Week 12: Regulatory Takings Part 2

Question 1

________: Good raise and dismiss case to start with. If the call of the question is indicating that someone feels as though their property ahs been taken you want to assess whether or not a regulatory taking claim is even possible.

Answer 1

Hadacheck

Question 2

Rule out short tests first. Multiple properties in fact pattern that deal with different sorts of tests. Have you learned the tests and know how to apply them. !!

Answer 2

!!

Question 3

If you see examples of a common law nuisance do two things:
1.
2.

Answer 3

1. Walk through threshold test, balancing of the equities, utilitarian test to figure out what outcome we would have from nuisance standpoint.
   But also,
2. if the person who has been injured feels that their property has been taken do a takings analysis.

Question 4

Hadacheck case and it is a _______ ______ ______. Noise, dust, smoke, etc. do whole nuisance analysis to figure out whether injured person will be able to recover under any of the three tests and then do _____ analysis to see whether or not a 5th amendment claim.

Answer 4

common law nuisance

taking

Question 5

Under takings analysis ________ rule – if the purpose of the regulation is to prevent a common law nuisance the regulation did not constitute a taking.

Answer 5

Hadacheck

Question 6

What is good about regulations that prevent common law nuisances?

Answer 6

Protects public health, safety and welfare.

Question 7

If we have regulations in place whose sole purpose is to keep people from being injured. Great news we have kept a whole bunch of people from being injured. We don’t want those regulations to be tossed out because someone is injured by them because the greater good is protecting public _____, ______, and _______.

Answer 7

health, safety, and welfare

Question 8

______: from 1922 the first case that the Supreme Court said yes, regulations can go so far that they actually create a taking. Even though you still own your property, still deeded in your name, the impact is so significant you feel as though it has been taken and you deserve compensation.

Answer 8

Mahon

Question 9

5th amendment says government cannot take your stuff without ______ ________.

Answer 9

just compensation

Question 10

Mahon says that if a _______ goes too far it might be a _______.

Answer 10

regulation

taking

Question 11

______- the basic rule: if a regulation goes too far it might be a taking. Great topic sentence to an essay question on regulatory takings. Mahon says this

Answer 11

Mahon

Question 12

_______ _____ _____ _____ _____: 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 12

Property as a Whole Analysis

Question 13

PROPERTY AS A WHOLE ANALYSIS: We ____ _____ divide a single parcel into discrete segments and attempt to determine whether the rights in a particular segment have been entirely abrogated.

Answer 13

do not

Question 14

PROPERTY AS A WHOLE ANALYSIS: We do not ______ a _____ ______ into discrete segments and attempt to determine whether the rights in a particular segment have been entirely abrogated.

Answer 14

divide a single parcel

Question 15

PROPERTY AS A WHOLE ANALYSIS: We do not divide a single parcel into ______ _______ and attempt to determine whether the rights in a particular segment have been entirely abrogated.

Answer 15

discrete segments

Question 16

PROPERTY AS A WHOLE ANALYSIS: We do not divide a single parcel into discrete segments and _____ to _______ whether the rights in a particular segment have been entirely abrogated.

Answer 16

attempt to determine

Question 17

PROPERTY AS A WHOLE ANALYSIS: We do not divide a single parcel into discrete segments and attempt to determine whether the ______ in a ______ ______ have been entirely abrogated.

Answer 17

rights in a particular segment

Question 18

PROPERTY AS A WHOLE ANALYSIS: We do not divide a single parcel into discrete segments and attempt to determine whether the rights in a particular segment have been _______ ________.

Answer 18

entirely abrogated.

Question 19

PROPERTY AS A WHOLE ANALYSIS:

Answer 19

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.

Question 20

Fact patterns in essay questions where we have ______ ______ _______. Brendon has a bistro, and his bistro is downstairs, but he lives upstairs. At the time the upstairs apartment and downstairs bistro were created it was okay to do that. You could go down a non-conforming use path if the zoning changes and the restaurant is not allowed anymore – but taking that out of it and putting it into the context of regulatory takings.

Answer 20

mixed use development

Question 21

Zoning ordinance is passed, and zoning is an action of the government, and it can trigger regulatory takings too.
Zoning ordinance is changed, and it says residential only.
Brendon who lives upstairs that part is okay, but it impacts bistro downstairs. Brendon may want to bring a regulatory takings claim and might be inclined to say you took 100% of my downstairs use.

Can you do that under a Property as a Whole Analysis?

