Zoning and the Takings Clause

Question 1

Facial Challenge

Answer 1

The law on its face (as it is written) is unconstitutional-

Question 2

Nonconforming Use

Answer 2

A use that exists at the time of passage of a zoning act and that doesn’t conform to the statute cannot be eliminated at once. Some statutes provide for amortization- i.e, the gradual elimination of such nonconforming use.

Question 3

Pennsylvania Coal Co v. Mahon

Answer 3

While the use of a property may be regulated, overregulation will be considered a taking.

Question 4

2 Types of Categorical Takings

Answer 4

1. Physical Invasion

2. Denial of all economically beneficial use of the property

Question 5

2 Types of Compensatory Takings

Answer 5

1. Physical Invasion

2. Denial of all economically beneficial use of the property

Question 6

14th Amendment

Answer 6

Due Process Clause- State shall not take life, liberty or property w/o due process of the law

Question 7

5th Amendment

Answer 7

“takings clause” private property will not be taken for public use w/o just compensation

Question 8

As Applied Challenge

Answer 8

Party may claim that the statute, as applied in a particular case, is unconstitutional (Claim must be ripe-

Question 9

When does a right (or use) for a property vest?

Answer 9

1. (Majority) CA- In order to get a vested right you must first get a building permit and have expended a substantial amount of money/labor on reliance on the permit
2. Minority- One must submit a valid and complete application for a permit.

Question 10

Exaction

Answer 10

A condition of a permit. Wont be considered a taking if roughly proportional to the burden the project will place on the public interest

Question 11

In order to have a legal non-conforming use..

Answer 11

1. Have to have a prior use
2. Has to be lawful
3. Zoning is enacted to make that use illegal in that zone

Question 12

categorical taking

Answer 12

Occurs where physical invasion or the regulation has the effect of depriving the landowner of all economically beneficial use

Question 13

Ripeness

Answer 13

Occurs where the party has exhausted all procedural formalities (Such as appeal)

Question 14

Ripeness

Answer 14

Occurs where the party has exhausted all procedural formalities (Such as appeal)

Question 15

Nolan/Dollan Test

To determine if exaction is valid

Answer 15

Must be an essential nexus bt the condition and the burden on the public AND the condition must be roughly proportional to the burden being placed on the public

Question 16

Nuisance Doctrine (exception)

Answer 16

If the regulation does no more than what could have been achieved by raising a nuisance claim in court then there is no need for compensation even when the regulation reduces the value of the property to 0.