Midterm Vocab

Question 1

Remand

Answer 1

When a higher court sends back a case to a lower court with instructions about further proceedings

Question 2

Appellant

Answer 2

Party who applies to a higher court for a reversal of the decision of the lower court

Question 3

Police Power

Answer 3

The authority to take actions to preserve and protect the safety, health, welfare, and morals of the community

Question 4

Due Process

Answer 4

Fairness. The idea that laws and legal proceedings must be fair.

Question 5

Injunctive relief

Answer 5

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)

Question 6

Eminent Domain

Answer 6

The power of government to take private land for public use, with or without permission.

Question 7

Inverse Condemnation

Answer 7

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.

Question 8

Regulatory Taking

Answer 8

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.

Question 9

Categorical Takings

Answer 9

(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

Question 10

Nuisance

Answer 10

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

Question 11

5th Amendment

Answer 11

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.

Question 12

14th amendment

Answer 12

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.

Question 13

Average Reciprocity of Advantage

Answer 13

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.

Question 14

Just Compensation

Answer 14

Fair payment for private land taken for public use. Generally fair market value or what a willing buyer would give to a willing seller.

Question 15

Transfer of Development Rights

Answer 15

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

Question 16

As-applied challenge

Answer 16

An ordinance is challenged as being unconstitutional under particular circumstances and applied to a certain case.

Relevant cases:
Nectow v. Cambridge

Question 17

Facial Challenge

Answer 17

Attack the validity of a regulation as a whole, rather than as applied to a specific circumstance.

Relevant cases:
Euclid v. Ambler

Question 18

Essential Nexus

Answer 18

Refers to a connection. Is the means of restriction justifiable in light of the right being restricted?

Question 19

Rough Proportionality Test

Answer 19

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.

Question 20

Exaction

Answer 20

Requirement to dedicate land for public use, allow public access, or pay a fee in lieu of.

Question 21

Penn Central Test

Answer 21

Based on:

1) Extent of the dimunition of value
2) Denial of distinct, investment backed expectations
3) Character of the governmental action

Question 22

Issues to look for in a case

Answer 22

1. Is there a valid public purpose?
2. Are the means reasonably related to the ends?
3. Is there a taking?
4. Are there other constitutional issues (e.g equal protection, 1st Amendment, etc.)
5. Is the zoning done “in accordance with a comprehensive plan”?

Question 23

Per-se taking

Answer 23

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

Question 24

Temporary taking

Answer 24

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.