Week 12 - Regulatory Takings

Question 1

Regulations Preventing ______ ____ _______ – Not A Regulatory Taking

Hadacheck v. Sebastian

Answer 1

Common Law Nuisance

Question 2

Regulations That “____ ____ ____”

Pennsylvania Coal Co. v. Mahon

Answer 2

Go to far

Question 3

_________ ________ and Regulatory Takings

Penn Central Transportation Co. v. City of NY

Answer 3

Physical Occupations

Question 4

First _______ _______

Loretto v. Teleprompter Manhattan CATV

Answer 4

Categorical Taking

Question 5

When regulations go too far. 1st cases that said something the government did resulted in a taking.

What case?

Answer 5

Mahone

Question 6

The main test for whether or not your property has been taken by the government is the _____ ______ _________ _______.

Answer 6

Penn Central balancing Test

Question 7

In a regulatory takings’ context, the government is trying to regulate or prevent a harm rather than take property from a person for a public use.
A. True
B. False

Answer 7

A. True

Question 8

The power of the government to force transfers of property from owners to itself (or to other entities commonly invested with the power of eminent domain – like public utilities and schools – and even sometimes other private parties).

Answer 8

Eminent Domain

Question 9

Where the government intends to take the property.

Answer 9

Eminent Domain

Question 10

Where the government is intending to regulate and property owner initiates lawsuit claiming the government’s action amounts to a “taking.”

Answer 10

Regulatory Taking

Question 11

Regulatory Taking:

Where the government is intending to ________ and property owner initiates lawsuit claiming the government’s action amounts to a “________.”

Answer 11

regulate

taking

Question 12

With _______ _______ the government is not intending to take your land at all it is intending to regulate.

The regulation is so impactful that you feel like they may as well have taken the land because now you cannot do anything with it.

Value has plummeted.

The value what you had before they regulated and after is so dramatically different they need to compensate you for it. That is what your argument is.

Answer 12

Regulatory Taking

Question 13

Whether a taking has occurred in consequence of some ___________ activity?

Answer 13

governmental

Question 14

At what point does this government action or regulation become a _______ and require the payment of just compensation?

Answer 14

taking

Question 15

_______ ______: A critical end is to protect life, liberty, and property.
______ ______: Totally focused upon protecting life, even at the expense of liberty and property rights.

Answer 15

John Locke

Thomas Hobbes

Trying to figure out how much of a taking should be permitted under the constitution. It falls between Locke and Hobbs.

Question 16

A regulation that prevents a common law nuisance is not a taking.
A. True
B. False

Answer 16

A. True

Question 17

Pre-Zoning Nuisance Case
Hadacheck v. Sebastian: The _______ case

Answer 17

brick

Question 18

Pre-Zoning Nuisance Case

Hadacheck v. Sebastian: The brick case

A ________ that prevents a ______ ______ ______ is NOT a taking.

Answer 18

regulation

common law nuisance

Question 19

Pre-Zoning Nuisance Case

Hadacheck v. Sebastian: The brick case

The Court upholds a law prohibiting an otherwise lawful business (operating a brickyard) in a particular community on the ground that the legislature had reasonably concluded that the presence of the brickyard was inconsistent with neighboring uses.

True or False.

Answer 19

True

Question 20

_________ that prevent a common law nuisance cannot equal a ______.

Answer 20

regulations
taking

Question 21

“A vested interest cannot be asserted against the police power because of conditions once obtaining. To so hold would preclude development and fix a city forever in its primitive conditions.

There must be ________, and if in its march private interests are in the way they must _______ to the _______ of the __________.”

Answer 21

progress

yield to the good of the community

Question 22

What do we do with Hadacheck?

In the regulatory takings context,

Always look to see if the law at issue regulates a ______ _____ ______ first,

Because if it does,

We apply ________ and there is no regulatory taking,

And thus, no need to do other tests.

