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Flashcards in 11) ED Deck (54):
1

F: Timber company takes trees, would be a compensable taking if the land belonged to the Indians H: it's not their land -- gvt has never recognized their legal title (cites M'Intosh + Indians' different concept of property rights) (unfair)

Tee-Hit-Ton Indians v. US

2

F: P wanted to build houses on 2 coastal lots but then new law no permanent habitable structures H: deprivation of all economic value, so it's a taking UNLESS (1) you never had that right to start w (check title) OR (2) prohibited use also wouldn't be allowed under nuisance law

Lucas v. South Carolina Coastal Council

3

Takings: 2 kinds

ED RT

4

F: city makes dvt plan to create jobs and up taxes through big dvt project H: economic improvement of city is a legit public use and ok for gvt to take and give to private actors for htis purpose, bc "rationally related to a conceivable public purpose" -- NO requirement for reasonable certainty that pub bens will actualy happen

Kelo v. City of New London

5

F: city makes dvt plan to create jobs and up taxes through big dvt project H: economic improvement of city is a legit public use and ok for gvt to take and give to private actors for htis purpose, bc "rationally related to a conceivable public purpose" -- NO requirement for reasonable certainty that pub bens will actualy happen

Kelo v. City of New London

6

mailboxes (which could be even worse bc LL has to pay for them)

Loretto v. Teleprompter Manhattan CATV Corp -- Dissent

7

per se takings: what to do

no ad hoc test -- special rule

8

ch of gvt action

legitimately using police power to legislate re private conduct to protect health/welfare/safety (tree disease) OR is it requiring particular owner to impose a benefit (reciprocity of advantage--public burdens shoud be borne by the public as a whole)

9

fed gvt as taker is bound by

not state statutes/constitutions (supremacy clause)

10

but fed statutes (4)

--only apply if taken by fed gvt, state gvt using fed funding): 1) compensation for moving costs 2) lost personal property from move 3) actual reaosnable expenses in searching for replacement business 4) extra for your house

11

Loretto v. Teleprompter Manhattan CATV Corp

F: state law requires LL allow cable co install 1.5 cubic foot cable box on building H: this is a taking bc it's a permanent physical invasion. Dn matter sm economic impact or public interest, bc cuts from each stick in bundle

12

F: P wanted to build houses on 2 coastal lots but then new law no permanent habitable structures H: deprivation of all economic value, so it's a taking UNLESS (1) you never had that right to start w (check title) OR (2) prohibited use also wouldn't be allowed under nuisance law

Lucas v. South Carolina Coastal Council

13

F: P coal co wants to mine under D's proeprty and make house sink, deed said this could happen but PA law says no mine under someone's house H: the PA law is unconstitutional, it's a taking against a coal mine

PA Coal v. Mahon

14

Penn Central Transportation Co V NYC

F: P wants to build tall building on top of Grand Central station but can't bc preservation statute, says it's taking of its air rights H: not a takig, regulations substantially related to promotion of general welfare, permit reasonable use --> and of course, home of the 3 factor test

15

example of a more restrictive state const

ND: --pub use/purpose DNI pub economic dvt --no take private property to be owned by other private entity

16

just compensation: SC Says no (2, inc 1 exception)

1) costs of moving to other location (even to rebuild your summer camp) 2) business good will / going concern value (exception: temporary takings)

17

just compensation: leases

SC says market value of leases includes FMV inc option to renew lease

18

what's a taking?

No bright line rule!

19

economic impact of taking on particular owner

are you still able to get reasonable value for it? what's the diminution in value? (are they taking a large amt?) (denominator matters)

20

PA Coal v. Mahon

F: P coal co wants to mine under D's proeprty and make house sink, deed said this could happen but PA law says no mine under someone's house H: the PA law is unconstitutional, it's a taking against a coal mine

21

F: state law requires LL allow cable co install 1.5 cubic foot cable box on building H: this is a taking bc it's a permanent physical invasion. Dn matter sm economic impact or public interest, bc cuts from each stick in bundle

Loretto v. Teleprompter Manhattan CATV corp

22

partial takings: SC says you get

severance damages, offset by special benefit

23

supercompensation statutes

some states: 125-150%

24

Tee Hit Ton contrast US v. Sioux Nation

Sioux Nation the lands were recognized by treaty (so yes taking)

25

F: P wants to build tall building on top of Grand Central station but can't bc preservation statute, says it's taking of its air rights H: not a takig, regulations substantially related to promotion of general welfare, permit reasonable use --> and of course, home of the 3 factor test

Penn Central Transportation Co V NYC

26

ED elements (3)

1) gvt physically takes your land 2) "for public use" 3) must provide "just compensation"

