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Property > Week 14 > Flashcards

Week 14 Flashcards

1
Q

Eminent domain requires taking for ___

A

public use with just compensation

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2
Q

Purposes of eminent domain

A

address bilateral monopoly
require taxpayers to cover payments to extreme holdouts

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3
Q

Fed govt has power of eminent domain as ___

A

implied attribute of sovereignty

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4
Q

Requirements for eminent domain

A

(1) delegated power by the legislature
(2) delegated power broad enough for proposed project
(3) necessary to complete

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5
Q

Early view/Thomas view of public use

A

actual use by the public

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6
Q

Currently SCOTUS interprets public use as

A

public advantage or benefit

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7
Q

Courts are ____ in determining public advantage

A

highly deferential to leg

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8
Q

Kelo says that ____ is a legit rationale for a government taking

A

economic development

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9
Q

NY courts adhere to___ of public use that includes ___

A

broad conception, some economic development projects

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10
Q

Kelo cites two cases in support one where __ and one where ___

A

upheld redevelopment plan targeting blight, title from lessors to lessees to break up oligarchy

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11
Q

Kennedy approach to public use

A

strike down taking that has only pretextual public benefits but actually favored to benefit particular party

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12
Q

O’Connor dissents saying that public use is not ___

A

coterminous with state’s police powers

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13
Q

Just compensation is determined __

A

objectively by FMV

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14
Q

Compensation for eminent domain is the value of the ___

A

highest and best use of the property

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15
Q

FMV in eminent domain is a bit of a fiction because __

A

property not actually on the market

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16
Q

Methods for appraising FMV

A

(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

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17
Q

FMV is the value at ____

A

time of taking (or Miller time govt committed to the project)

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18
Q

Unit rule means that FMV of ___

A

undivided property in fee simple and then divided among parties according to interests

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19
Q

Partial takings get ___

A

severance damages

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20
Q

What are severance damages

A

LO entitled to FMV of what is taken plus loss in value to part not taken

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21
Q

Offsetting benefits

A

if taking increases value of remaining land, govt can subtract it from compensation it must pay for land taken

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22
Q

Only benefits that ____ can be offset

A

helped particular owner, not increased value to all land in community

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23
Q

More recently there is a simple rule in partial takings to ___

A

compare FMV of property before vs. after

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24
Q

what is assembly gain

A

govt gets gain from assembling a lot of land

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25
Q

In eminent domain, gain from _____ goes to condemnees

A

overcoming legal fragmentation of interests (eliminate value-suppressing splits in ownership)

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26
Q

What do quick take statutes do

A

transfer title to condemning authority before all contested issues resolved to streamline proceedings

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27
Q

Quick takes still allow parties to litigate ___

A

if compensation adequate

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28
Q

Eminent domain may undercompensate people because __

A

if actually wanted to sell, land wouldn’t be condemned at all so subjective value not being accounted for

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29
Q

Some argue that many costs in eminent domain are accounted for because ___

A

reflected in FMV, everything else idiosyncratic

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30
Q

Miller says that FMV is determined at ___ BUT __

A

at date of taking BUT excludes land’s special value to condemnor and any value added by public improvements

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31
Q

Miller says a payment the govt deposits with the court at the time of the taking is ___

A

an estimated comp not a final settlement

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32
Q

Miller says govt entitled to keep ___

A

added value from condemnation

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33
Q

Miller says that “just compensation” also means ___

A

just to public, not greater than FMV

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34
Q

Milwaukee VFW says that just compensation for a property held in partial estate by multiple owners is determined under ___

A

unit rule which assesses FMV as though only one party owned the property in undivided fee simple

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35
Q

Milwaukee VFW dissent says that ____ cannot be just compensation

A

zero

36
Q

Merrill says that Milwaukee VFW should be ___

A

paying govt to condemn since taking negative value asset of their hands

37
Q

Flight 93 held that the highest and best use of property was ___

A

as a memorial and estimated revenue from there

38
Q

Flight 93 may be distinct from Miller in that __

A

S family had begun to create their own memorial

39
Q

Merrill wonders if Flight 93 a case of unjust enrichment because __

A

S did nothing to earn higher value of land

40
Q

Counterargument to Flight 93 as unjust enrichment

A

accession, owner entitled to any benefits that may accrue on larger property that they own

41
Q

Fed statute authorizes fed govt to use patented tech and copyrighted works ___

A

without owner’s consent but upon payment of just comp

42
Q

It is not a taking when the govt uses its police power to __

A

abate a public nuisance

43
Q

While property may be regulated to a certain extent, if it goes too far it will be recognized __

A

as a taking

44
Q

Only ____ police power

A

states have

45
Q

line between eminent domain and police power (no comp)

