.
In 1921, the Commonwealth of Pennsylvania enacted a statute (Kohler Act) preventing coal mining that could possibly affect the integrity of any surface land. Mahon then sued Pennsylvania Coal, arguing that the new state law barred Pennsylvania Coal from mining under the property.
The trial court concluded that Pennsylvania Coal would damage the surface of the land if it kept mining, but the court declined to issue an injunction on the ground that the statute was unconstitutional.
Mahon appealed to the Pennsylvania Supreme Court, which concluded that the statute was a valid exercise of the state’s police powers and ordered judgment be entered in Mahon’s favor. The Pennsylvania Supreme Court then sent the case to the United States Supreme Court by writ of error, which was granted.
Issue
May a statute that promotes overregulation of property be considered a taking?
Holding and Reasoning (Holmes, J.)
Yes. Pennsylvania Coal is permitted to continue its mining operation, because Mahon took the land subject to the risks associated with mining.
The Pennsylvania statute attempting to interfere with this arrangement is a taking. While the use of property may be regulated, overregulation will be considered a taking.
A state may pass a law in the valid exercise of its police powers that has incidental impact on property values, but when the law causes sufficient diminution in property value, the state must take the land by eminent domain and provide compensation. It is a question of degree. Deference will be shown to the legislature’s judgment, but impacted parties may challenge the constitutionality of the law at issue.
Here, Mahon was fully aware of the mining operation under the land he was purchasing. Furthermore, Mahon and Pennsylvania Coal agreed that Mahon would take the land subject to the risks associated with mining.
The statute does not seek to correct a public nuisance, because only one home is involved, and it does not intend to protect personal safety, since Mahon knew the risks involved in purchasing the land.
Thus, the statute does not fall within the government’s police power. Instead, it should be considered a taking. The state exceeded its police powers and rendered coal mining commercially impracticable. Therefore, the Commonwealth of Pennsylvania may not force Pennsylvania Coal to cease its operations without just compensation.
The Pennsylvania Coal test says, in essence, that when governmental regulation of a use that is not a nuisance works too great a burden on property owners, compensation must be paid if the regulation is to remain in effect. Notice, though, that the regulation itself might provide implicit compensation by way of what Justice Holmes called, on page 1056, “an average reciprocity of advantage.” (balancing of interest: suggests that the government doesn’t always need to compensate for every regulatory burden, especially when the burden is part of a general public benefit that is shared.)
Diminution in value. The rule of decision in Pennsylvania Coal is usually referred to as the diminution-in-value test. What is its point? Is it concerned with efficiency, with justice, or with both?
Can the government take your property without physically invading it?
+ “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it
will be recognized as a taking.” What distinguishes this from zoning? This rule provides no reciprocity of advantage
PENN CENTRAL TRANSPORTATION COMPANY v. CITY OF NEW YORK (takings 3 factors)
Rule of Law
In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments, courts should consider the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and the character of the government action involved in the regulation.
Facts
In 1965, New York City (defendant) enacted the Landmarks Preservation Law to enable the city to designate certain buildings and neighborhoods as historical landmarks. Penn Central Transportation Co. (Penn Central) (plaintiff) owned Grand Central Terminal in New York City, which was designated as a historical landmark under the law. In 1968, to increase its income, Penn Central leased the airspace above Grand Central Terminal for 50 years to UGP Properties, Inc. Penn Central expected the lease to provide it with millions of dollars of additional income every year. Penn Central and UGP then submitted two proposals for building designs to the New York City Commission (commission) and applied for permission to construct an office building above Grand Central Terminal. After lengthy hearings, the commission denied this request on the grounds that Grand Central Terminal was a historical landmark. Penn Central brought suit in the New York Supreme Court against New York City alleging that the commission’s application of the Landmarks Preservation Law, which denied its rights to build an office building above Grand Central Terminal and receive revenue from the building, constituted a taking of the company’s property without just compensation as required by the Fifth and Fourteenth Amendments. The New York Supreme Court granted an injunction to Penn Central but did not provide damages. The state court of appeals reversed, holding that the Landmarks Preservation Law furthered an important public purpose. Penn Central appealed to the United States Supreme Court.