Answer 22

common law nuisance

Hadacheck

Question 23

Do Hadacheck close to the beginning of the analysis. Hadacheck is easy. Whole RULE:

Answer 23

A REGUALTION THAT PREVETNS A COMMON LAW NUISANCE IS NOT A TAKING.

Question 24

Good idea to rule out whether or not something is a regulation that’s regulating a nuisance before you go through multiple tests which have multiple subparts. Do Hadacheck near the beginning of the analysis If we see something that we think might be a nuisance. Remembering that specifically the rule says a regulation to prevent a ______ ______ ______ is not a taking.

Answer 24

COMMON LAW NUISANCE

Question 25

What are some examples of a common law nuisance?

Answer 25

Noise, dust, smoke, odors, fumes, airborne, or water-borne contaminants, vermin, insects, and vibration.

Question 26

If you see any nuisance like issues and the plaintiff is arguing that they have suffered a _______ talk about ________ in the beginning of the analysis because if the purpose of the regulation is to control a common law nuisance, then it is not going to be a taking and no reason to do all the other tests.

Answer 26

taking

HADACHECK

Question 27

Imagine a world where Annabelle owns a whole lot of properties and there are issues with each one. If the first one there is a common law nuisance situation and Annabelle is thinking the government’s actions have resulted in a taking start with Hadacheck because we can perhaps solve that problem.

Resolve whether she will get just compensation we will know if the regulation prevents a common law nuisance that regulation is not a taking, she will be unhappy, but we will know the answer.

As you learn each of the tests. Figure out that some fact patterns are pointing you toward Hadacheck. Some will have a permanent physical invasion -Loretto. !!!

Answer 27

!!

Question 28

Lucas if someone has lost ______ of the value of their property that is Lucas.

Some of the tests like Hadacheck, Loretto, and Lucas are short rules and are easy to apply and easy to rule out whether something is a taking before you go through Penn central. Triage. Emergency room. Triage nurse to make sure you can breathe. Then they ship you into waiting room.

Answer 28

100%

Question 29

Inverse condemnation is regulatory taking at the state level.
A. True
B. False

Answer 29

A. True

Question 30

Can inverse condemnation happen at the federal level? ______, but at that point sometimes we call it a regulatory taking at that point. It does happen at the federal level but most of the situations we deal with in our cases are going to be local laws or state laws which are causing the problem.

Answer 30

yes

Question 31

________ ________ – government choosing to act for the benefit of the people, but the result of that action is a PO thinks that their rights have been so infringed upon claiming that their property has been taken under the 5th amendment.

Answer 31

Inverse condemnation

Question 32

_______ _______: Government starts case with intent of “taking” property and paying just compensation.

______ __________: Government action occurs, and the property owner starts the case, claiming that the government’s action has effectively “taken” his/her property in violation of the 5th Amendment (and perhaps state constitution).

Answer 32

Eminent Domain

Inverse Condemnation

Question 33

_______ ________: Government starts case with intent of “taking” property and paying just compensation.

Answer 33

Eminent Domain

Question 34

Eminent Domain: ___________ starts case with intent of “taking” property and paying just compensation.

Answer 34

Government

Question 35

_______ _________: Government action occurs, and the property owner starts the case, claiming that the government’s action has effectively “taken” his/her property in violation of the 5th Amendment (and perhaps state constitution).

Answer 35

Inverse Condemnation

Question 36

Inverse Condemnation: Government action occurs, and the ______ ______ starts the case, claiming that the government’s action has effectively “taken” his/her property in violation of the 5th Amendment (and perhaps state constitution).

