11) ED Flashcards
(54 cards)
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
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
Takings: 2 kinds
ED RT
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
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
mailboxes (which could be even worse bc LL has to pay for them)
Loretto v. Teleprompter Manhattan CATV Corp – Dissent
per se takings: what to do
no ad hoc test – special rule
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)
fed gvt as taker is bound by
not state statutes/constitutions (supremacy clause)
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
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
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
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
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
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
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)
just compensation: leases
SC says market value of leases includes FMV inc option to renew lease
what’s a taking?
No bright line rule!
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)
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
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
partial takings: SC says you get
severance damages, offset by special benefit
supercompensation statutes
some states: 125-150%
Tee Hit Ton contrast US v. Sioux Nation
Sioux Nation the lands were recognized by treaty (so yes taking)