Issue
Whether the Landmarks Preservation Law as applied to Penn Central constitutes a taking for public use of the company’s property that requires the payment of just compensation under the Fifth and Fourteenth Amendments.
Holding and Reasoning (Brennan, J.)
No. Precedent decisions have been essentially ad hoc, factual inquiries based entirely on the facts of an individual case, with no precise standard articulated for when principles of fairness and justice require the payment of just compensation for a taking. In response to its frustration over this lack of standards, a new multi-factor test is articulated for determining when a taking requires the payment of just compensation to a property owner. When determining whether a state regulation constitutes a taking of private property for public use with the requirement of just compensation under the Fifth and Fourteenth Amendments, courts should consider the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and the character of the government action involved in the regulation. Additionally, precedent decisions often do not find a taking when private property is destroyed to promote the health, safety, and general welfare of the public. Applying these principles to the present case, Penn Central’s overall assertion that any economic restriction imposed on the use of its property under the Landmarks Preservation law constitutes a taking that requires just compensation is rejected. The economic impact of the law on Penn Central does not constitute a total diminution of the value of its property, as it can still generate revenue from renting out portions of Grand Central Terminal. It is merely prohibited from gaining additional revenue from leasing the airspace rights above the building. Penn Central’s investment-backed expectations are not significantly impaired by the regulation, as the revenue from developed airspace was not an option when Penn Central first invested in the property. Finally, the governmental invasion caused by the regulation is not physical (an invasion that is almost always upheld as a taking.) Rather, the government “invasion” in the present case is merely a prohibition on further development of Penn Central’s property. Additionally, a significant public interest in light space was furthered by regulation that prohibits the development of airspace above the terminal. For these reasons, the Landmarks Preservation Law is upheld, and the judgment of the New York Court of Appeals is affirmed.
Penn 3 Factor Takings Analysis and 2 per se exceptions
Takings analysis:
**1. characteristics of the governmental action **
Physical or not (flooding case it would be physical because of the water)
**2. the extent regulation has interfered with distinct investment backed expectations **
Primary use interfered with
**3. economic impact of the regulation on the owner/claimant **
Present use of the property
Reciprocity? (mutual benefit)
**Exceptions, per se categorical rule **
1: Loreto: permanent/temporary
2: Coastal: no Penn analysis, if regulation denies all economically beneficial or productive use of the land
If preexisting limitations on title, there may not even be a property interest for the owner
Loretto v. Teleprompter Manhattan
Rule of Law
A permanent physical occupation authorized by government is a taking requiring the payment of just compensation without regard to the public interests that it may serve or the fact that it has only a minimal economic impact on the property owner.
Facts
Loretto (plaintiff) purchased a five-story apartment building in New York City. Under New York law, a landlord must permit a cable television company to install its cable facilities upon his property.
Teleprompter Manhattan CATV Corp. (Teleprompter) (defendant) installed cable facilities that occupied portions of Loretto’s roof and the side of her building. Prior to 1973, Teleprompter routinely obtained permission from building landlords to install its cable facilities. In 1973, New York passed a law that prohibited interference by a landlord in the installation of cable and the acceptance of payment from a cable company.
Loretto brought suit in New York state court alleging that the installation of cable facilities on her building by Teleprompter was an unconstitutional taking of her property. The New York trial court upheld the constitutionality of the New York law, and the New York Supreme Court affirmed. The decision was affirmed by the court of appeals, and Loretto appealed to the United States Supreme Court.
Issue
Does a minor but permanent physical occupation of an owner’s property authorized by government constitutes a taking of property for which just compensation is due under the Fifth and Fourteenth Amendments to the United States Constitution?
Holding and Reasoning (Marshall, J.)
Yes. Both precedent and historical circumstances support the rule that a minor but permanent, physical occupation of an owner’s property, authorized by government, constitutes a taking.
A permanent physical occupation requires compensation for the property owner because it is more serious and intrusive than either a temporary intrusion or an intrusion that merely restricts the use of property.