Answer 36

property owner

Question 37

Example: Lucas case. South Carolina was worried about erosion and houses washing away that were on the coast. Passed a law and the law said you can’t build on the beach anymore. The state of SC was worried about people have property damage or loss of life by having house to close to the ocean. Erosion washes away the land overtime and there is water where land used to be.
SC said that is bad let’s prohibit all building on the waterfront. If you are in this zone, you cannot build anymore.
1 guy Lucas developer had a hand in developing wild dunes. David Lucas had saved out two lots on the water for his own purposes. They bought it and were paying a lot of money 1M in the 1980s really expensive lots and he hadn’t got around to building and then the law changes and says you can’t build on the water example of government regulating – keep houses and people from washing away. Government had a purpose but impact of that regulation on Lucas was really dramatic. What is he supposed to do with two lots if he can’t build on them and they are on the water?
Different than if the state of SC said David Lucas we are going to take your property through eminent domain for public beach access and we will pay you just compensation. That is eminent domain. Regulatory Taking or inverse condemnation the government said we are going to stop erosion and DL said you just took my land. His name was on the deed, but it is now worthless and he cannot do anything with it and felt that it had been taken.
!!

Answer 37

!!

Question 38

Inverse Condemnation

What government action may result in “inverse condemnation?”
1. ?
2.

Answer 38

1. General Action Taken, or

Question 39

Inverse Condemnation

What government action may result in “inverse condemnation?”
1.
2. ?

Answer 39

2. Government “regulation” by law or ordinance.

Question 40

______ _______ comes in many forms Sometimes it is a regulation meaning it is a law or ordinance other times the government is acting in a way which ultimately injures you.

Answer 40

General Action

Question 41

Government owns a vacant parcel of land in the town, and they improve it and turn it into a ballpark.

Government act because they approved this land and turned it into a ballpark. Part of the ballpark is the possibility of night games. Bright lights at night games.

Bright lights and my house is facing the bright light now it is never dark in my bedroom anymore. Makes going to sleep difficult government act they were not intending to make it 900watts inside my bedroom they were intending to create a ballpark for the community’s benefit and the act they took had a negative impact on my property value and use and enjoyment.

Difficult when we have situations like ballpark hypo– difficult to be found a taking because they are going to start by asking was there a physical intrusion, applicable regulation and the answer to both is no. was this a direct singeing out of your property? No. is it appropriate for you to sew and get recovery most courts will say no.
!!

Answer 41

!!

Question 42

HYPO on Inverse Condemnation
Government builds a tunnel through a mountain and constructs an exhaust system for the tunnel that blows the fumes by noisy fan directly out onto one single family home, essentially rendering the home useless.

Question: Might this be a “taking” by inverse condemnation?

Example which could result in a taking. Tunnel from Ashville to here. Government decides that building a tunnel is the safest way for people to pass through, but the tunnel is under the ground we have to have an exhaust system. Most cars producing emissions, so we have to funnel it out somewhere.
They create an exhaust system to do that, and it has a noisy fan, and it is blowing all of the emissions directly at a single-family home and you cannot live in it anymore. If the owner of that house goes to court and alleges, they have suffered a taking through inverse condemnation, are they going to be successful?

Answer 42

They are because they are not being merely inconvenienced.

Different blinds to shield light I could.

I cannot live safely in the home where all the exhaust is poured out directly from it. Nobody can live there. This would be a good case for a taking by inverse condemnation through government action.

Question 43

Where do we draw the line between the conclusions that:
*The government is merely taking legitimate government action by regulating for the public good; and

*The government’s regulation is of the type and degree that the burden of doing the public good should be borne by the public at large, not by one private owner.

We can agree that exhaust system is necessary, and we need that. That smoke should be dispersed differently and not point at one Single Family Home and render their house useless. !!

Answer 43

!!

Question 44

Rule Based on Measuring and Balancing

Pennsylvania Coal Co. v. Mahon

First recognition that _______ _______ may result in an inverse condemnation, i.e., a “taking”

Answer 44

government regulation

Question 45

Rule Based on Measuring and Balancing

Pennsylvania Coal Co. v. Mahon

First recognition that government regulation may result in an ______ __________, i.e., a “taking”

Answer 45

inverse condemnation

Question 46

Pennsylvania Coal Co. v. Mahon

The general rule is that property may be________ to a certain extent, but if _______ goes too far it will be recognized as a taking.

