Midterm Vocab Flashcards
Remand
When a higher court sends back a case to a lower court with instructions about further proceedings
Appellant
Party who applies to a higher court for a reversal of the decision of the lower court
Police Power
The authority to take actions to preserve and protect the safety, health, welfare, and morals of the community
Due Process
Fairness. The idea that laws and legal proceedings must be fair.
Injunctive relief
When the court orders defendant to cease and desist activity that is causing nuisance as a solution, rather than awarding damages to plaintiff.
• Plaintiff’s losses are hard to monetize thus damages are inadequate
• Reasons not to grant an injunction: “balance the hardship,” if plaintiff’s economic losses are minor compared to those of the defendant and community at large (eg. Closing down a power plant would be costlier to community and operator than if it kept running to individual plaintiffs)
Eminent Domain
The power of government to take private land for public use, with or without permission.
Inverse Condemnation
When a property has been so over-regulated that the government may have well condemned it, so the term “inverse” condemnation. Often, an affected property owner will ask a court to force the government to commence condemnation proceedings.
Regulatory Taking
Government regulations so severe they prevent landowner form using property for any economically beneficial purpose. Function equivalent of taking of property for which compensation must be paid.
Categorical Takings
(1) Physical Occupation: government requires physical invasion of property (2) Total reduction of value: regulation deprives landowner of all economically beneficial use of property (3) Exaction: requirement to dedicate land for public use, allow public access, or pay a fee in lieu of
Nuisance
The unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another’s property without actual physical invasion or trespass
5th Amendment
Due process & takings clause. No person shall be deprived of life, liberty or due process of law; nor shall private property be taken for public use without just compensation.
14th amendment
Equal protection clause …nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Average Reciprocity of Advantage
Relative economic advantage that accrues to one party (defendant or plaintiff) compared with economic disadvantage of the other party or the public
The aggregate amount of benefit that comes from a regulation is approximately equal to the amount of burden the regulation causes.
Just Compensation
Fair payment for private land taken for public use. Generally fair market value or what a willing buyer would give to a willing seller.
Transfer of Development Rights
Allows landowners to transfer the right to develop one parcel of land to a different parcel of land. This technique can be used to protect historic buildings or preserve agriculturally or environmentally sensitive areas
As-applied challenge
An ordinance is challenged as being unconstitutional under particular circumstances and applied to a certain case.
Relevant cases:
Nectow v. Cambridge
Facial Challenge
Attack the validity of a regulation as a whole, rather than as applied to a specific circumstance.
Relevant cases:
Euclid v. Ambler
Essential Nexus
Refers to a connection. Is the means of restriction justifiable in light of the right being restricted?
Rough Proportionality Test
Test which stipulates that the burden the community places upon the landowner must be roughly proportional to the burden the landowner places on the community.
Exaction
Requirement to dedicate land for public use, allow public access, or pay a fee in lieu of.
Penn Central Test
Based on:
1) Extent of the dimunition of value
2) Denial of distinct, investment backed expectations
3) Character of the governmental action
Issues to look for in a case
- Is there a valid public purpose?
- Are the means reasonably related to the ends?
- Is there a taking?
- Are there other constitutional issues (e.g equal protection, 1st Amendment, etc.)
- Is the zoning done “in accordance with a comprehensive plan”?
Per-se taking
When circumstances force a landowner to endure a permanent physical occupation of their property. Examples: cable lines on roof, constant aircraft overhead.
Relevant cases:
Loretto v. Teleprompter of Manhattan
Temporary taking
When a temporary taking denies landowners use of their property, government must pay just compensation, even after occupation has ended.
Relevant cases:
First Evangelical Lutheran Church of Glendale v. County of L.A.