Answer 21

You cannot do that under property as a whole analysis because you cannot say you took all of this part of my land.

Do you still have any value in the land? You can eventually succeed in your claim for regulatory taking if they took less than all of your property but easier if they did take it all.

Question 22

Penn Central – you can CALL IT for exam. !!

Answer 22

!!

Question 23

_____ _____ Case: developer argue you took all of my air rights.

Answer 23

Penn Central

Question 24

____ _______ is the balancing test for takings.

Answer 24

Penn Central

Question 25

If you don’t satisfy any of the little tests this will decide if your property has been taken.

Answer 25

Penn Central is the balancing test for takings.

Question 26

Takes place in New York City: Grand Central Station located in Manhattan and historic building. The owner of grand central terminal wants to expand upwards. Manhattan is an island and not adding land onto it. Valuable property you have to go up because you can’t go out.

Plan to build up is used for office buildings. 55 stories.

Historic building you have to go through the landmark preservation commission to change it. The act was created to protect historic landmarks. LPC is established under the ordinance. Because Grand Central is historic building you have to go through the LPC to get approval if you want to change the exterior of the building.

The owner of the building submits the plans to LPC, and they say no. Could the owner have resubmitted several more times? Yes. That other one got turned down too. Could have created something that was built above that would increase income, they could have. Maybe not 55 stories and modern but they could have built something shorter in keeping with the architectural style of the terminal.
Owner gets upset and sues. LPA is a taking. The law violates the takings clause, and they are due just compensation. They allege that the air rights were taken from them. Trial Court granted injunction but severed the question of damages. Next level reversed and the state top court affirmed and now at the USSC. Are the restrictions imposed on grand central a taking and if they are should they be paid just compensation?

All of this and we end up with what?

Answer 26

They adopt a three part test. A balancing test.

Question 27

What you need to do is 1 memorize it. 2. Explain what each of the prongs mean. 3. Relate those prongs back to the facts. 4. Conclude whether or not each prong has been met. 5. Conclude overall. EXAM!

What does this refer to?

Answer 27

Penn Central: Balancing Test

Question 28

Penn Central Balancing Test:
Prong 1:

Answer 28

The Character of the Governmental Action

Question 29

Penn Central Balancing Test:
______ ___: The Character of the Governmental Action

Answer 29

Prong 1

Question 30

Prong 1: The _______ of the ________ _______.
What does it mean?

It is asking was there a physical invasion by the government? Actual physical invasion. Physically did they put something on your property. If they did the prong is satisfied. If they did not prong one is not satisfied.

Answer 30

The Character of the Governmental Action

Question 31

Prong 1: The character of the governmental action.
What does it mean?

It is asking was there a ______ ______ by the government? Actual _____ ______. Physically did they put something on your property. If they did the prong is satisfied. If they did not prong one is not satisfied.

Answer 31

physical invasion

physical invasion

Question 32

Prong 1: The character of the governmental action.
What does it mean?

Answer 32

It is asking was there a physical invasion by the government? Actual physical invasion. Physically did they put something on your property. If they did the prong is satisfied. If they did not prong one is not satisfied.

Question 33

Is there any allegation that something was put on the property in Penn Central?

Answer 33

no prong one is not satisfied in Penn Central.

Question 34

You can still have a taking even if you don’t meet all three prongs. True or False.

Answer 34

True

Question 35

Penn Central Balancing Test:
____ ___: The economic effect of the regulation on the claimant.

Answer 35

Prong 2

Question 36

Penn Central Balancing Test:
Prong 2: The ______ _____ of the regulation on the claimant.

Answer 36

economic effect

Question 37

Penn Central Balancing Test:
Prong 2: The economic effect of the ________ on the claimant.

Answer 37

regulation

Question 38

Penn Central Balancing Test:
Prong 2:

Answer 38

The economic effect of the regulation on the claimant.

Question 39

Penn Central Balancing Test
Prong 2: The economic effect of the regulation on the claimant.

How many parts are in this prong?

Answer 39

2

Question 40

Penn Central Balancing Test
Prong 2: The economic effect of the regulation on the claimant.

What does this mean?
(1)
(2)

Answer 40

(1) Property as a Whole Analysis
(2) Look at the value of the property with the regulation compared to the value of the property without the regulation

Question 41

Penn Central Balancing Test
Prong 2: The economic effect of the regulation on the claimant.
(1) Property as a Whole Analysis:

Answer 41

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.

Question 42

How would we apply that here in the Penn Central Case: Plaintiff is alleging that the LPA took air rights from them. At this point we have to ask ourselves can you separate air rights from the physical structure?

