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A - Property 2 > Week 14 RT > Flashcards

Week 14 RT Flashcards

1
Q

Taken advantage of the practice essays and self-assessing and going through the rubric and say it in this way and if you didn’t, going back and studying and trying to write it out again. Rubrics are unique and tell you the fastest way to explain the rules. A whole lot of words to say what I have said in less than a paragraph on a rubric. Rubrics help you succinctly state what you need to. !!

A

!!

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2
Q

Zoning triage for change of use
1. ?
2.
3.

A
  1. see if it is a non-conforming use.
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3
Q

Zoning triage for change of use
1.
2. ?
3.

A
  1. Are the rights vested?
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4
Q

Zoning triage for change of use
1.
2.
3. ?

A
  1. Try to get a use variance
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5
Q

If someone is wanting to change a use see if it is non-conforming use, or then vested rights, or try for a use variance.

How do you get a use variance?

A

Undue Hardship Test: no other reasonable use to which the property can be put.

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6
Q

Effect of notice of the applicable regulation prior to acquiring the property

What case?

A

Palazzolo

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7
Q

Money damage remedy in takings cases

What case?

A

First English

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8
Q

Imposing a moratorium, and broadened analysis of the “property as a whole” rule

What case?

A

Tahoe Sierra

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9
Q

Exactions

What case?

A

Nolan and Dolan

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10
Q

Hadacheck Rule:

A

A regulation that prevents a common law nuisance is NOT a taking.

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11
Q

Hadacheck Rule: A regulation that prevents a common law nuisance is NOT a taking. If it does not prevent a common law nuisance, what do you do?

A

move forward with takings analysis

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12
Q

Mahon:

A

The general rule is that property can be regulated to a certain extent, but if the regulation goes too far it will be recognized as a taking.

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13
Q

We need to find out if the regulation went too far.

What case does this rule come from?

A

Mahon

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14
Q

First Categorical Rule: Loretto:

A

A permanent Physical occupation which has been caused or authorized by the regulation, it will be deemed a taking.

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15
Q

Second Categorical Rule: Lucas:

A

Where a regulation denies all economically beneficial or productive use of land, it will be recognized as a taking.

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16
Q

_______ the 100% rule. If somebody has lost 99% of the value of their property it is not a Lucas taking. It may have a great case for a _____ _______ taking.

A

Lucas

Penn Central

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17
Q

Exceptions or Defenses to the categorical taking rules:
Loretto: ?
Lucas:

A

The Loretto does not apply if the government is merely asserting a permanent easement that was a pre-existing limitation upon the landowners title to the property.

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18
Q

Exceptions or Defenses to the categorical taking rules:
Loretto:
Lucas: ?

A

Lucas: The Lucas rule does not apply if there is a Hadacheck situation.

Even if you have lost 100% of the value of your property if it was to prevent a common law nuisance you cannot recover.

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19
Q

Penn Central Balancing Test:
1.
2.
3.

A
  1. The Character of the governmental Action
  2. The economic effect of the regulation on the claimant
  3. The extent to which the regulation interfered with distinct investment-backed expectations.
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20
Q

Penn Central Balancing Test:
(1) The Character of the Governmental Action
What does this mean?

A

Was there a physical invasion?

Did the government act cause a physical invasion? Actual Tangible thing on your land.

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21
Q

Pen Central Balancing Test:
(2) The economic effect of the regulation on the claimant.

What does this mean?

A

(1) Before and After Test: value of the property before the government act and the value after.

(2) 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 entirely abrogated. We have to consider the value of the parcel as a whole.

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22
Q

What is the property as a whole analysis you keep forgetting?

A

We have to consider the value of the parcel as a whole.

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23
Q

Penn Central Balancing Test:
(3) The extent to which the regulation interferes with distinct investment-backed expectations.

What does this mean?

A

How is the regulation going to impact future development? Are we discouraging this by allowing this governmental act to go uncompensated. How does it affect this particular community? New York city – land preservation act – may think about it from standpoint of the plaintiff. Palazzolo knew they couldn’t build there when they acquired the property, but they wanted to complain about it later. Did you have an expectation that you could build there if the law said you couldn’t probably not. Big picture community as a whole or zoom in standpoint of the plaintiff. Test used in 99% of the taking’s cases.

