Takings

Question 1

Penn Coal v. Mahon

Regulatory Taking Found b/c:

Answer 1

1) State B. Recognized a separate interest in property called a “support estate” which permits mining w/out liability for subsistence.
- Regulation was a taking b/c it made the Support Estate VALUELESS (Diminution in value)
2) Served public purpose, but took from one private party and gave it to another. (violates the takings clause)

Question 2

Regulatory Takings

Penn Coal v. Mahon (DISSENT - Public Nuisance)

Answer 2

FACTORS:

1) Public Nuisances threaten the public welfare
2) Legislature has power to prohibit such uses w/out paying compensation.
3) When a restriction benefits the Public - there is NO TAKING.
4) Reciprocity of advantage applies when trying to confer benefits, not prevent Public Harm.

Question 3

Regulatory Takings
Keystone Bituminus v. Debenedictis
(Statute Requiring Company to leave 50% of coal in ground to prevent Subsitence) Taking or no Taking?

Answer 3

Statute does not effect a taking since the Coal that must remain in the ground cannot be severed from all the coal in the ground.
(Degree of loss = NOT TOTAL)
Exception = If the law as applied to 1 company reduces the value of the coal to Zero = Taking, unless company owns surface rights (no total loss).

Question 4

Regulatory Takings
Penn Central Trans v. NY City
NYC passed Landmark preservation ordinance

Answer 4

1) NO TAKING - owner can still continue to operate the terminal and receive a REASONABLE RETURN.
2) Airspace above = NOT A SEPARATE INTEREST. (“Taking” 100% of the air rights = not a “Taking” causing a TOTAL LOSS OF VALUE.

Question 5

Regulatory Takings

“Conceptual Severance”

Answer 5

Determining the Portion of the property to be regulated or “TAKEN” is calculated to Determine whether the Owner has been denied all value.

Question 6

Regulatory Takings
General Rule (Too Far Standard)

Answer 6

While Property may be regulated to a certain extent, regulation that goes “too far” will be recognized as a “TAKING.”

Question 7

Regulatory Takings

Three Factor Test

Answer 7

1) Character of the Government Action
- Misuse of regulatory authority by government
- uncertainty of application (owner cannot plan for use of property)
- Importance of Gov. Action
2) Economic Impact of the Regulation
Use = Value - Courts look to whether owner is left with an UNREASONABLE # of USES. If Landowner can make economic use of the property = NO TAKING.
3) Investment - Backed Expectations
- Taking - if regulation INTERFERES WITH I.B.E.

Question 8

“Total Takings”

Lucas V. South Carolina Coastal

Answer 8

Government Regulation that prohibits all “Economically Beneficial” or Productive Use = “TOTAL TAKING”
- Council regulation prohibiting construction of permanent homes was a TAKING b/c it caused a COMPLETE LOSS OF VALUE.
Exception = Regulatory power of gov. to restrict nuisances.

Question 9

“TOTAL TAKINGS” + Exceptions

Answer 9

Occurs when:
- Government Regulation prohibits use of Private land amounting to a “Total Taking”
Exceptions (No Compensation paid)
1) Laws and Regulations that have the same effect under common law regulation of Nuisances do not amount to a taking.
2) Restrictions or regulations already affecting the title: Background principles of property + nuisance: Riparian Rights, adverse possession, etc…

Question 10

Takings Clause

5th Amendment

Answer 10

“Nor Shall Private Property Be Taken for PUBLIC USE without

JUST COMPENSATION.

Question 11

Public Use = PUBLIC PURPOSE

Answer 11

1) Legitimate State Interest or Purpose IDENTIFIED by State
(within the authority of State’s Police Power)
2) Taking Allowed if Rationally Related to Furtherance of a LEGITIMATE STATE PURPOSE.
- Judiciary defers to legislative determination of LSI.

Question 12

Hawaii v. Midkiff
“Public use = Police Power”
(Hawaii could condemn land then lease it to private parties and immediately transfer it in fee simple to the same parties to use as private residences.

Answer 12

Public Use = Achievement of a Public Purpose

1) Legitimate State Interest = Bolstering Economy by diversifying land holdings and having occupants own them.
2) Condemnations of leasehold lands = Legitimate means to accomplish that goal.

