Takings (Ch. 13) Flashcards
regulatory taking
when a regulation restricts the owner’s rights so much that it becomes the functional equivalent of a seizure.
Mugler-Hadacheck approach
(a.k.a nuisance/noxious use test) says taht a regulation adopted under police power to protect public health/welfare or to prevent a nuisance is not a taking, even if it reduces property value.
Pennsylvania Coal v. Mahon (1922)
Supreme Court overturned the Kohler Act in PA b/c police power doesn’t apply when it affects the mining of coal under streets where that right has already been reserved. Key phrase: “too far.”
What was the first case to recognize the regulatory takings doctrine?
Penn. Coal v. Mahon
Penn. Coal dissent
written by Brandeis; said that coal mining under occupied land jeopardized public safety due to risk of subsidence of the land.
Famous quote from Penn. Coal
“Government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”
diminution in value test
considers the financial impact of the regulation on the value of the property– e.g. how much does the regulation diminish the value of the property?”
average reciprocity of advtange
refers to whether the burden of the ordinance/statute is balanced by the benefit as distributed among all surrounding landowners.
harm benefit distinction
the difference between a regulation that prevents a harm to the public (clearly not a taking under Penn Coal), and a regulation that confers a benefit on the public (taking is unclear under Penn Coal).
Penn Central v. City of N.Y. (1978)
Supreme Court upheld N.Y. City’s landmark preservation law (which prevented building office space above Grand Central Station) by saying the law didn’t interfere with present use of the terminal and didn’t fully prevent use of the airspace in all situations.
Penn Central balancing test
(1) economic impact of the regulation on the claimant, (2) extent to which regulation interferes with investment backed expectations, and (3) character of the government action (physical invasion or action for common good).
dissent in Penn Central
written by Rehnquist, says the cost of preserving landmarks should be born by taxpayers in general, not the unlucky few landowners; therefore the city should pay just compensation for the “taking.”
Three categorical tests
permanent physical occupation, loss of all economically beneficial use of the land, and exaction with no essential nexus to a legitimate state interest, or lacks rough proportionality to the project.
Loretto v. Teleprompter Manhattan Corp. (1982)
Court established that a minor but permanent physical occupation of an owner’s land constitutes a “taking” under the 5th Amendment b/c it interferes with the bundle of rights (the right to exclude).
How would Loretto be decided under the Penn Central balancing test?
Most likely not a taking–economic impact is low and no interference with investment-backed expectations.
