Protection of Public Resources and the Takings Interface of Sovereign and Private Property Rights

Question 1

What is a Taking?

Answer 1

• 5th amendment right applied to the states through the 14th amendment
• The government can’t take private property without compensation

Question 2

What are the types of Takings?

Answer 2

• Physical
• Regulatory
• Hybrid (exactions)

Question 3

What is a Physical Taking?

Answer 3

• Generally requires compensation with exceptions:
• -Necessity
• -Nuisance
• -Underlying public servitude
• No compensation for the exceptions
• Public Use/Benefit Test

Question 4

What is Eminent Domain?

Answer 4

-When the Government condemns property then sues for title of the land with compensation

Question 5

What is Inverse Condemnation?

Answer 5

-When a landowner sues the government for goin “too far”…

Question 6

What is a Regulatory Taking?

Answer 6

• Interface of public need and private property rights
• Regulation protects public need and constrains private property rights
• Involves: zoning, taking, nuisance, and public trust
• Categorical Test (Lucas)
• Ad Hoc Test (Penn Central)

Question 7

Kelo

Answer 7

• All land taken under the 5th Amendment must be taken for a “public use”
• Public Use = Public benefit, including an economic benefit
• The court gives deference to the legislature/ governing body

Question 8

Lucas

Answer 8

• Carve out of the Pen Central factors
• Regulation prevents economic use
• Two part Categorical test:
• -Threshold: is there deprivation of all economically viable use?
• -If so, are there background principles of the states nuisance or property law?
• Procedurally, some evidence wasn’t allowed so the property had zero value

Question 9

Pen Central

Answer 9

• Historic Train Station in NY
• Ad Hoc test factors:
• -economic impact of the regulation
• -extent of “reasonable” “investment backed” expectations (Palazzolo, Just)
• -character of Government action

Question 10

Just

Answer 10

• Plaintiff owns designated marsh land, fills it with sand, charged a fine
• Court held not a taking because regulation protected the natural state and property was purchased as a marsh with no expectation to alter the property (natural use rule)

Question 11

Palazzolo

Answer 11

-Post enactment purchasers can bring a claim only if the previous owner could have brought a regulatory takings claim

Question 12

Esplanade

Answer 12

-Public Trust in Regulatory Takings

Question 13

What are the ways of avoiding the application of Zoning Regulations?

Answer 13

• Re-zone
• Prior Non-Conforming Use
• Variance (test: undue hardship to landowner, deleterious impact to community)
• Conditional Use Permit

Question 14

What are Hybrid/Exactions Takings?

Answer 14

• Mention being basically extortion (EC)
• Government trying to make a deal with the landowner
• Koontz Test:
• -Logical/essential Nexus (Nollan)
• -Rough Proportionality (Dolan)
• Koontz- N/D applies to exactions of money
• If exaction doesn’t pass, government can still take land without paying (Lucas/PC)
• Tahoe Sierra- apply Penn Central factors to temporary takings/moratoriums