Answer 42

Property as a whole analysis doesn’t let us separate.

Question 43

In Penn Central, plaintiff attempted to separate out the air rights to say that all of their rights were taken, but that is not appropriate. The ______ ___ ___ ____ _______ says that we cannot do that.

Answer 43

property as a whole analysis

Question 44

If the Property as a Whole Analysis does not work what can we do? Look at the ______ of the property with the regulation compared to the ______ of the property without the regulation.

Answer 44

value

value

Question 45

Penn Central Balancing Test
Prong 2: The economic effect of the regulation on the claimant.

(1) Property as a Whole Analysis
(2) ?

Answer 45

Look at the value of the property with the regulation and the value of the property without the regulation.

Question 46

Does the value of grand central decrease because we can’t build the 55 stories on top? Evidence indicates that if they had been able to it would have been millions in rent, there is a potential loss because the act says you cannot do this. !!

Answer 46

!!

Question 47

Do 2 things with _____ __: property as a whole analysis and one is value of the property with the regulation and value of the property without.

Answer 47

prong 2

Question 48

Property as a whole analysis: expression busy as grand central station – is the owner making money? Yes. Everyday. The fact that they are subject to regulation does not mean that the property has become _______ because they are making tons of money every day. From a property as a whole standpoint, we are not winning prong 2 because the existing structure subject to the act is lucrative. Can’t separate out the air rights it won’t work in property as a whole analysis. In prong 2 we also do the value of the property with the regulation v. value of property without. How much money could have been made if they had been able to build 55 stories?

If this regulation wasn’t here and I could do what I want with my land that is how much I could make with it?

Answer 48

valueless

Question 49

Property as a whole did you lose _____ of the ______ to your property because of this regulation – they didn’t they still have grand central where they make lots of money.

Answer 49

ALL VALUE

Question 50

______ case: if you lose all of the economic and beneficial value of your property it is a taking period no matter what.

Answer 50

Lucas

Question 51

______ ___ ____ ___ _____- brandies said in dissent to Mahon was you cannot separate out this piece and say they took 100% of the value of this piece therefore it is a taking because you can’t cut it up you have to look at the whole thing. In the whole thing there is still value therefore property as a whole analysis doesn’t work.

Answer 51

Property as a Whole Analysis

Question 52

To be fair the government action could have significantly reduced that is why we do the second test. Not always going to give you numbers. Appears to be a viable business that is earning money every day. If this law didn’t exist to encumber their 55 stories, they could be earning more money, but they are still earning money just not as much.

What does this refer to?

Answer 52

Value of the property with the regulation v. the value of the property without the regulation.

Question 53

______: plaintiff has alleged a taking. If a regulation goes too far it is a taking. Let’s try to figure if it went too far. In order to figure out if it went too far we are going to do a series of tests.

Answer 53

Mahon

Question 54

Penn Central Balancing Test
_____ ___:
The extent to which the regulation interfered with distinct investment-backed expectations.

Answer 54

Prong 3

Question 55

Penn Central Balancing Test
Prong 3:
The _____ to which the ______ interfered with distinct investment-backed expectations.

Answer 55

extent
regulation

Question 56

Penn Central Balancing Test
Prong 3:
The extent to which the regulation ________ with _______ ________-___________ expectations.

Answer 56

interfered

distinct investment-backed

Question 57

Penn Central Balancing Test
Prong 3:
The extent to which the regulation interfered with distinct investment-backed ________.

Answer 57

expectations.

Question 58

What does that mean? What it is really asking is when you acquired this property did you already know that you were going to have to go to the LPC if you wanted to make any change, did you already know it was going to be a pain to change it because it was a historic preservation. If you already knew that then you don’t have a strong argument under ________ ___.

Answer 58

Prong 3

Question 59

Palazzolo case and he knew when he acquired the property that you couldn’t develop on the waterfront. He didn’t win under prong 3. Did you really expect that you could do whatever you wanted with this land when you got it? If you had a reasonable basis for that expectation and then everything changed then you have a great case under prong 3. !!

Answer 59

!!

Question 60

Who in zoning has a great case under prong 3?

If it was legal to do what you were doing it, then you expect to be able to continue doing it.

Answer 60

Vested rights people – legal when I bought the land and started construction to use it for this purpose, so I really truly expected to get a return on my investment by completing this project.

Prong 3 is easier to understand when you put it in the zoning framework.

