Per se taking test

Question 1

Pre-Lucas

Answer 1

it was implied that no regulation would constitute a taking (there was always at least some value left)

Question 2

Lucas rule

Answer 2

reg is per se taking (no balance of public interest necessary) when:

(1) Physical intrusion occurs
(2) Reg denies all economically beneficial/productive use of prop
(3) Exceptions:
(a) Nuisances (only CL nuisances so as to restrict legis from counting anything as nuisance)
(b) Background principles of st prop law

Question 3

Lucas:

Answer 3

π bought land on beach intending to build house; law passed for coastal management purposes restricted building any permanent structure; (allegedly) made prop worthless–>comp required (a taking) since law eliminated all economically beneficial use
(1) Counter: other uses (camping, kayaking)FT: unrealistic that value will go to 0; new test: 85% diminution = taking

Question 4

Lake Tahoe case:

Answer 4

Lucas per se rule doesn’t apply to temporary moratoriums

(1) F: 6-year moratorium placed on all development around Tahoe (for environmental purpose)not a taking
(2) Dissent: Lucas should extend to temporary regs limiting all use; Can deem anything as temporary and keep extending it; While Lucas theoretically permanent, statute was realistically temporary but still a taking
(3) FT: rule that says if moratorium extends passed a certain timeframe–>Lucas applies