Takings

Question 1

Takings clause

Answer 1

requires just compensation when government takes private property for public use

Question 2

When does taking occur?

Answer 2

Physical invasion or regulation that goes “too far”

Question 3

Just Compensation

Answer 3

FMV (amount would sell on open market)

Temporary loss = compensated loss of going-concern value (bc unable to establish elsewhere)

Question 4

Takings Tests

Answer 4

1. Public Use
2. Per Se Taking
3. Penn Central Ad Hoc

Question 5

Public Use

Kelo test

Answer 5

public use = public purpose (public does not have to actually use)

Question 6

(2) Per se taking

Per se taking

Answer 6

Per se taking is automatically a taking

Deprivation of economic viability

Question 7

(2) Per se taking

Lucas test

Answer 7

regulation that deprives land of all economic value

Question 8

(2) Per se taking - Denominator Factors

Dependent on denominator

Answer 8

Owner’s uses and actions toward properties (used together?)
Treatment under law (lot lines? Zoning?)
Relationships (such as physical, functional, economic) between properties

Question 9

How should regulations that temporarily deprives of all economic viability should be analyzed?

Answer 9

Under ad hoc test (not per se taking)

Question 10

(2) Per se taking

Physical invasion

Answer 10

permanent physical occupation or regulation granting right to physically invade (right to exclude violated)

Exception: property open to public (what is considered open?)
Use ad hoc test

Exception: background principle already permits restriction

Exception: requiring access rights to participate in public program
Often for preventing public harm

Ex: have to do inspections if you want to sell open market

Question 11

Temporary or minor physical invasion…

Answer 11

IS still a per se taking

Question 12

(3) Penn Central Ad Hoc

3 factors weighed

Answer 12

1. Character of government action
2. Economic impact
3. Interference with legitimate investment backed expectations

Question 13

Penn Central, Factor 1

Character of government action

Answer 13

a. Nature: more likely taking if physical invasion than regulatory restriction

b. Purpose: Less likely a taking if
i. Broad public benefit
ii. Protecting public safety
iii. Preventing nuisance like harm
iv. Has reciprocity of advantage (restriction benefits owner)

Question 14

Penn Central, Factor 2

Economic impact

Answer 14

greater reduction in value of property = greater chance taking

Reduction in value determined by comparing with value remaining in property

Smaller the denominator, bigger the impact on value

Question 15

Penn Central, Factor 3

Interference with legitimate investment backed expectations

Answer 15

More likely taking if…

Reasonable to expect would be part of property right
Interferes with primary purpose
Has distinctive investment in right

Question 16

Regulation being in place before owner got property doesn’t mean… it’s not a taking but will effect reasonable investment backed expectation

Answer 16

it’s not a taking but will effect reasonable investment backed expectation

Question 17

Transferable development right

Answer 17

building with restricted air rights could transfer rights so nearby building could build above normal height limit in area