Part Six: Constitutional Protection of Property Flashcards
What is the Takings Clause of the Federal Constitution?
“nor shall private property be taken for public use, without just compensation”
Competing freedoms both of which we care about but one will be denied in the favor of the other
Allows local state and federal entities to acquire private property involuntarily with just compensation (fair market value)
What is the significance of Pennsylvania Coal Co. v. Mahon (1922)?
The Court held that a regulation (PA’s Kohler Act) requiring coal companies to leave pillars to prevent subsidence was a regulatory taking because it destroyed the coal company’s right to mine those pillars—a property interest they had reserved by contract.
The regulation conferred a benefit on surface owners without reciprocal burden or compensation, violating the Fifth Amendment.
The case introduced the “too far” test and raised the denominator question: Is the relevant property interest the whole estate or just the coal left in pillars?
The majority treated it as a 100% loss of the pillar rights; the dissent argued that only ~3% of the total coal value was affected.
What are the policy implications of Pennsylvania Coal Co. v. Mahon (1922)?
Limits police power
- Institutional Competence
- Courts restrict the state’s ability to regulate for health and safety without compensation, potentially undermining the government’s ability to serve the public good. Also reflects skepticism about legislative overreach into property rights.
Elevates property rights
- Category: Fairness / Utility
- Promotes fairness to individual property owners by protecting investment-backed expectations. Also aims to maintain incentives to invest in and develop property, preserving economic utility.
Introduces uncertainty
- Category: Administrability
- The vague “goes too far” standard makes it hard for legislatures and courts to apply the law predictably, raising costs and complexity in both drafting and challenging regulations.
Encourages judicial scrutiny of regulation
- Category: Institutional Competence
- Shifts regulatory oversight to courts, empowering judges to second-guess legislative judgments on public welfare — raises questions about which institution is best suited to balance private and public interests.
Overlooks power imbalances in bargaining
- Category: Fairness
- Ignores the real-world inequality between a coal company and a worker in a company town, possibly entrenching exploitative arrangements and failing to protect vulnerable parties.
What is the denominator question in takings?
What is the relevant parcel of property (the “denominator”) against which the economic impact of a regulation is measured? A smaller denominator (just the affected portion) makes a taking more likely, while a larger denominator (the entire parcel) makes a taking less likely.
Coal: Affected portion
Penn Central: Entire parcel
What are the two kinds of takings?
- Physical Takings – When the government physically occupies or seizes property. Always requires just compensation.
- Regulatory Takings – When a regulation limits the use of property so severely that it effectively deprives the owner of economic use, even without physical appropriation.
What are the key principles of regulatory takings law from Mahon, Armstrong, and Penn Central?
- Mahon: A regulation that goes “too far” in diminishing property value is a taking requiring compensation.
- Armstrong: A taking occurs when a regulation forces some people alone to bear public burdens which, in fairness and justice, should be borne by the public as a whole.
- Penn Central: Courts assess takings claims by balancing factors:
1. Economic impact of the regulation
2. Interference with investment-backed expectations
3. Character of the governmental action
What is the significance of Penn Central v. City of New York (1978)?
The Court upheld a historic preservation law that blocked a 55-story tower atop Grand Central Terminal, finding no taking. It introduced a three-factor balancing test to decide regulatory takings:
1. Economic impact of the regulation
2. Interference with reasonable investment-backed expectations
3. Character of the government action
The Court rejected the view that loss of air rights alone triggered a taking, emphasizing that the parcel as a whole still had profitable use. The regulation was framed as harm prevention (preserving historic landmarks), not as unfair benefit-conferral. The case adopts a flexible, context-specific approach to the “too far” question.
What are the policy considerations in Penn Central v. NYC?
- Fairness:
1. Owner retained profitable use—no total economic wipeout.
2. Landmark laws apply broadly, not just to Penn Central—burden is shared. - Utility
1. Encourages preservation of culturally valuable sites for public benefit.
2. May discourage investment or development in landmarked properties. - Administrability:
1. Flexible 3-factor test allows nuanced, context-specific rulings.
2. Lack of clear standards creates unpredictability for owners and regulators. - Institutional:
1. Courts defer to local agencies on public value judgments like preservation.
2. Critics argue courts risk under-protecting property rights by over-delegating.
What arguments based on the “character of the government action” favor the government in regulatory takings cases?
- Promotes general welfare with reciprocal benefits (e.g., zoning, setbacks, height limits).
- Prevents harm to others (e.g., subsidence, alcohol, margarine).
- Resolves unavoidable land use conflicts (e.g., cedar vs. apple trees).
- Serves important regulatory goals, especially environmental ones (Murr).
What arguments based on the “character of the government action” favor property owner plaintiffs in regulatory takings cases?
- Regulation singles out individuals without reciprocal benefits (e.g., ESA, historic landmarking).
- Deprives owners of core property rights (e.g., right to exclude, devise, or earn interest).
- Regulation serves an unimportant or questionable goal (Murr).
What arguments based on reasonable investment-backed expectations favor the government in regulatory takings cases?
- Hopes or plans do not create vested rights (e.g., zoning changes).
- Regulation pre-dated investment.
- Regulation aligns with legal background norms and customs (Murr).
What arguments based on reasonable investment-backed expectations favor property owner plaintiffs in regulatory takings cases?
- Owner had “vested” rights based on actions taken (e.g., construction with permit).
- Regulation post-dated the investment, frustrating reasonable expectations.
What economic impact arguments favor the government in regulatory takings cases?
- Viable economic uses remain (if parcel is construed broadly).
- Impact is measured against the baseline of legitimate regulation (Murr).
What economic impact arguments favor property owner plaintiffs in regulatory takings cases?
- No or limited economic uses remain (narrow parcel-as-a-whole): Regulation wipes out viable uses, especially of the most valuable or developable part of the property.
- Severe diminution in value: Regulation causes substantial loss in market value or defeats reasonable investment-backed expectations.