Question 61

This prong is explained by scholars as a _________ analysis in prong 3. Looking at what is best for everyone in determining just compensation. We want to know when a regulation goes too far. We should look at the effect it has on our system. Not a big effect not a taking that deserves compensation. Encourage developers to buy here and if not acknowledging this as a taking and paying just compensation is going to impact future development in this area that is a bad thing.

Answer 61

utilitarian

Question 62

_________ perspective- you are a big-time real estate developer with M’s, and you want to invest. Not going to invest in places subject to the LPA.

Answer 62

Utilitarian

Question 63

Different perspectives when you do prong 3 analysis.
1. _______ _______: did the people who owned GCT know when they bought it that it was subject to the LPA and it would be hard to build and they bought it anyway. Not a strong argument on prong three.

Answer 63

Plaintiff’s Standpoint

Question 64

Different perspectives when you do prong 3 analysis.
2.Bigger Picture: Is the way that this particular law applies to property owners who are subject to it so egregious that nobody is going to _______ _______ and nobody new is going to _____ and try to _______ because it is a waste of time.

Answer 64

build anything

buy

develop

Question 65

Applying second aspect of analysis here and big picture – if you had a lot of money and wanted to do development in NYC and you knew all the details including the fact that owner of GCT could have revised the plans many more times to get approval, but they didn’t. What would you want to know as an investor that likes the appearance of historic buildings. What fact finding would you do?

Answer 65

Had anybody ever been approved by the LPC and see examples of what got approved.

Maybe 5 or 10 story additions that got put on to historic buildings?

What has been the financial turnaround for those investors?

Question 66

If they had said the building is this tall say 3 stories you may want to double the height and bring some of the arches up. You want to have the top half look the same as the bottom half. No reason they would have turned that down. Challenge was the extreme height and the modern architecture that was pre-existing. Interview if you could the LPC and see how inclined they are to ever accept proposals. How many historic buildings have had additions?

________ – see what is in the LPA and read it to find out whether or not there is adequate guidance for LPC to help guide them in making ________ and _______ decisions.

Answer 66

standards

arbitrary and unreasonable

Question 67

Fact pattern – asked to be council for the guy that can’t build 55 stories or council for someone else who hasn’t yet submitted a plan and what would they want to do to research to have it be approved?

Answer 67

If you were representing a developer, you need to get the ordinance and read it and know what the act says- how tall are all the other buildings on the block.

If you keep it as short as the tallest building on the block, maybe that is one of their standards and more likely to approve.

Architectural design elements from the original structure up. Maybe that is one of the standards. Architectural design up or the color scheme up maybe more likely to approve you – idk but what you want to know

Question 68

Property owners protect their rights against a 55-story addition going on to some other building – ________ _________ You would have to get a ______ _________. If you own a Hotel that has a fabulous view of whatever is on the other side of GCT and people want to stay in your hotel because they can see it, it might be good to enter into a negative easement that they are never going to build over x height. Would have to pay a whole lot of money but you can do it.

Answer 68

Negative Easement

Negative Easement

Question 69

Can you win as a P under Penn Central if you satisfy 2 of the 3 yes. 1 of the 3 very well and ishy on some other ones maybe. Maybe you have lost 99% of the value of your property in prong 2 and it is sort of interfered with distinct investment backed maybe be a taking. GENERALLY,

Answer 69

you have to have 2 out of 3 to win.

Question 70

Penn Central Transportation vs. City of New York

Identified a ‘BALANCING TEST’ as “ad hoc, factual inquiries” into three factors
1. ?
2.
3.

Answer 70

1. The character of the governmental action (taking more readily found when a physical invasion by the government).

Question 71

Penn Central Transportation vs. City of New York

Identified a ‘BALANCING TEST’ as “ad hoc, factual inquiries” into three factors
1.
2. ?
3.

Answer 71

2. The economic effect of the regulation on the claimant.

Question 72

Penn Central Transportation vs. City of New York

Identified a ‘BALANCING TEST’ as “ad hoc, factual inquiries” into three factors
1.
2.
3. ?

Answer 72

3. The extent to which the regulation interfered with distant investment-backed exceptions.

Question 73

Recall the Dissent in _____ by Justice Brandeis, Penn Central adopted the “property as a whole” rule.

Answer 73

Mahon

Question 74

______ Case:
The regulation here impacts an owner’s most fundamental RIGHT TO EXCLUDE, “One of the most essential sticks in the bundle of rights that are commonly characterized as property.”

