Regulatory Takings

Question 1

What is a regulatory taking?

Answer 1

The government is regulation to prevent some harm but the regulation has the effect of a taking

Question 2

True or False: a regulation that prevents a common law nuisance is not a taking

Answer 2

True. This is the rule from Hadacheck

Question 3

Inverse condemnation: what is it?

Answer 3

A regulatory taking at the state level

Question 4

Rule from the Mahon case

Answer 4

General principle that government action can be a taking. Brandeis dissent gives the property as a whole principle

Question 5

What is the “property as a whole” principle/analysis?

Answer 5

Property cannot be severed into individual components and evaluated separately when evaluating value diminution

Question 6

What are the Penn Central factors?

Answer 6

1) nature of government action
2) economic effect of invasion to plaintiff
3) extent regulation interferes with investment in land

Question 7

True or False: All of the Penn Central factors must be satisfied for regulation to be a taking

Answer 7

False. You only need two out of three

Question 8

Explain what the Penn Central factors mean

Answer 8

1) is there a physical invasion. Physical invasion=more chance of taking
2) self-explanatory. Can use before and after test. Greater the diminution, more likely taking
3) interference with investor backed expectations, how much interferes with future land use

Question 9

What is the rule of Lorretto?

Answer 9

A permanent physical invasion is a taking

Question 10

What is the exception to a Loretto taking?

What is the exception to the exception?

Answer 10

If government is using a permanent physical easement, not a taking.

If they exceed what is allowed under the easement, it becomes a taking again

Question 11

Rule from Lucas

Answer 11

A 100% reduction in value is a taking

Question 12

Exception to Lucas taking

Answer 12

If regulation is abating a common law nuisance, not a taking

Question 13

True or false: can allege a taking in court before a final administrative decision

Answer 13

False. The rule from Williamson holds that you must have a final admin decision before you can sue for a taking

Question 14

True or False: you must go to state court before you can go to federal court

Answer 14

False. Rule form Knick

Question 15

What is the rule from the San Remo case?

Answer 15

Claim preclusion. If you lost in state/federal court, you cannot allege a taking in the other. Not guaranteed two bites at the apple in a forum of your choice

Question 16

Other remedies for a taking

Answer 16

1) Euclid zoning challenge-arbitrary and unreasonable

2) appeal admin decision for abuse of discretion. Must have been supported by facts/findings