Week 14 Flashcards
Eminent domain requires taking for ___
public use with just compensation
Purposes of eminent domain
address bilateral monopoly
require taxpayers to cover payments to extreme holdouts
Fed govt has power of eminent domain as ___
implied attribute of sovereignty
Requirements for eminent domain
(1) delegated power by the legislature
(2) delegated power broad enough for proposed project
(3) necessary to complete
Early view/Thomas view of public use
actual use by the public
Currently SCOTUS interprets public use as
public advantage or benefit
Courts are ____ in determining public advantage
highly deferential to leg
Kelo says that ____ is a legit rationale for a government taking
economic development
NY courts adhere to___ of public use that includes ___
broad conception, some economic development projects
Kelo cites two cases in support one where __ and one where ___
upheld redevelopment plan targeting blight, title from lessors to lessees to break up oligarchy
Kennedy approach to public use
strike down taking that has only pretextual public benefits but actually favored to benefit particular party
O’Connor dissents saying that public use is not ___
coterminous with state’s police powers
Just compensation is determined __
objectively by FMV
Compensation for eminent domain is the value of the ___
highest and best use of the property
FMV in eminent domain is a bit of a fiction because __
property not actually on the market
Methods for appraising FMV
(1) examine recent transactions of particular property
(2) recent transactions of similar parcels in the area (most common)
(3) estimate rental value and capitalizing
(4) replacement costs of land and improvements
FMV is the value at ____
time of taking (or Miller time govt committed to the project)
Unit rule means that FMV of ___
undivided property in fee simple and then divided among parties according to interests
Partial takings get ___
severance damages
What are severance damages
LO entitled to FMV of what is taken plus loss in value to part not taken
Offsetting benefits
if taking increases value of remaining land, govt can subtract it from compensation it must pay for land taken
Only benefits that ____ can be offset
helped particular owner, not increased value to all land in community
More recently there is a simple rule in partial takings to ___
compare FMV of property before vs. after
what is assembly gain
govt gets gain from assembling a lot of land
In eminent domain, gain from _____ goes to condemnees
overcoming legal fragmentation of interests (eliminate value-suppressing splits in ownership)
What do quick take statutes do
transfer title to condemning authority before all contested issues resolved to streamline proceedings
Quick takes still allow parties to litigate ___
if compensation adequate
Eminent domain may undercompensate people because __
if actually wanted to sell, land wouldn’t be condemned at all so subjective value not being accounted for
Some argue that many costs in eminent domain are accounted for because ___
reflected in FMV, everything else idiosyncratic
Miller says that FMV is determined at ___ BUT __
at date of taking BUT excludes land’s special value to condemnor and any value added by public improvements
Miller says a payment the govt deposits with the court at the time of the taking is ___
an estimated comp not a final settlement
Miller says govt entitled to keep ___
added value from condemnation
Miller says that “just compensation” also means ___
just to public, not greater than FMV
Milwaukee VFW says that just compensation for a property held in partial estate by multiple owners is determined under ___
unit rule which assesses FMV as though only one party owned the property in undivided fee simple
Milwaukee VFW dissent says that ____ cannot be just compensation
zero
Merrill says that Milwaukee VFW should be ___
paying govt to condemn since taking negative value asset of their hands
Flight 93 held that the highest and best use of property was ___
as a memorial and estimated revenue from there
Flight 93 may be distinct from Miller in that __
S family had begun to create their own memorial
Merrill wonders if Flight 93 a case of unjust enrichment because __
S did nothing to earn higher value of land
Counterargument to Flight 93 as unjust enrichment
accession, owner entitled to any benefits that may accrue on larger property that they own
Fed statute authorizes fed govt to use patented tech and copyrighted works ___
without owner’s consent but upon payment of just comp
It is not a taking when the govt uses its police power to __
abate a public nuisance
While property may be regulated to a certain extent, if it goes too far it will be recognized __
as a taking
Only ____ police power
states have
line between eminent domain and police power (no comp)
only states have police power
Sax theory for distinguishing eminent domain from nuisance regulation
when govt act as enterprise (ED), when take act mediating incompatible uses no
Sax said that governmental action that regulated spillover effects associated with property is a __
non-compensable police power measure