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24
Q

Likely you will have to do a Penn central analysis. Take the time to learn this test and how to define it and practice applying it. !!

A

!!

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25
Q

Know slide verbatim. I want to know what the slide says. PENN CENTRAL !!

A

!!

26
Q

Williamson County: Ripeness Rules A claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.

What does this mean simplified?

A

You cannot go to court until you have a final decision at the administrative level.

27
Q

The state litigation requirement of Williamson Co. is overruled.

What case?

A

Knick Case

28
Q

HOLDING: A property owner has an actionable 5th Amendment takings claim when the government takes his property without paying for it, and therefore may bring his claim in federal court under 42 U.S.C 1983 at that time.

What case?

A

Knick

29
Q

Can choose to go to court at state or federal level.

What case?

A

Knick

30
Q

Once a plaintiff seeks just compensation in state court based upon a Fifth Amendment claim, or based upon a claim that is substantively the same as the Fifth Amendment, the plaintiff does not have the right to re-litigate such claim in federal court.

What case?

A

San Remo

31
Q

What is the rule from San Remo?

A

Once a plaintiff seeks just compensation in state court based upon a 5th Amendment claim, or based upon a claim that is substantively the same as the Fifth Amendment, the plaintiff does not have the right to re-litigate such claim in federal court.

32
Q

Once a plaintiff seeks ______ _______ in _____ ______ based upon a 5th Amendment claim, or based upon a claim that is substantively the same as the Fifth Amendment, the plaintiff does not have the right to re-litigate such claim in _____ ______.

A

just compensation

state court

federal court

33
Q

No two bites at the apple in the forum of your choice.

What case?

A

San Remo

34
Q

When a regulation is found to have gone “too far,” i.e., found to cause a taking of private property, merely invalidating the regulation is a sufficient remedy to meet the demands of Just Compensation Clause.
A. True
B. False

A

B. False

This is false because merely invalidating is not a sufficient remedy instead you have to pay compensation.

35
Q

Question: What is the effect of plaintiff having notice of the applicable regulation prior to acquiring the property?

Does property owner’s notice of a regulation, when the property is acquired, bar or waive the property owner’s right to challenge the constitutionality of the regulation?

A

No. it doesn’t you can still go to court and complain about it. Going to court does not mean winning in court. You can get your day in court.

36
Q

So, if a person knows in advance of property acquisition that their contemplated use of the property is impermissible, they can still argue that a taking has occurred if they purchase that property later and want to use it for their original contemplated impermissible use.

What case?

A

Palazzolo v. Rhode Island

37
Q

Palazollo case was decided by United States Supreme Court in what year?

A

2001

38
Q

Entitlement to $$$ for a Temporary Regulatory Taking

What case?

A

First English

39
Q

What year was First Evangelical?

A

1987

40
Q

_______ ______: When a regulation is found to have gone “too far,” i.e., found to cause a taking of private property, merely invalidating the regulation is not a sufficient remedy to meet the demands of Just Compensation Clause.

A

First English

41
Q

First English: When a ________ is found to have gone “too far,” i.e., found to cause a taking of ________ _______, merely invalidating the regulation is not a sufficient remedy to meet the demands of Just Compensation Clause.

A

regulation

private property

42
Q

First English: When a regulation is found to have gone “_____ ______,” i.e., _____ ____ ______ a taking of private property merely invalidating the ________ is not a sufficient remedy to meet the demands of Just Compensation Clause.

A

too far

found to cause

regulation

43
Q

First English: When a regulation is found to have gone “too far,” i.e., found to cause a _____ of private property _______ _______ the regulation is not a sufficient remedy to meet the demands of Just Compensation Clause.

A

taking

merely invalidating

44
Q

First English: When a regulation is found to have gone “too far,” found to cause a taking of private property merely invalidating the regulation ____ ____ a sufficient remedy to meet the demands of ______ ______ _______.

A

is not

Just Compensation Clause

45
Q

First English: When a regulation is found to have gone “too far,” found to cause a taking of private property merely invalidating the regulation is not a ______ ______ to meet the demands of Just Compensation Clause.

