P: Gov' Tak Lnd
Terms
undefined, object
copy deck
- What do you always ask first in a takings question?
- a. Whether the government action involves physical intrusion or merely regulation
- Define physical taking
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a. A permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.
b. The amount of land is irrelevant, just taking a small percent is enough.
c. The economic impact is irrelevant - What is the general rule regarding regulatory takings?
- a. General: “The 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.â€
- What is the Penn Central test that determines whether a taking has occurred?
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A multi-factor balancing test is employed:
i. The economic impact of the regulation on the claimant
ii. The extent to which the regulation has interfered with distinct investment-backed expectations
iii. The character of the government action - In the Penn Central multi factor balancing test, discuss the economic impact of the regulation on the claimant prong
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1. The regulation must deprive the owner of all economical beneficial or productive use of land.
2. It does not mandate a profitable use.
3. If a piece land must remain in its natural state, then it is likely to have deprived the owner of all economically beneficial or productive use - In the Penn Central multi factor balancing test, discuss the extent to which the regulation has interfered with distinct investement-backed expectations prong
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1. Examines the owner’s reasonable investment-backed expectations about the use of the land.
2. Here, distinguish between existing uses and potential future uses.
3. Most instances, the buyer who purchases land already devoted to a legally permitted use has a reasonable investment backed expectation that the use will continue - In the Penn Central Multi Factor Balancing test, discuss the character of the government action prong
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1. A regulation that is reasonably related to the public health, safety, or welfare is not a taking even if it substantially diminishes the value of the affected land.
2. A nuisance prevention regulation is less likely to be viewed as a taking that on that is mainly oriented toward benefiting the public - What is an exaction?
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1. A requirement that the developer provide specified land, improvements, payments, or other benefits to the public to help offset the impacts of the project. They shift the financial burden of accommodating new development from local government to the private developer, thereby avoiding the need for additional taxes or other public revenues.
2. It is a condition for a land use permit - What is the test for determining whether you have a valid exaction, and therefore not a taking?
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1. There must be an “essential nexus†between the exaction and a legitimate state interest that is serves, and
a. Meaning, there must be a sufficient connection between the end (the state interest) and the means used to achieve that end (the exaction).
2. The exaction must be “roughly proportional†to the nature and extent of the project’s impact.
a. No precise mathematical calculation is required for the rough proportionality test, but a city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.
b. Basically, there must be a connection, and that connection must be reasonable. What public purpose does it serve - What is the definition of a moratoria/delay?
- the suspension of a specific activity
- When does a moratoria/delay become a taking?
- General rule: even this is governed by Penn Central
- What are a state's choices when it has enacted a moratoria/delay?
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iii. State’s choice:
1. Buy the land
2. End the regulation and only pay rental value of the use of the property during the time the regulation was in affect - What damages is an owner entitled to for a permanent taking?
- the owner is entitled to receive the fair market value of the property on the date of the taking
- What damages is an owner entitled to for a temporary taking?
- the fair market value of the use of the property during the taking period
- What other damages may an owner seek besides those for permanent & temporary takings?
- iii. Sue under § 1983 of Civil Rights Acts: Allows one to use for deprivation of constitutional rights. You also get the legal cost and attorney fees