Regulatory Takings

Question 1

Regulatory Takings

Answer 1

• concept that one is achieving by regulation what would otherwise require eminent domain

Question 2

Pennsylvania Coal Co. v. Mahon- Facts

Answer 2

• initially, surface owners have right of subjacent support, but can waive right in deed conveying subsurface mineral rights
• PA then passes Kohler Act -> says unlawful to mine coal in such a way as to threaten any structure used for human habitation
• PA Coal Co says taking - they can no longer mine coal under Mahon’s house even though could’ve removed it under the deed executed by Mahons’ predecessor

Question 3

Pennsylvania Coal Co- Decision

Answer 3

• SCOTUS finds for coal co - says if regulation “goes too far” it will be recognized as a taking (hints at ad hoc balancing test)

Question 4

Pennsylvania Coal Co - Factors for Evaluating Regulatory Takings

Answer 4

• extent of diminution of value
• whether state seeks to regulate what would be seen as a public nuisance
• whether statute affords rough reciprocity of advantage by restraining all property owners in a way that benefits each

Question 5

Regulatory Takings and Diminution of Value

Answer 5

• courts usually measure diminution of value against denominator of aggrieved party’s entire property

Question 6

Penn Central Transportation Co v. City of New York - Facts

Answer 6

• Penn Central wants to build tower over Grand Central (designated a landmark)
• Penn submits two versions of tower to Landmarks Preservation Commission for approval ->commission denied request for permission to build tower
• Penn doesn’t seek review of the decision, just challenges it as taking of property without just compensation

Question 7

Penn Central - Procedural Posture + Decision

Answer 7

• Penn succeeds in trial court, but loses in appellate division + NY Court of Appeals
• SCOTUS also says no taking

Question 8

Penn Central - Factors for Regulatory Takings

Answer 8

• the extent of diminution in value caused by the regulation
• whether the regulation interferes w/ reasonable investment-backed expectations
• the nature of the government action, in particular whether it causes a physical invasion of the property or merely adjusts “the benefits + burdens of economic life to promote the public good”

Question 9

Zoning and Regulatory Takings

Answer 9

• Euclidean zoning essentially gets a free pass on regulatory takings -> if it looks like zoning, it’s less likely to be regulatory takings

Question 10

Penn Central - Rehnquist Dissent

Answer 10

• no nuisance (gov isn’t trying to prevent public nuisance, it’s trying to force public benefit)
• no reciprocity of advantage - idea that forcing certain owners to bear burdens that should be borne by the public as a whole

Question 11

Penn Central - Implications

Answer 11

• in general, even highly intrusive regulations that disproportionately affect a small number of owners will not qualify as a regulatory taking
• application of ad hoc test generally fatal to regulatory takings claims
• BUT some exceptions in certain “categorical” regulatory takings rules (Loretto and Lucas)

Question 12

Loretto v. Teleprompter Manhattan CATV Corp.

Answer 12

• SCOTUS held any permanent physical occupation of property by the government or a stranger acting w/ permission of the government is a taking (w/o regard to ad hoc)
• specifically, said NY statute that allowed cable television companies to string cable transmission wires on rental buildings w/o owner’s consent = taking (even though addition of cable service likely net benefit to landlord and tenants)

Question 13

Lucas v. South Carolina Coastal Council- Holding

Answer 13

• Court ruled that unless it prohibits something that would’ve been a nuisance at common law, a regulation that deprives the owner of all economically beneficial use of the property is a taking, w/o regard to Penn Central
• total wipeout rule

Question 14

1980s Trends in Regulatory Takings

Answer 14

• reflected by Lucas
• idea that the ad hoc Penn Central approach should be replaced by more hard-edged categorical rules, along the lines of Loretto
• scope of police power “exception” to the duty to compensate should be confined to common law nuisances

Question 15

Two Circumstances w/ Per Se Takings

Answer 15

• means doesn’t depend on case-specific inquiry
• where the regulation compels property owner to suffer permanent physical invasion of property (Loretto)
• where the regulation denies all economically beneficial or productive use of the land (Lucas)

Question 16

Wipeout Exception

Answer 16

• nuisance = exception to the wipeout rule b/c it means you wouldn’t have been able to perform the original use in the first place
• Kennedy concurrence in Lucas - says shouldn’t be limited to nuisance, should include environmental + other statutory regs in effect when owner acquires title

Question 17

Cedar Point Nursery v. Hassid - Background

Answer 17

• California Agricultural Labor Relations Board promulgated reg mandating access by union organizers for sole purpose of soliciting support -> unions can “take access” to employer’s premises for up to four 30-day periods -> means 2 organizers allowed in 1 hour before work, 1 during lunch, + 1 after work
• union must file notice, + organizers must remain in group areas + can’t disrupt operations
• employer interference would be unfair labor practice

Question 18

Cedar Point Nursery v. Hassid - Immediate Leadup

Answer 18

• Cedar Point complained of 5 am entrance by union organizers + union charged it w/ unfair labor practice
• employers sued for per se physical taking

Question 19

Cedar Point Nursey v. Hassid - Ruling

Answer 19

• Roberts majority - revised rule for per se physical takings to include “appropriations of a right to invade” property
• abrogation of the right to exclude even if not continuous

Question 20

Cedar Point - Exceptions

Answer 20

Court makes exceptions for:

• isolated trespass by government agents that are considered torts
• access rights consistent w/ background understandings of property law, like doctrine of necessity
• licenses that permit entry by government agents for inspections that are consistent with the nexus and rough proportionality rules in takings caselaw