Question 13

Public Use
Kelo v. City of New London
(Taking for Economic Development and Increasing Tax Revenue)

Answer 13

1) Taking Private land to confer PRIVATE BENEFIT on a particular party = FORBIDDEN
2) Taking must serve a “Public Purpose” - Broadly defined by Legislature.
3) The Taking’s “Purpose” matters, not the method.

Question 14

Kelo v. City of New London
(City may take nonblighted property and Transfer to private developers to achieve the legitimate Public purpsose - Deferring to Judgement of State and Municipal officials)

Answer 14

• Condemning 115 Privately owned properties and transferring them to a private entity for multi-use development = Rationally Related to the Legitimate Purpose of PROMOTING ECONOMIC DEVELOPMENT & INCREASING TAX REVENUE.

Question 15

Kelo v. City of New London (DISSENT)

“Public Purpose” = Overly Broad, so that any TAKING is Constitutional

Answer 15

Narrow View of Public Use:
Gov may take property only if gov. ACTUALLY USES the property, or
GIVES THE PUBLIC A LEGAL RIGHT TO USE THE PROPERTY.

Question 16

Public Use
Berman v. Parker
(Imminent Domain used to Condemn a blighted neighborhood)

Answer 16

1) Imminent domain is a valid means to achieving or promoting the public interest
2) Once the legislature has spoken, the public interest has been declared, and the Legislature may use any RATIONAL MEANS to promote the Public Interest.

Question 17

Berman V. Parker
(Taking and Transferring property to 3rd Parties as part of an urban development plan = Constitutional means to Effect a Public Use)

Answer 17

1) Legitimate State Interest - Promoting Clean, Healthy and “well-balanced” communities
2) Taking and Transferring Property = Rational Means to Advance State Interest.

Question 18

Temporary Takings

Other Types

Answer 18

1) Bad-Faith Abuse of Regulation or Licensing Process
(City of Monterrey v. Del Monte Dunes) - City repeatedly denies landowner development permits w/out showing Landowners failed to meet requirements.
2) Necessary Delays and Not-Unreasonably long emergency moratoria = NOT TEMPORARY TAKINGS.

Question 19

Regulatory Takings
Hadacheck v. Sebastian (Clay Brick Factory = Nuisance)
(Regulations in the Public Interest which are Non-Discriminatory, and NOT ARBITRARY = Permitted under the Police Power.)

Answer 19

Ordinance did not prohibit the removal of Clay, just the brick making process.

Nuisance Control = NO TAKING, notwithstanding the loss of value.

Police Power = Curbing a public bad
Eminent Domain = Promoting a Public Good.

Question 20

Takings Clause
Permanent Physical Occupations = Takings Per Se
Loretto v. Manhattan Catv

Answer 20

(Gov. or Cable Co must pay compensation)
Permanent Occupations = Per Se Takings
Temporary Takings = Subject to a balancing test
Degree of taking only relevant to Compensation
Physical Installations for Safety = OK (Public Safety / Welfare)

Question 21

Physical Invasions

Take Away Right to:

Answer 21

1) Possess
2) Right to Use
3) Decrease right to Sell (alienate)

Question 22

Physical Invasion / Occupation of Property = Taking Per SE

Answer 22

Physical Invasion / Occupation by a Government body or a third party acting under Gov. authority are CATEGORICAL TAKINGS.

• Require no Balancing of Statute’s benefit or burdens to the public interest.
• Small Occupations must be compensated.

Question 23

Temporary Takings
First English Evangelical v. LA County
(temporary taking resulting from a complete denial of Use)

Answer 23

Government is liable for damages for the time the unconstitutional TAKING (regulation) is in Effect
Measure of Damages: FAIR RENTAL VALUE or OPTION VALUE
Once a takings is found: State must either
- Pay compensation, or
- Repeal the statute, ordinance, or regulation, AND
- Pay compensation for Temporary taking.

Question 24

Regulatory Takings

Penn Coal v. Mahon

Answer 24

Whether there has been a REGULATORY TAKING Depends on THREE FACTORS:

1) Diminution of Value (Degree of Loss of Value)
- When loss of value reaches a certain point the regulation is a TAKING, and compensation will be required.
2) NUISANCE BALANCING (Public Interest v. Private Harm)
- public interest insufficient to warrant appropriation of coal + transfer to private party.
3) Reciprocity of Advantage (Mutual Benefit)
- In Mahon, there was none, Homeowner Benefits, but company loses all its interest.