Armstrong says that a regulatory taking exists when the govt imposes costs on an individual that ___
in all fairness and justice should be borne by public as a whole
Mahon factors for a taking
(1) diminution in value caused by regulation
(2) public nuisance
(3) reciprocity of advantage
what is reciprocity of advantage
if public benefits on average compensate for private harm and if individual gets some of those benefits)
Penn Central ad hoc test factors
(1) economic impact of regulation
(2) interference with owner’s reasonable investment backed expectations
(3) character of government action
Penn central economic impact
if statute mitigates loss, court less likely to find a taking
Penn Central interference with owner expectations
If owner (in context of whole parcel) retains reasonable return from property ownership court less likely to find a taking
Penn central character of govt action
more like physical invasion more likely a taking, more like protection against nuisance like harm less likely a taking
Loretto says that _____ is a taking
permanent physical occupation of property by a third-party under govt regulation
Dolan says that the govt may not without just compensation place ______ unless ____
land use conditions on an approval of private property development plan, rough proportionality between the conditions and the impact of the proposed development
Dolan extends to ___
cash
Cedar Point says that any ____ even if ___
permanent right of access to property not otherwise open to the public, intermitent
Exceptions to Cedar Point
(1) isolated tort-related trespass
(2) access rights consistent with background understandings of property (necessity, searches, seizures)
(3) licenses that permit entry for inspections that are consistent with Dolan proportionality
Mahon says that regulations on property use under police power ___
constitute takings when especially severe determined by Mahon test
Mahon facts
deed reserved right to remove coal under land and assigned risk of surface damage to Ps BUT Act forbade mining in any way that caused damage to a dwelling
Mahon says that Act not legit use of police power because __
restricted mining in places where right to mine had been reserved
Mahon says that the ______ as compared to ___
diminution of value in D’s property great, minimal public interest served in prevening damages to single house
Mahon Brandeis dissent sees as appropriate use of police power because sees __
restriction as addressing a public nuisance (releasing noxious gases)
Brandeis says unit to measure diminution is ___
whole property (of mine shafts) not just pillar that must be left in place
Schoene holds that when forced to choose between preserving one class of property over another when two exist in dangerous proximity because of natural causes ___
state may destroy lesser valued to save class of greater value to the public
Schoene facts
order to cut cedar tress to protect apples, got expense of removing but no comp for the trees value
Schoene holds that the apple orchard had ___ than the cedars
far greater public utility and statewide commercial value
Penn Central says that a city’s ____ don’t constitute a taking
restrictions on development of individual historic landmarks as part of comprehensive preservation program
Penn Central was not a taking because the restrictions were ___ AND ___
substantially related to promotion of general welfare, let Ps make reasonable use of site and transfer development rights to nearby properties
Abrogation of right to sell personal property (eagle feathers) is ___
not a taking
Penn Central came up with a new test because it fit into neither __
nuisance nor reciprocity of advantage
Lower courts are split on whether Penn Central established __
balancing or 1 strike out test
Loretto says if taking permanent and physical it will __
always be taking regardless of Penn Central
Why does Loretto focus so much on physicality
(1) no longer fully possess
(2) cannot exclude others
(3) cannot properly dispose of property because permanent intrustion strips of value
Loretto dissent says no distinction between this legislation and __
other LT legislation (requiring mailboxes)
Loretto says physical more serious than __
temp or intrusion that merely limits use
Horne says that a govt mandate to relinquish ____ is a per se taking
specific, identifiable and safe personal property
Horne facts
farmers must set aside portion of raisin crops to maintain healthy raisin market
Dolan is an expansion of Loretto in that it __
deems an easement to be a per se taking
Dolan was a taking because the city could not justify why it needed a ___
public (rather than private) greenway
Dolan says that although pathway could offset some of new traffic from bigger store, ___
speculation not sufficient to warrant land use requirement
Cedar Point rejects argument that physical invasion __
must be permanent to constitute per se taking
Cedar Point distinguishes from cases where __
property open to the public
Cedar Point rejects argument that taking must accord to __
some form of property recognized in CA
Cedar Point suggests SCOTUS taking increasingly ____
essentialist view of property because very worried about right to exclude
