Takings (Ch. 15)

Question 1

Factors to Consider for Whether Temporary Flooding is a Taking

Answer 1

a) the duration of the invasion
b) the degree to which the invasion is intended or is the foreseeable result of authorized government action
c) the character of the land
d) reasonable/DIBE
e) the severity of the invasion

Question 2

Public Use Requirement Rule

Answer 2

(1) The Fifth Amendment of the Constitution provides that if government takes land, it must provide compensation and the property in question must be taken for a public use. (2) The US Supreme Court stated in Hawaii Housing Authority that where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the public use requirement is satisfied.

Question 3

What satisfies the Public Use Requirement?

Answer 3

(1) {J1} when property is taken for a public purpose

(2) {J2} statutorily, public purpose is not enough

Question 4

Regulatory Takings (general rule)

Answer 4

(1) A regulation or decision regarding land use is a taking under the Fifth Amendment when, as per Pennsylvania Coal, the regulation or decision “goes too far.” (2) A regulation or decision can go too far when there is an economic wipeout of the whole or a wipeout of a conceptual part, the decision is not substantially related to an important government interest, interferes with distinct investment backed expectations, or is improper nuisance control.

Question 5

Average Reciprocity of Value

Question 6

Character of Government Action

Question 7

Transferable Development Right (TDR)

Question 8

DIBE

Question 9

Conceptual Severance Rule

Question 10

Economic Wipeout Rule

Question 11

Nuisance Control Rule

Answer 11

(1) As stated in Lucas, while the state can use its police power to engage in regulation for the health and safety of its citizens and eliminate nuisance, which is never a taking, the nuisance must be a “common law nuisance.” (2) Although it is not clear what a common law nuisance is, Lucas stated that the state can proscribe interests that were not part of the landowner’s title. (3) Under Lucas, using one’s property to emit toxic fumes like in Hadacheck is never part of a landowner’s title, while building a house is part of title, and thus, never a common law nuisance.

Question 12

Diminution in Value Rule

Question 13

Essential Nexus Test Rule

Question 14

Rough Proportionality Test Rule

Question 15

Substantive Due Process (General Rule)

Answer 15

Social welfare legislation, which includes zoning ordinances, will violate the Due Process Clause if the challenger can establish that the ordinance is not rationally related to a legitimate government interest.

Question 16

Rational Relationship Test (Rule)

Answer 16

An ordinance will satisfy the rational relationship test when it is not fully arbitrary and the legislature could believe that the legislation will further the legitimate government interest.

Question 17

Legitimate Government Interest Rule

Answer 17

A legitimate government interest in the due process realm includes laws for the health and safety of the citizenry and, therefore, is coterminous with the police power.