27

Loretto v. Teleprompter Manhattan CATV Corp -- Dissent

mailboxes (which could be even worse bc LL has to pay for them)

28

takings analysis

1) was there a taking? (all the factors)

2) public use (Kelo)

3) just compensation

29

F: P wants to build tall building on top of Grand Central station but can't bc preservation statute, says it's taking of its air rights H: not a takig, regulations substantially related to promotion of general welfare, permit reasonable use --> and of course, home of the 3 factor test

Penn Central Transportation co v. NYC

30

F: P coal co wants to mine under D's proeprty and make house sink, deed said this could happen but PA law says no mine under someone's house H: the PA law is unconstitutional, it's a taking against a coal mine

PA Coal v. Mahon

31

permanent physical invasion: exceptions (2)

1) rent control 2) antidiscrim (have to still let the person enter your area)

32

F: Timber company takes trees, would be a compensable taking if the land belonged to the Indians H: it's not their land -- gvt has never recognized their legal title (cites M'Intosh + Indians' different concept of property rights) (unfair)

Tee-Hit-Ton Indians v. US

33

just compensation

1) usu FMV (amt would sell for on open market) --dn inc any increase in value caused by taking

34

per se takings: types

1) permanent physical invasion 2) completely deprive of economically viable use

35

ED: public use test

"public benefits and characteristics of intended use substantially predominate over private nature of that use"

36

Lucas v. South Carolina Coastal Council

F: P wanted to build houses on 2 coastal lots but then new law no permanent habitable structures H: deprivation of all economic value, so it's a taking UNLESS (1) you never had that right to start w (check title) OR (2) prohibited use also wouldn't be allowed under nuisance law

37

per se takings, aka

categorical takings

38

special benefit

eg having road run past your business (vs general enefit where everyone in enighborhood gets like advantage)

39

severance damages

not just the actual value of the land you took but also corresponding decrase in other property's value (yes you get this per SC)

40

eminent domain: US Const basis

5th am "nor shall private property be taken for public use w/o just compensation" -- applies to states bc 14th am

41

Penn Central Test -- 3 factors

1) ch of gvt action 2) protection of reasonable, investment backed expectations 3) economic impact on particular owner

42

protection of reasonable, investment backed expectations (3 sub-factors)

more likely a taking if reliance on existing law and substantial (monetary) investment are you CURRENTLY using it for the thing or you just wanted to be able to in the future?

43

Penn Central Transportation Co v. NYC --> dissent

dissent: historical preservation statute makes a few owners bear disproportionate cost-- 400 buildings but this is out of a million and there is affirmative cost to the owners to preserve

44

eminent domain: source of law

1) US Const 2) state consts and statutes --many more restrictve than US constitution

45

F: shopping center thinks ppl free-speech-petitioning on its property is a taking (can't exclude) H: not a taking, no econoic impact and no unreasonably impair use (time/pace restrictions)

PruneYard Shopping Center v. Robbins

46

PruneYard Shopping Center v. Robbins

F: shopping center thinks ppl free-speech-petitioning on its property is a taking (can't exclude) H: not a taking, no econoic impact and no unreasonably impair use (time/pace restrictions)

47

dissent: historical preservation statute makes a few owners bear disproportionate cost-- 400 buildings but this is out of a million and there is affirmative cost to the owners to preserve

Penn Central Transportation Co v. NYC --> dissent

48

Cobell (NR)

F: land held in trust, gvt allows oil drilling and gives tiny fractional shares H: it's a taking, legislative settlement for billions but not enough

49

F: state law requires LL allow cable co install 1.5 cubic foot cable box on building H: this is a taking bc it's a permanent physical invasion. Dn matter sm economic impact or public interest, bc cuts from each stick in bundle

Loretto v. Teleprompter Manhattan CATV Corp

50

Kelo: O'Connor dissent (2)

O'Connor dissent: now no distinction btwn private and public taking. Should instead require that prior use was affirmatively harmful

51

Tee-Hit-Ton Indians v. US

F: Timber company takes trees, would be a compensable taking if the land belonged to the Indians H: it's not their land -- gvt has never recognized their legal title (cites M'Intosh + Indians' different concept of property rights) (unfair)

52

Kelo v. City of New London

F: city makes dvt plan to create jobs and up taxes through big dvt project H: economic improvement of city is a legit public use and ok for gvt to take and give to private actors for htis purpose, bc "rationally related to a conceivable public purpose" -- NO requirement for reasonable certainty that pub bens will actualy happen

53

regulatory taking

regulation makes your property less valuable and stops you from doing something you wanted to do

54

Tee-Hit-Ton: situation now (3 parts)

settled PAST by ANCSA (Alsaka Native Claims Settlement Act) but going FORWARD, this is still law settled this way to avoid paying interest