Pg 23 Flashcards
What does it mean under the takings clause if the taking has deprived the plaintiff of all economic value?
The reasonable investment-backed expectation compared to the public need to regulate is so substantial that it outweighs the public interest in regulation
How do you approach a taking that is a lesser deprivation than “all economic value?”
Use the Penn Central balancing test: this is the public need for the regulation versus the interference with the owner’s reasonable investment-backed expectation plus the extent of the diminution in value. If the expectations are objectively reasonable and the change in law is unexpected and the diminution in value is substantial, then a taking has happened.
Things that are not takings: regulations that prohibit landlords from evicting tenants that don’t want to pay higher rent, forbidding private use of certain airspace, etc.
If you buy property and you hope that you will be able to sell it for 500% of the price that you bought for, is that an investment-backed expectation?
No, the only thing that has been thwarted is your hope, so that doesn’t count
What is involved in the Penn Central balancing test that is used for deprivations that are less than a taking all of the economic value of the property in the taking?
Consider:
– the economic impact of the regulation on the claimant, the extent of the interference with investment-backed expectations
– the character of the governmental action: physical occupation of the property or just affecting property interests
– adjusting benefits or burdens of economic life to promote a common good
– extent of the diminution in value
If a zoning ordinance is enacted after you buy land, is that a taking?
No
What are the major questions to ask on an essay for a taking?
– Has the public, government, or a government agent physically used or occupied something that belongs to the plaintiff?
– What is the size of harm or the degree that the property has been devalued? Is the plaintiff’s loss outweighed by public gain?
– Has the plaintiff sustained any loss besides restriction of his liberty to do an activity that is harmful to others?
What are different times that just compensation is needed for a taking?
– Physical occupation of the property by the government
– government transferring the right to occupy all or part of the property from one owner to another
– government actions that damage the property
– total regulatory taking
– Penn Central taking
– land-use exaction
What is a total regulatory taking?
When government regulations like zoning reduce the value of the land to zero. At that point the government must pay.
If the government restricts the use of property in a way that seriously diminishes its value, the court determines whether a taking has happened by balancing the nature and extent of the harm to the investment-backed expectation of the owner versus the nature of societal interests that are promoted by the government action
What is eminent domain?
Authority to take private property for public use
What types of government have the power of eminent domain?
Both federal and state
Would these things would be considered a taking? Set back ordinances, requiring coal pillars be left in place to stop mine subsistence, parcel of land being required not to be filled, etc.?
No
Does the size of the portion of the land that has been taken matter when it comes to taking?
No, when the government permanently or physically occupies real property, there is a taking to the extent of the occupation
The government must pay just compensation for total regulatory taking except when what?
When nuisance or a property law independently restricts the plaintiff’s intended use of the property, as well as emergencies, judicial process resulting in forfeiture because of criminal activity, government prohibits business from excluding people based on discrimination, etc.
In emergencies what can the government do with private property?
Can take and destroy private property and doesn’t have to compensate the owner.
Ie: military actions during war: army destroyed the plaintiff’s oil refinery in the Philippines to prevent the Japanese from getting it. They didn’t have to pay compensation because the destruction of property during battle is a cost borne by individual owners
If there is an order to destroy all infected cedar trees close to an apple orchard, would that be a compensable taking?
No, because apple production is an important activity and cedar trees are minimally important, so this would count as an emergency action where the government can take and destroy private property and doesn’t have to compensate the owner