A

sufficient remedy

46
Q

_______ _______: Where the government’s activities have already worked a taking, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective, i.e., payment for the temporary taking.

A

First English

47
Q

First English: Where the ________ ______ have already worked a taking, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective, i.e., payment for the temporary taking.

A

government’s activities

48
Q

First English: Where the government’s activities have already worked a ______, no subsequent action by the government can ______ it of the duty to prove compensation for the period during which the taking was effective, i.e., payment for the temporary taking.

A

taking

relieve

49
Q

Noteworthy- _______ when Mahon said – government can regulate to a certain extent
65 years later SC said in First English. If the regulation has gone too far under Mahon, then it is a taking and just getting rid of the government act that was harmful is not enough. The just compensation clause requires more. Pay just compensation for the period of the temporary taking.

A

1922

50
Q

Regulation enforced against plaintiff- start getting damages when act was enacted until the date of judgment which clarifies that they have suffered a taking. The regulation is invalidated. They have accrued damages from the moment the act was enacted until it was determined that they have suffered a taking. They need to be paid for that period.

Sometimes courts take into consideration the plaintiff’s calculation in coming up with fair damages One federal court said to determine the fair rental value of the property without the regulation
!!

A

!!

51
Q

__________: A temporary deferment of specified private action, e.g., receiving permits or undertaking development, for a specified period of time.

A

Moratorium

52
Q

Moratorium: A ______ _______ of specified private action, e.g., receiving permits or undertaking development, for a specified period of time.

A

temporary deferment

53
Q

Moratorium: A temporary deferment of ______ ______ _____, e.g., receiving permits or undertaking development, for a specified period of time.

A

specified private action

54
Q

Moratorium: A temporary deferment of specified private action, e.g., _____ _______ or undertaking development, for a specified period of time.

A

receiving permits

55
Q

Moratorium: A temporary deferment of specified private action, e.g., receiving permits or _____ ______, for a specified period of time.

A

undertaking development

56
Q

Amounts to a temporary “override” of the customary process of land use development.

A

Moratorium

57
Q

Generally, the temporary deferment is imposed while the government proceeds with planning or other organizational activity based upon the determination that, in the absence of the deferment, the planning or organizing would be undermined.

What does this refer to?

A

Moratorium

58
Q

Moratorium’s are temporary and at the end of moratorium you can build again. True or False

A

True

59
Q

Property ownership in terms of time. Live to 118. Easier to own land as an adult. Pretended we can own property for 100 years. The offending M took 2 and ½ years from these people but what is left the rest of the period of time they can own the property 971/2 years left. Temporal aspect – court in Tahoe – property as a whole analysis – we cannot separate the two and a half years from the big, long period of time that you are going to own the property. !!

A

!!

60
Q

A lot of people buy land and sit on it because it is easier to buy land when working but they keep it vacant because they are going to build on it when they retire.

People are mad and they are like you took 100% of my rights to develop this land during the moratorium.
Not how the property as a whole analysis works. Better argument would have been Penn central – the test used in 99% of the taking’s cases in America, maybe use that one.
!!

A

!!

61
Q

Not a Lucas taking because they have not lost 100%. At the end of the time period the M will go away, and you can build on it again… could you sell that property? Not retiring for at least 25 years. Hunter graduates and gets a high paying job and I own property on lake Tahoe, and I am way closer to retirement, and I say I want to retire in the next 2 and ½ years wouldn’t I be better off to sell the property and move somewhere else when I retire. Will you buy my lake Tahoe property if you cannot build on it – yes, the property still has value. Maybe my lot is worth 900K. sell it for 600K and you say good deal you don’t care that you can’t build on because you were not going to anyway. The Lucas argument was flawed because it still has value and then you can do whatever you want to with it.

Be extra sure with a Lucas taking consider property as a whole analysis at the same time. Defeats the plaintiff’s claims here in the Tahoe case. Not a categorical taking under Lucas. Might have been a Penn central taking but that is not what they sued under. !!

A

!!

A - Property 2 (33 decks)

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