Answer 74

Loretto

Question 75

Loretto Case:
The regulation here impacts an owner’s most fundamental ______ ____ ______, “One of the most essential sticks in the bundle of rights that are commonly characterized as property.”

Answer 75

RIGHT TO EXCLUDE

Question 76

Hallmark movies:
Loretto has a building, and a lot of times people do cool stuff with the roof in big buildings. They put up twinkle lights and fancy dinner and music and romantic dinner. Imagine that Loretto wants that for the people who live in her building. Image last 10 minutes of the movie and they are about to kiss and then you trip on the cable box somebody goes over. It doesn’t end happy because somebody just fell off the building. Cable company thinks it is not in the way, but it could interfere with the aesthetic.
Loretto is mad and thinks that the state of new York has forced her to let the cable company come in is a taking and she is mad.

You can barely see the wires, but she is upset. We are trying to figure out whether or not what happens here qualifies as a taking.
Were the cable wires a taking?

Answer 76

Yes, they were.

Question 77

Categorical Rule” established in Loretto:

• When the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, the character of the government action not only is an important factor, it is determinative.

Phrase it:

Answer 77

A permanent physical invasion is a taking.

Question 78

While a physical invasion may be subject to the ________ _______, once such physical invasion becomes permanent, it cannot be exempt from the “Takings Clause.”

Answer 78

balancing test

Question 79

Cable wire is actually on her property. However small it is physically present, and it is not going anywhere. It is supposed to stay there always. ________ ________ ________. It is absolutely a taking because it is permeant and physically placed on her land.

Answer 79

Permanent Physical Occupation

Question 80

When the court makes this determination, they say that property rights are divided into three categories:
1. ?
2.
3.

Answer 80

1. The right to possess

Question 81

When the court makes this determination, they say that property rights are divided into three categories:
1.
2. ?
3.

Answer 81

2. The right to use it

Question 82

When the court makes this determination, they say that property rights are divided into three categories:
1.
2.
3. ?

Answer 82

3. The right to dispose of it.

Question 83

Hallmark example with roof: ugly cable box on roof not going to be able to have romantic dinner and the dancing because cable box is in the middle of it. The way that the owner is going to use the property forevermore has changed because of the ________ _________ ________.

Answer 83

permanent physical invasion

Question 84

The right to dispose of property: the right to ____ ___.

Answer 84

sell it.

Question 85

The right to dispose of property: the right to sell it. Good for Loretto. Cable access does to property in 1982 it makes it more valuable. If the permanent physical invasion had made the property less valuable, she would have had more damages. It is still a taking Her damages were 1.

Loretto felt so passionately that she needs to be declared a taking although she is only getting a 1.
!!

Answer 85

!!

Question 86

Once we have a ______ ______ _______ of the property the only thing left to talk about is how much your damages are. It is a taking.

Answer 86

permeant physical occupation

Question 87

References to _______ ______- Loretto, Hadacheck and Lucas.

Answer 87

categorical rules

Question 88

_______ doesn’t mean what you think. If something happens regularly then it is permanent.

Answer 88

permanent.

Question 89

If something happens ________ then it is _______.

Answer 89

regularly

permanent

Question 90

Fact pattern: every time a night club was open there was a governmental invasion. Every minute of every hour the nightclub was open that physical invasion was present. When the nightclub was closed the invasion wasn’t there. Every minute open the invasion was there and to act as a deterrent to underage drinking. Gave that in an essay to get people to recognize that permeant can mean regulatory recurring, There every time the business is open under Loretto good argument that it is a permanent physical invasion.

Bought House on curvy road. Sign close to the road and the sign has a curvy arrow that looks like an s. why is the country worried about letting people know there is a curve because there is a lake and if they take the curve too tight, they will end up in the lake. When I go to look at the house, I notice the sign with the curvy arrow on it. Permanent physical invasion by the government. I don’t want that sign there. When I look out my window, I don’t want to see the sign. Might I go to court and allege I have suffered a permanent physical taking and get them to take the sign down. I can’t do it and here is why- when I bought, the property –it was subject to a ___________ ____________ __________ in favor of the county. All of the land by the road is part of the easement that the county has. I knew I was subject to the easement.

Answer 90

permanent pre-existing easement

Question 91

Exception to Loretto even if you have a permanent physical invasion – you will lose in a takings claim if the permanent physical invasion is in the path of a preexisting easement. You already agreed to the easement, and you knew it was there when you bought it. That sign came with the place. I can’t get compensation for it being a taking. !!

Answer 91

!!