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A - Property 2 > Week 13 - Regulatory Takings > Flashcards

Week 13 - Regulatory Takings Flashcards

1
Q

______ _______ essentially, if someone suffers a taking, they need to be compensated for the taking they have suffered. It is not enough to do away with the regulation or the government act that caused the taking you also need to compensate them for their suffering.

A

First English

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2
Q

Hadacheck only applies to common law nuisances.
A. True
B. False

A

A. True

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3
Q

__________: a regulation is never a taking if to prevent a common law nuisance.

A

Hadacheck

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4
Q

Hadacheck: a regulation is never a taking if to prevent a ______ _____ ______.

A

common law nuisance

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5
Q

Situation where the brickyard was in business for several years before the city of Los Angeles residential nature expanded that far out. They passed an ordinance so that no brickyards within these confines of the city. Hadacheck felt that this was problematic because his property was more valuable as a brickyard then for residential purposes.
City was concerned with noise, dust, smoke from the brickyard so they banned all the brickyards. He felt as though he had suffered a regulatory taking because government act meant that they could not use their property for their intended purpose. Hadacheck brought what they thought was a viable claim, but it was rejected.

A __________ is not a ______ if it is to prevent a common law nuisance.

A

regulation

taking

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6
Q

Whether you start with Mahon or Hadacheck it doesn’t matter – start with Mahon and say well to determine if this is a taking, we have to see if the regulation goes too far. Caveat- if the purpose of the regulation is to prevent a common law nuisance it is not going to be a taking under Hadacheck. !!

A

!!

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7
Q

_________: property may be regulated to a certain extent, but if a regulation goes too far it will be recognized as a taking.

A

Mahon

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8
Q

Mahon: property may be _______ to a certain extent, but if a _______ goes too far it will be recognized as a ________.

A

regulated

regulation

taking

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9
Q

You must satisfy all three parts of Penn Central to have a taking.
A. True
B. False

A

B. False

You could come to the correct conclusion that something is a taking under Penn central balancing test if you only have 2/3 maybe even 1.5 but generally 2/3.

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10
Q

_____ _______ spells out the three-prong balancing test.

A

Penn Central

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11
Q

Penn Central spells out the ______ - ______ _______ _______.

A

three-prong balancing test

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12
Q

Penn Central: spells out the three-prong balancing test.
1. ?
2.
3.

A
  1. The character of the governmental action.
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13
Q

Penn Central: spells out the three-prong balancing test.
1.
2. ?
3.

A
  1. The economic effect of the regulation on the claimant - do before and after test and the property as a whole analysis here.
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14
Q

Penn Central: spells out the three-prong balancing test.
1.
2.
3. ?

A
  1. The extent to which the regulation interfered with distinct investment-backed expectations.
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15
Q

With the three prongs we want to state them, explain them, relate them back to the facts, conclude for each prong, conclude overall whether or not we think there has been a taking. If there has been a taking the next thing you need to talk about is ______ under ______ _______.

A

money
First English

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16
Q

1) The character of the governmental action.

What does this mean?

A

1- Was there a physical invasion?

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17
Q

1) The character of the governmental action.

“Was there a physical invasion?”

Does it need to be for a central period of time?

A

NO, not in Penn Central it could last a week and that would be enough.

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18
Q

The rule that says something is a taking if it is a permanent physical invasion comes from what case?

A

Loretto

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19
Q

2) The economic effect of the regulation on the claimant. Do the before and after test and the property as a whole analysis here.

What is the first test under prong 2?

What is the second test under prong 2?

A

The Before and After Test.

Property as a whole analysis.

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20
Q

If no number infer from the fact pattern whether or not the property has decreased in value as a result of the regulation.

What does this refer to?

A

Before and After Test under prong 2 of Penn Central

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21
Q

Property as the Whole Analysis – what is the 1 sentence statement that can best describe the property as a whole analysis:

A

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.

We want to determine what the value of the property is as a whole.

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22
Q

We want to determine what the value of the property is as a whole.

What does this refer to?

A

property as a whole analysis

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23
Q

In Penn Central Plaintiff was alleging that his air rights had been completely taken. Response under Penn Central- we can’t separate the air rights from the whole thing.

The question presented is:

A

Is there any value in the property as a whole?

Yes, GCT is lucrative. Value in that even if we can’t build up. We don’t know if they could build up because they didn’t submit the plans enough with revisions.