Answer 46

regulated

regulation

Question 47

Pennsylvania Coal Co. v. Mahon

The general rule is that property may be regulated to a _______ _______, but if regulation goes ____ ______ it will be recognized as a ______.

Answer 47

certain extent

too far

taking

Question 48

Outline has Hadacheck and the rule with a star and reminder of what common law nuisances are. Statement that inverse condemnation is just regulatory taking at state level. !!

Answer 48

!!

Question 49

Mahone’s says IF A REGULATION GOES TO FAR THEN IT IS A TAKING.

That is what you would put at the beginning of a regulatory takings essay. !!

Answer 49

!!

Question 50

Mahone’s says:

If a ________ goes too far then it is a ______.

Answer 50

regulation

taking

Question 51

Mahone’s says:

If a regulation ___ ____ ____ then it is a taking.

Answer 51

goes to far

Question 52

Pennsylvania Coal Co. v. Mahon
Dissent: Justice Brandeis

*Value of property restricted is relative.

*Must consider the value of the coal kept in place by the restriction, and compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property.

Brandies Lost but the dissent became known as the ______ as a _____ _______.

Answer 52

Property as a whole analysis

Question 53

Start regulatory taking essay with Mahone that if a regulation goes too far it is a taking and then you move on to discuss whether or not the regulation went too far.

Property as a whole analysis: dissent – come back to haunt us in the Penn Central Balancing test. Have to know even though in 1922 he was not the winner – he is now. Property as a whole analysis is still going strong. !!

Answer 53

!!

Question 54

Justice brandies argument was that you can’t separate out a certain segment of property and say all of my rights to this part have been taken. It is true that the coal company couldn’t mine in that support area, but they owned the rights to the coal underneath. Coal company could be reunited with those rights – they might be able to access coal – the coal company buys the house back and they get rid of the house and there is no house and they have the right to mine it.
Brandeis – consider the value of the coal kept in place by the restriction and compare it with the value of the whole land, all the parts. Looking at the value not just of the coal alone but the value of the whole property.
There is a scenario where they could have access to all of its coal. It hasn’t lost all of its rights.
Considering whether or not the property still has any value. It does the coal is still valuable
More valuable when you have a right to get it out, but it didn’t lose all its value because right now you cannot get it out easily.
Analysis will be key in prong 2 in the Penn central balancing test.

!!

Answer 54

!!

Question 55

_______ ____ ____ _____ ______: WE DO NOT DIVIDE A SINGLE PARCEL INTO DISCRETE SEGMENTS AND ATTEMPT TO DETERMINE WHETHER THE RIGHTS IN A PARTICULAR SEGMENT HAVE BEEN ENTIRELY ABROGATED.

Answer 55

PROPERTY AS A WHOLE ANALYSIS

Question 56

PROPERTY AS A WHOLE ANALYSIS:
WE DO NOT DIVIDE A SINGLE PARCEL INTO ________ ________ AND ATTEMPT TO DETERMINE WHETHER THE RIGHTS IN A ________ ________ HAVE BEEN ENTIRELY ABROGATED.

Answer 56

DISCREATE SEGMENTS

PARTICULAR SEGMENT

Question 57

PROPERTY AS A WHOLE ANALYSIS:
WE DO NOT DIVIDE A _______ ______ INTO DISCRETE SEGMENTS AND ATTEMPT TO DETERMINE WHETHER THE RIGHTS IN A PARTICULAR SEGMENT HAVE BEEN _________ _________.

Answer 57

SINGLE PARCEL

ENTIRELY ABROGATED

Question 58

PALAZOLOO case – saw a change in the law which meant you couldn’t develop the low land portion of the property. You could still develop the part of the hill. When they went to court you took all of our rights to the lowland portion. That doesn’t work with a property as a whole analysis. You can’t say took all the rights to the downstairs and I still have the upstairs we look at the whole thing and is there anything left of the whole thing, not did you take 100% of the lower portion. !1

Answer 58

!!