A

only states have police power

46
Q

Sax theory for distinguishing eminent domain from nuisance regulation

A

when govt act as enterprise (ED), when take act mediating incompatible uses no

47
Q

Sax said that governmental action that regulated spillover effects associated with property is a __

A

non-compensable police power measure

48
Q

Armstrong says that a regulatory taking exists when the govt imposes costs on an individual that ___

A

in all fairness and justice should be borne by public as a whole

49
Q

Mahon factors for a taking

A

(1) diminution in value caused by regulation
(2) public nuisance
(3) reciprocity of advantage

50
Q

what is reciprocity of advantage

A

if public benefits on average compensate for private harm and if individual gets some of those benefits)

51
Q

Penn Central ad hoc test factors

A

(1) economic impact of regulation
(2) interference with owner’s reasonable investment backed expectations
(3) character of government action

52
Q

Penn central economic impact

A

if statute mitigates loss, court less likely to find a taking

53
Q

Penn Central interference with owner expectations

A

If owner (in context of whole parcel) retains reasonable return from property ownership court less likely to find a taking

54
Q

Penn central character of govt action

A

more like physical invasion more likely a taking, more like protection against nuisance like harm less likely a taking

55
Q

Loretto says that _____ is a taking

A

permanent physical occupation of property by a third-party under govt regulation

56
Q

Dolan says that the govt may not without just compensation place ______ unless ____

A

land use conditions on an approval of private property development plan, rough proportionality between the conditions and the impact of the proposed development

57
Q

Dolan extends to ___

A

cash

58
Q

Cedar Point says that any ____ even if ___

A

permanent right of access to property not otherwise open to the public, intermitent

59
Q

Exceptions to Cedar Point

A

(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

60
Q

Mahon says that regulations on property use under police power ___

A

constitute takings when especially severe determined by Mahon test

61
Q

Mahon facts

A

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

62
Q

Mahon says that Act not legit use of police power because __

A

restricted mining in places where right to mine had been reserved

63
Q

Mahon says that the ______ as compared to ___

A

diminution of value in D’s property great, minimal public interest served in prevening damages to single house

64
Q

Mahon Brandeis dissent sees as appropriate use of police power because sees __

A

restriction as addressing a public nuisance (releasing noxious gases)

65
Q

Brandeis says unit to measure diminution is ___

A

whole property (of mine shafts) not just pillar that must be left in place

66
Q

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 ___

A

state may destroy lesser valued to save class of greater value to the public

67
Q

Schoene facts

A

order to cut cedar tress to protect apples, got expense of removing but no comp for the trees value

68
Q

Schoene holds that the apple orchard had ___ than the cedars

A

far greater public utility and statewide commercial value

69
Q

Penn Central says that a city’s ____ don’t constitute a taking

A

restrictions on development of individual historic landmarks as part of comprehensive preservation program

70
Q

Penn Central was not a taking because the restrictions were ___ AND ___

A

substantially related to promotion of general welfare, let Ps make reasonable use of site and transfer development rights to nearby properties

71
Q

Abrogation of right to sell personal property (eagle feathers) is ___

A

not a taking

72
Q

Penn Central came up with a new test because it fit into neither __

A

nuisance nor reciprocity of advantage

73
Q

Lower courts are split on whether Penn Central established __

A

balancing or 1 strike out test

74
Q

Loretto says if taking permanent and physical it will __

A

always be taking regardless of Penn Central

75
Q

Why does Loretto focus so much on physicality

A

(1) no longer fully possess
(2) cannot exclude others
(3) cannot properly dispose of property because permanent intrustion strips of value

76
Q

Loretto dissent says no distinction between this legislation and __

A

other LT legislation (requiring mailboxes)

77
Q

Loretto says physical more serious than __

A

temp or intrusion that merely limits use

78
Q

Horne says that a govt mandate to relinquish ____ is a per se taking

A

specific, identifiable and safe personal property

79
Q

Horne facts

A

farmers must set aside portion of raisin crops to maintain healthy raisin market

80
Q

Dolan is an expansion of Loretto in that it __

A

deems an easement to be a per se taking

81
Q

Dolan was a taking because the city could not justify why it needed a ___

A

public (rather than private) greenway

82
Q

Dolan says that although pathway could offset some of new traffic from bigger store, ___

A

speculation not sufficient to warrant land use requirement

83
Q

Cedar Point rejects argument that physical invasion __

A

must be permanent to constitute per se taking

84
Q

Cedar Point distinguishes from cases where __

A

property open to the public

85
Q

Cedar Point rejects argument that taking must accord to __

A

some form of property recognized in CA

86
Q

Cedar Point suggests SCOTUS taking increasingly ____

A

essentialist view of property because very worried about right to exclude

87
Q
A

Property (15 decks)

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