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24
Q

whether or not this regulation is deterring future development?

What does this refer to?

A

Prong 3 Penn Central balancing Test

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25
Q

3)The extent to which the regulation interfered with distinct investment-backed expectations.

Easiest way to explain:

A

Whether or not this regulation is deterring future development?

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26
Q

3)The extent to which the regulation interfered with distinct investment-backed expectations.

“Whether or not this regulation is deterring future development?”

How many approaches can you take?

A

2

27
Q

3)The extent to which the regulation interfered with distinct investment-backed expectations.

“Whether or not this regulation is deterring future development?”

What are the 2 approaches you can take?

A
  1. Property Owner
  2. Bigger Picture
28
Q

for example, LPA existed at the time Penn Central bought the property and it said you cannot build anything unless keeping with the historical rules and need the landmark preservation commission to make changes then that would be one form of analysis:

_________________________________________?

A

Did you already know that you couldn’t do this but now you want to complain about it?

29
Q

Such a Terrible law and no one wants to come here and build anymore? Because this law is going to impede progress dramatically? How terrible is this law? Is it so terrible that it is Completely deterring future investment in this area, if it is that terrible, we need to determine this is a taking and we need to pay just compensation. People don’t want to waste money but if you show them if they do suffer a taking, they have a way to be compensated they may be willing to invest if they feel as though they have been made whole.

_______________________________________________?

A
  1. Big Picture: Is this negatively impacting all future development in this jurisdiction?
30
Q

3)The extent to which the regulation interfered with distinct investment-backed expectations.

“Whether or not this regulation is deterring future development?”

  1. Property Owner: ___________
  2. Big Picture: ________
A
  1. Did you already know that you couldn’t do this but now you want to complain about it?
  2. Is this negatively impacting all future development in this jurisdiction?
31
Q

Look at what the government act is. Essay question that had sea turtle protection act and says no restaurants or nightclubs can operate on the beach period. I would say that we have passed prong 3 because all development for restaurants and nightclubs is stopped as a result. from the standpoint of preexisting nightclubs someway to argue zoning you could say I am valid non-conforming use. property owners were already doing restaurants and nightclubs more an issue of now nobody can utilize properties- that fact pattern lends itself to a bigger picture discussion.
Palazzolo will be guide when he became owner of property and already knew law had change and he couldn’t build on it. Individual expectations. Possible you could see fact pattern where it wouldn’t hurt t throw a sentence out for both.
!!

A

!!

32
Q

Any physical invasion is a Loretto taking, no matter how long it lasts.
A. True
B. False

A

B. False

33
Q

With _______: you have to have a permanent physical occupation. Permanent is interpreted as something that occurs regularly. Something only there for a week that is not a Loretto taking. Loretto says a permanent physical occupation equals a taking.

A

Loretto

34
Q

With Loretto: you have to have a ________ ______ ________.

A

Permanent Physical Occupation

35
Q

With Loretto: _________ is interpreted as something that occurs regularly.

A

permanent

36
Q

With Loretto: Permanent is interpreted as something that occurs _______.

A

regularly

37
Q

Something only there for a week that is not a ________ taking. _______ says a permanent physical occupation equals a taking.

A

Loretto
Loretto

38
Q

Loretto:
1st categorical rule:

A

Permanent Physical Occupation Equals A Taking

39
Q

In your analysis of part 1 of the Penn Central Balancing Test, the physical invasion must be permanent.
A. True
B. False

A

B. False

40
Q

_________ __________ is ‘a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant. Knick quoting U.S. v. Clarke.

A

Inverse condemnation

41
Q

Knick case: quotes us v. Clark with respect to what is an inverse condemnation.

Easy way to think about it: inverse condemnation does happen at federal level, but when we talk about regulatory takings the cases that we cover are almost exclusively united states supreme court cases, but takings can also occur at a state level. Can be in state court for taking cases. For a long time, they said you had to go to state before federal but that has changed.

Inverse condemnation - opportunities to assert takings case at the state level. !!

A

!!

42
Q

The property at issue in the Lucas case is situated on the Isle of Palms.
What was the purpose of the act that was passed in the Lucas case?

A

Prevent Erosion

43
Q

What happens in coastal communities as a result of erosion?

