Procedural Due Process: Property & Enemy Combatants

Question 1

What must Gov’t show to take private property:

Answer 1

For “public use” & for just compensation/ Typically fair market value.

Kelo: Gov need only show Taking was:

1) “reasonably necessary” to achieve the City’s intended public use, and
(2) For “reasonably foreseeable needs.”

Question 2

How has “public use” been interpreted:

2 Cases

Answer 2

Public use = Public Purpose.

(Kelo v New London: Homes-taken and given to private developers- effort to increase jobs in the community.)

(Hawaii Housing Auth: Rationally related to a conceivable public purpose - do not need to be open to public.)

Question 3

When does a gov’t regulation amount to a taking for which compensation is owed:

Answer 3

Regulation Denying owner economically viable use of land = taking.
(South Carolina Coastal: P purchased 2 parcels of land - Can’t build home/ NO economical viable use =Taking.)

Temporary Denial of use = Maybe OK
(Tahoe-Sierra: 2-3 year moratorium on development while gov creates land-use scheme.)

Question 4

Conditional Building permits can amount to taking if:

2 step

Answer 4

Taking if:

1) NO “essential nexus” between the permit conditions and legitimate state interest, &
2) Condition doesn’t relate to the projected impact of the proposed development.

Nollan: Scalia - nexus - Taking.
Condition (path to beach) fails to further justified end (seeing beach from road) because rebuilding home didn’t change access.
If permit condition doesn’t serve same gov purpose as the development ban= restriction not valid regulation of land use.

Dolan: added 2nd step
Condition must relate to curing the harm that will be created by development.
(Permit to expand conditional upon bike path - to offset flooding and divert traffic.)
City didn’t explained why public greenway, as opposed to a private one, would prevent flooding. -Stevens

Question 5

Why are Landmarks not considered Gov’t taking:

Answer 5

Part of a comprehensive City-wide preservation scheme.

Penn Central v NY: (New Taking Test.)
Grand Central designated a landmark.
Not taking = Economic impact was not severe enough: Penn could continue with its present use - The regulation did not interfere with its reasonable investment-backed expectations.

Question 6

Is a Gov’t Physical presence a taking:

Answer 6

Any Permanent Occupation= Taking.
No matter how minor the interference or how important the gov’s interest.

Loretto v Teleprompter:
State required landlords to permit Cable to install facilities in buildings.
Didn’t restrict owners use or reduce value.