VIII. Eminent Domain Flashcards
What is Eminent Domain?
Government’s power to force the transfer of property
Under article V of the constitution: “nor shall property be taken for public use without just compensation”
Transfer to public ownership = OK
Make property available for public use = OK
Public purpose - Harder
What is the Kelo / SCTOUS test for public use?
Ends Test:
Is there a legitimate government interest?
Will this benefit the community? It does not need to fix all the problems but must have a significant benefit for community as a whole
Regardless of individual loss
Or that individual may be able to make better use of the land
Or that the land is going to a private party
Kelo v. New London City→ Improving economically depressed city (not blighted) to bring new jobs and taxes is a valid public purpose (even if private parties benefit)
Bernman→ taking blighted areas is a valid public purpose
Midkiff→ reducing land ownership (hawaii) is a valid public purpose
NJ Strict Blight Test?
Need deterioration or stagnation to negatively affect surrounding properties, the fact that the land is not fully productive is not enough (Paulsboro)
What constitutes just compensation?
Just Compensation
Market value is fair also do not consider relocation costs
Personal value would be too hard to litigate in courts **Conflict with personhood theory
What is an implicit taking?
regulations that affect property value of the land so much that it is like your property is being taken (confused area of law)
What is the Penn Central test for taking?
Landmarks Preservation Law: preserve landmarks and districts: owner must keep exterior of bldg. in good shape and committee has to approve any exterior alterations
Penn Central wants to build 50+ bldg. on top of Grand Central Transportation but plans were denied
Ct: 3 part test: factors to consider (p 1120)
(1) economic impact of the regulation
(2) interference with investment-backed expectations (when bought, thought they could invest in it)
(3) character of the government action
Loretto v. Teleprompter Manhattan CATV Corp
Complaint: cable box and wires on her property physically
Q: Are cable wires on landlords’ properties to increase access to cable TV takings?
Ct: quotes Penn Central:
when the physical intrusion reaches the extreme form of permanent physical occupation, a taking has occurred”
Ct: draws line between permanent (taking) v. temporary (not taking)
Invasion of rights:
Right to exclude: can’t exclude where the cable box is
Right to use: can’t use land where the box is
Right to transfer: central to utilitarianism, personhood, and
central to rights to your property
boxes and wires are there all of the time = permanent
boxes, bolts, wires = physical
= taking: and govt needs to pay “just compensation”
Ct: says it’s a narrow holding BUT = bright line rule
Dissent:
(1) it’s not permanent (varies based on time-cable installation and not there all of the time)
(2) Ct is getting metaphysical when focuses on all these physical invasions
(3) doesn’t make sense to focuses on occupation v. invasion: should look at the extent of the interference (and here, it’s not a big interference)
Lucas v. S.C. Coastal Council
Beachfront Management Act: no bldg. of permanent habitable structures on the lots (worried about erosion)
2 categories of action focused on as “per se” (automatic) taking:
(1) look at physical invasion – Loretto
(2) look at value of land taken away: was it all of the economic or productive use of the land?
Why look at economic value?
- heightened risk when take all of the value that there will be discrimination v. individual land owners (private prop sacrificed for the public good)
- equivalent of physical appropriation: no reciprocity of advantage (all of the burden is on one-sided)
Why not just look at nuisance? (now, = part of police power)
2 ways of looking at police power from being able to ban nuisances:
- states are preventing a nuisance
- but also, conferring a benefit
Rule: if take all value of property = taking
Limitation on the rule: look at background principles of property and nuisances:
if don’t have rights in the 1st place to engage in the nuisance, state an stop even if 100% value is gone
Common law: relevant nuisance factors when State can act:
- degree of harm to public land and resources
- social value of land owner’s activities and suitability to the locality
- ease with which the owner could avoid harm
Palazzolo v. Rhode Island
Inverse condemnation: L is the one who is suing the govt (usu. govt brings condemnation suits)
R.I.: regulation was enacted prior to ownership so: no expectations to build
Ct: can’t put an expiration on the challenge for regulations regardless of how reasonable; looks at timing as a factor but not dispositive
Ct: doesn’t care how to look at the parcel
-looks at timing
Takeaway? it’s less likely to be a taking if the owner became the owner after the regulation was enacted
SCOTUS Takings Cases
Penn Central: framework for general rules/factors to consider
Loretto: physical invasion
Palazzolo: timing of regulation to title
Lucas: effect on land owner (total value) but look at background rules of property or nuisance
