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Con Law (Chapter 8: The Takings Clause)


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Takings Clause
- 5th Amendment provides that private property shall not be taken for public use without just compensation

- Does not forbid expropriation in the public interest, but merely requires the government to pay for it
When can Exercise the power of eminent domain
Both federal and state governments have the inherent authority to exercise the power of eminent domain, provided:

1) The property is taken for a "public use"
2) The government pays "just comepensation"

- Government usually doesn't have to pay for regulations
- Involved a challenge to a District of Columbia law authorizing the taking of private property for the purpose of redeveloping blighted urban areas

- The Court will not consider the desirability of a particular taking, or the extent to which the property must be taken in order to satisfy the public purposes

- Legislature may deem in the public interest to promote beautiful and balanced communities

- The fact that the property might be turned over to a private redeveloper after it is taken does not negate the public objective
Hawaii Housing Authority
- 72 private landowners owned 47% of the land and state used eminent domain to break up the land and the court upheld it

- Federal courts may not 2nd guess legislative determinations in this area as long as the power is not used for a purely private purpose

- Uses may be public if there is public advantage or benefit, even though the property is not used by the general public.

- The state may authorize takings and use by private persons or companies if thought to be in the public interest

- The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose

- Court held that any conceivable public purpose could justify the takings, and the transfers of ownership here were rationally related to reducing the perceived evils of a land oligopoly that interfered with the normal functioning of the residential land market
Kelo v. New Londan
- The state may not take private property for the sole purpose to transfer it to another private party even with just compensation

- The public good does not necessarily mean a blighted area

- Nothing restricts the states from further restricting their abilities on eminent domain.
May a State allow taking to increase tax revenue?
Tests for Determining Regulatory Takings
1) Regulatory takings per se
2) Balancing Test
Regulatory Takings Per Se
- Physical occupation of property regardless to the public interest at stake

- When denyong all economically beneficial use of property

- Temporary development bans are not per se takings
Regulatory Takings "Balancing Test"
1) Economic impact of regulation, particularly the extent to wich the regulation interferes with a reasonable investment expectation; and
2) Character of the government action, including the reasonableness of the regulation
Conditional Permits
In considering whether conditioning a building on a granting of an easement or other public access to land a court must:

1) Determine whether the "essential nexus" exists between the legitimate state interest and the permit condition exacted by the city, and

2) if a nexus exists, decide whether there is a roughly proportionality between the condition and the impact of the development and governmental and social interests
Penn Coal Co.
- Π received title to the surface rights of a parcel of land from Δ, which reserved the right to remove the coal under the surface, then sought to enforce statute that would not allow mining under buildings that would cause them to sink.

- Court found that statute made it commercially impracticable to mine coal under Mahon's house and therefore found that the statute constituted taking

- General rule is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.

1) extent of the diminution in value of the property
- Here statute would totally divest D of its properly reserved right to mine coal

2) extent of the public interest
- Here, a single private house is involved, with no threat to personal safety since adequate notice was given
- State had ordered taking down of cedar trees and only compensated people for removal but not for the actual trees

- The state-ordered destruction of cedar trees that were spreading disease to apple orchards was not a "taking" despite great reduction of value--because the cedar trees were causing harm to an important state industry
- Law required that 50% of the coal below structures must remain for surface support

- The Court found that the statute here has a clear public purpose (to protect health, the environment, and fisical integrity to support the tax base) and the Association failed to show that the statute made it commercially impracticable for its members to continue mining coal.

- The statute did not totally deprive the Πs of their mining rights since all but 2% of the coal could be mined; such a minor limitation did not sustain treating the property as a separate segment for taking purposes
Pen Central Transportation
- The law required the owner of a designated landmark to keep the building’s exterior “in good repair” and to obtain approval from a city commission before making exterior alterations

- Because Penn Central could continue to obtain a "reasonable return" on its investment in the building without the additional office space and the restriction here is reasonably related to public policy of historic preservation, there was no taking

- A restriction on use of property may constitute a “taking” if not “reasonably necessary to the effectuation of a substantial public purpose” or if it has an “unduly harsh impact” on the “distinct investment-backed expectations” of the owner. But the Court balances the public need against the private cost, and no compensation is required for burdens imposed on “all similarly situated property” in order to produce “widespread public benefit”
- statute that required landlords to allow television cables to be installed in their buildings constituted a taking

- A “taking” will almost always be found if there is an actual appropriation or a permanent physical invasion of private property by the government or by authorization of state law. This is true regardless of the state’s interest or the economic impact on the owner
- Lucas purchased 2 residential lots near the seashore, intending to build single-family homes. 2 years later, South Carolina passed an anti-erosion law that barred marking “occupiable improvements” near the shoreline. This effectively barred Lucas from building homes on his land.

- A regulation that permanently denies all economically beneficial or productive use of land is, from the owner’s point of view, equivalent to a physical appropriation.

- Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that that the proscribed use interests were not part of his title to begin with

- Court rejected that there were implied uses of the land
Regulations that are invalid per se
1) Regulations that compel the property owner to suffer a physical "invasion" of his property
- In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation. (Loretto)

2) Where the regulation denies all economically beneficial or productive use of land
- The 5th Amendment is violated when land-use regulation ‘does not substantially advance legitimate state interests or denies an owner economically viable use of his land’
1st English Evangelical Lutheran Church
- The State could “elect to abandon its intrusion or discontinue regulations,” yet it had to pay compensation “for the period of time during which regulations deny a landowner all use of his land.

- Where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective
- The right to claim a “taking” is NOT limited to persons who held title to property at the time a challenged use restriction was imposed.

- RATIONALE: Although the court must consider the reasonable investment backed expectations of the claimant, automatic denial of the right of subsequent purchasers to claim a taking, on the ground that they had notice of an earlier enacted restriction, would effectively strip the ability of the owner to transfer the property after a challenged restriction was enacted
Tahoe Sierra Preservation Counsil
- Found no taking where there was a 32-month moratorium on land development in the Lake Tahoe Basin while a comprehensive land-use plan was being developed for the area

- Temporarily denying an owner of all use of property does not constitute a per se taking

- Instead, the court will carefully examine and weigh all of the circumstances – the planners’ good faith, the reasonable expectation of the owners, the length of the delay (most important), the delay’s actual effect on the value of the property, etc. – in order to determine whether “fairness and justice” require just compensation
- Court found that when The Commission conditioned its grant of permission on the Nollans’ agreement to allow the public to pass across their beachfront land, which was located between 2 public beaches it constituted a taking

- If state says that if you want to add onto your house, then you have to create an easement, this constitutes a taking because the state cannot make you give up a constitutional right

- (In finding that there was no legitimate state interest to support the restriction, the Court stated that scrutiny in takings cases is more rigorous than the minimum rationality standard used in due process and equal protection analyses
- City agreed to approve a permit to expand Dolan’s retail store and pave a parking lot on the condition that Dolan dedicate the land for a public greenway and a bike path

- Under the well-settled doctrine of “unconstitutional conditions” the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use – in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit

- The city may not require her to give up a part of her land to the public to develop her land. The right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”

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