A

Houses Wash Away

44
Q

In order to win under Lucas, you must prove that you have lost 100% of the value of your land.
A. True
B. False

A

A. True

45
Q

It is a 100% loss rule.

A

Lucas

46
Q

The rule under Lucas – you have lost all ________ and ______ ______ of your property.

A

economic and beneficial use

47
Q

Lucas v. South Carolina Coastal Council
Second Categorical Rule:

Where regulation denies all _______ _________ or productive use of land, it will be deemed a taking.

A

economically beneficial

48
Q

Lucas v. South Carolina Coastal Council
Second Categorical Rule:

where regulation denies all economically beneficial or __________ ______ of land, it will be deemed a taking.

A

productive use

49
Q

Discussion about a comparison to Hadacheck – Hadacheck tells us that a regulation to prevent a common law nuisance is not a taking.
Public Policy: We want to protect the people. The government is legislating to protect the people and we can’t have individual property owners arguing and litigating that every law that protects the people is a taking because the government will go out of business.
Difference in Hadacheck v. Lucas situation – we can distinguish them because:
Lucas just wanted to build a house same as everybody else. He doesn’t want to do anything that will negatively impact neighbors.
Hadacheck was creating a nuisance. Common law nuisance.
When we talk about common law that law comes from courts, judges, from cases that have been through the courts.
Coastal zone management act come from the state government. If the legislature of the state of SC decides that erosion is a harm and that we should prevent that harm the fundamental difference between that and Hadacheck – it is not preventing a common law nuisance.
!!!

A

!!!

50
Q

Difference in a harm that the common law is trying to prevent from a harm the SC legislature is trying to prevent in 1988. Difference there. True or False.

A

True

51
Q

The State Supreme Court held that the Act that prevented Lucas from building residences on the property involved an exercise of the state’s police power to mitigate harm to the public interest.
Question: Why doesn’t the Hadacheck exception apply?

Who defined the harm?

A

Legislature that decided what was harmful here rather than the common law.

52
Q

Certain things to do upfront before Penn central because they were faster. Loretto and Lucas. If it is a permanent physical invasion, it is a taking and you do not have to Penn Central. !!

A

!!

53
Q

If you have been deprived of 100% of your economically beneficial use of your property, then it is a Lucas taking and you don’t have to Penn central. True or False.

A

True

54
Q

There are some __________ to Loretto and Lucas.

A

exceptions

55
Q

The _______ rules does NOT apply if the government is merely asserting a PERMANENT EASEMENT that was a pre-existing limitation upon the landowner’s title to the property.

A

Loretto

56
Q

The Loretto rules does NOT apply if the ___________ is merely asserting a ________ ________ that was a pre-existing limitation upon the landowner’s title to the property.

A

government

PERMANENT EASEMENT

57
Q

The Loretto rules does NOT apply if the government is merely asserting a PERMANENT EASEMENT that was a ____ __________ limitation upon the landowner’s title to the property.

A

pre-existing

58
Q

Exception to _______: in this hypo when I bought the property that had the 30 foot right away easement for the county – and then I got there and saw the ugly yellow sign within that 30-foot easement would not have been successful alleging a Loretto taking even though the yellow sign is a permanent physical invasion because it was it was the result of a permanent easement that was a pre-existing limitation on my property when I bought it.

A

Loretto

59
Q

Watch out for that because if you see facts for permanent physical invasion. Read carefully to see if the exception might apply. !!!

A

!!!

60
Q

The _______ rule does NOT apply if the regulation limits a use which is prohibited by the “State’s law of property and nuisance already in place,” e.g., prohibited as a common law nuisance.

A

Lucas

61
Q

The Lucas rule does NOT apply if the regulation _____ ___ _____ which is prohibited by the “State’s law of property and nuisance already in place,” e.g., prohibited as a common law nuisance.

A

limits a use

62
Q

Even if you have lost 100% of the value of your property: The Lucas rule does NOT apply if the regulation limits a use which is ________ by the “States law of property and nuisance already in place,” e.g., prohibited as a _______ _____ ______

A

prohibited

common law nuisance

63
Q

If that law is prohibiting a common law nuisance. In other words, Hadacheck. The limitation on claiming a Lucas taking is if you have a Hadacheck situation with a regulation that prevents a common law nuisance. !

A

!

64
Q
A

A - Property 2 (30 decks)

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