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Flashcards in Takings Deck (24)
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Where is the takings principle located in the constitution?

the 5th Amendment


What is the definition of takings?

Prohibits the government from taking private property for public use without just compensation

1. Also protects owners from fundamentally unjust alterations including unjust limits on the ability of owners to use property as they wish
2 Defines certain core property rights as immune from alteration by the state without compensation
3. The state can still infringe upon these rights as long as it does so for legitimate public purposes and as long as it compensates


What are the definitions for per-se takings?
What are the 3 types of per-se takings?

a. Per Se→it is a taking (be careful tons of exceptions)
1. Regulation causes permanent physical invasion of owner’s land (Loretto-cable company come in w/out permission)
2. Regulation denies owner any economically viable use of the land (Lucas-law that deprives an owner of ALL economic uses is takings unless use was already prohibited by nuisance law or other background principles)
3. Development exactions causation and proportionality nexus related to some particular development problem (Nolan/Dolan)


What are 3 factors to consider in takings? This is the test the Supreme Court prefers

1. The economic impact of the regulation (diminution in value)
2. The extent to which it interferes with reasonable investment backed expectations and
3. The character of the government action
**This test comes from Penn. Central


How do questions of fairness and justice relate to takings?

Does the regulation wrongfully force some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole


regulatory laws that limit an owner’s use of land may be justified if these owners are benefitted by the similar restriction imposed on others



Does the exercise of police power of a state qualify as a taking?

NO-the state has the power to regulate public health, safety, morals and the general welfare
1. May prevent nuisance/noxious use, can take even if deprives owner of all economically viable use
2. May promote the general welfare, even if substantially reduces the value of owner's land bc owner is not entitled to most profitable use


What happened in Village of Euclid?

Zoning laws prohibiting use are ok as long as they are not arbitrary or unreasonable and are sufficiently related to public health, safety, morals or general welfare


What happened in Penn. Central Trans. Co?

Takings does not guarantee that owners will be able to use property for MOST profitable purpose; can still be used as investors wanted originally; zoning must be rationally related to the interest


What happened in Lucas?

Law that deprives an owner of all economic uses is takings unless use was already prohibited by nuisance law or other background principles


What happened in Palazzolo?

If the regulation was in place before then you can’t argue takings (even though 94% reduction in value)→if enacted after, then state have to argue that it was already prohibited by nuisance law or other background principles


What happened in Tahoe-Sierra?

Temporary moratorium not a taking, if area is known for conservation; use Penn State


What happened in Nolan?

You can’t coerce an owner to grant a public easement; there must be a sufficient nexus between permit conditions and harms sought to be prevented


What happened in Dolan?

Adds rough proportionality requirement→not only must the requirement be related to a proper public purpose, it also must be roughly proportional to the impact of the proposed use.
1. Must be met by an individualized determination that the easement requirement was related both in nature and extent to the impact of the proposed expansion in use.


What happened in Loretto?

Cable company was allowed to come in and out of the property to install cable without the property owner's permission-not ok, because installing the cable boxes and the like created a permanent physical invasion on the owner's property
(remember that intrusions on property that aren't permanent, like allowing someone to come and pass out flyers, probably aren't takings)


What happened in Penn. Coal Company?

Statute said coal co. could not mine because public has interest in support. Not a legit exercise of police power.
-Limitations on the use of land through the police power have limits and will be considered a taking under the eminent domain power when the diminution in value of the property reaches a certain magnitude, which depends upon the particular facts.


What is a partial benefit extraction claim?

In the context of urban planning and zoning, partial regulatory taking claims may include all taking claims that are not "categorical" or "per se" regulatory taking claims.
1. BUT NOT=permanent physical invasions
2. BUT NOT=going so far as to deny all economically viable use


What are the 3 core concepts that shape categorical takings?

fairness, causation, and proportionality


What is the policy behind partial takings and state police power?

1. Police power is great when regulating noxious use, and its fair to place the burden on the individual, bc that person is the source of the evil
2. When enforcing general welfare claims, the question is always "is it fair for one individual to bear the burden, or should everyone bear the burden?"


Direct taking of property by imposition of development exactions, fees, or condition absent of cause and effect fairness nexus, taking?

Yes (look at Nolan)


Shifting of burdens to benefit favored persons or groups, taking?

Absent cause and effect fairness nexus, taking?YES (see Penn. Central-they weren't the only person burdened by the historic register designation)


A buden directly benefiting neighboring owners but no reciprocal benefit to burdened owner?Taking?

Absent fundamental fairness in allocation of burdens is a taking


A substantial diminution in value for social benefit and absence of reciprocal benefit, taking?

Absent fundamental fairness in allocation of burdens is a taking


Judicially formulated fairness doctrines protecting individual property rights in the regulatory process?Takings?

Yes, because of estoppel claims, maybe the new use is nonconforming, or it was a vested right (SECRETLY WE HAVE NO IDEA WHAT THIS MEANS SO LETS HOPE TO GOD WE DON'T GET A QUESTION ABOUT THIS)