A permanent physical occupation requires payment of just compensation because it destroys the property owner’s opportunity to exercise three basic property rights: (1) the owner may no longer fully possess the property or exclude others from possessing it; (2) the owner can no longer exclude others from using his or her property and cannot make any personal nonpossessory uses of it; and (3) the owner cannot properly dispose of the property, because a permanent physical occupation typically strips the property of most or all of its economic value.
Applying these factors to the present case, the bolting of cable wires and boxes to the building, as well as the complete occupancy of space immediately above and upon the roof and along the building’s exterior wall, satisfies the test for finding a “permanent physical occupation” by Teleprompter of Loretto’s property. It does not matter in the present case that the area “taken” by the cable company is relatively small. The mere fact that cable equipment is permanently installed on the building by a third party with governmental permission means that the action constitutes a taking of Loretto’s property that requires just compensation under the Fifth and Fourteenth Amendments. The decisions of the lower courts are reversed.
Lucas v. South Carolina Coastal
Rule of Law
A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner, unless the economic activity prevented by the regulation is not part of the owner’s initial title or property rights when acquiring the property.
Facts
In 1986, David Lucas (plaintiff) paid $975,000 for two residential lots on the Isle of Palms in South Carolina. The lots consisted of beachfront property on which Lucas intended to build single-family homes.
In 1988, however, South Carolina enacted the Beachfront Management Act, which barred Lucas from building any permanent habitable structures on his two lots. Lucas brought suit against the South Carolina Coastal Council (defendant) in the South Carolina Court of Common Pleas on the grounds that the act constituted a taking of his property for a public use that required just compensation under the Fifth and Fourteenth Amendments. The court found that the act rendered Lucas’s property completely valueless and thus the application of the act constituted a taking of Lucas’s property that required payment of just compensation. It awarded damages, and the South Carolina Coastal Council appealed. The South Carolina Supreme Court reversed, and the United States Supreme Court granted certiorari.
Issue
May a state enact a regulation that results in the complete destruction of economic value of private property without paying just compensation to the owner?
Holding and Reasoning (Scalia, J.)
No. A common maxim that emerges from takings jurisprudence is that “while property may be regulated to a certain extent, if the regulation goes too far it will be recognized as a taking.” However, there is difficulty in applying this principle, because few standards exist to define what constitutes going “too far.” In seeking to define this terminology, precedent invalidates two discrete categories of regulations for going “too far,
” i.e., regulations that compel a property owner to suffer physical “invasion” on his property and regulations that deny all economically beneficial or productive uses of land. However, the application of the second category is troubling because there has never been an outline justified for this category of takings.
In the present case, applying the Beachfront Management Act to Lucas’s property constitutes a taking that requires payment of just compensation for the following reasons: total deprivation of beneficial use of property has the same effect as a permanent physical invasion of property that renders a landowner powerless to use the property; and regulations that leave a landowner without economically beneficial or productive options for use of his land carry with them the heightened risk that the private property is being pressed into some sort of public use, all the while disguised as a measure to mitigate public harm.
Regardless of whether the justification for providing just compensation for total economic takings is founded on the desire to provide a benefit or prevent a burden to the public, the detrimental economic effects on the property owner are enough to warrant providing him with just compensation. A new per se rule is suggested as a result. If a state regulation deprives private property of all economic value, that regulation constitutes a taking, and the owner of the property must be paid just compensation. An exception to this rule, however, exists for economic uses of private property not originally contemplated by the owner’s title or property rights when acquiring the property. In enacting this rule, there is also a prohibition on “noxious uses” of property found in the common law of nuisances. Applying these principles to the present case, the South Carolina regulation completely deprives Lucas’s property of all economic value, and he is thus entitled to just compensation (would not even apply penn because there is no balancing if it completely deprives. The decision of the South Carolina Supreme Court is reversed and remanded for consideration of whether Lucas’s desire to develop his property constituted a “noxious use” under the common law of nuisances.
- A regulation rendering the land worthless is just like an outright appropriation
- Land use regulations rarely erase all value. States will have the ability to regulate for the public good
- Without a rule, states could use regulation as a pretext for appropriating private property without just compensation
Exception: nuisance (not a taking if there could have been an injunction under nuisance)
Here, it was not established his beachfront houses would be a nuisance so reversed and remanded to determine if they would be
