Takings Law Flashcards
(14 cards)
takings
When gov. is doing something legitimate, it has to pay an individually burdened property owner
*Competing Interests
Harm-prevention v. benefit conferral
*Outright takings = condemnation = eminent domain
Government can take property involuntarily, but they have to pay “just compensation” (fair market value)
Used for things like roads, emergency services, and schools (must be for public use)
Regulatory or implicit takings = inverse condemnation
Gov. is not outright taking your property—it’s instead regulating the use of your property
*Denominator:
the total value of the property interest being considered
Property owner framing: define narrowly & focus on part they can’t use, saying they are deprived 100% of the value of the restricted part
Government framing: define the parcel broadly (or as a whole); will say that they can only not use small part of the whole property
Note: the framing of the property interest will determine how restrictive the regulation is
Takings Tests
Mahon test: regulations that go “too far” require compensation (can be interpreted two different ways)
Armstrong test: a regulation goes “too far” when it is unfair and unjust to an individual claimant absent compensation
Penn Central
*Penn Central v. City of NY factors test:
- The character of the governmental action
- The extent to which the regulation has interfered with distinct investment-backed expectations
- Economic impact of the regulation on the claimant
Character of the government action
Arguments Advantageous for Government Defendants
Promotes general welfare via average reciprocity of advantage (zoning, setbacks, height limits, historic districts)
Prevents harm to others or their property (alcohol, margarine, brickmaking, quarries, subsidence, etc.)
Resolves unavoidable conflicts (e.g., cedar trees vs. apple trees)
Important regulatory goal, at lease in environmental context (Murr)
Character of the government action
Arguments Advantageous for Property Owner Plaintiffs
permanent (and some temporary) physical invasions by strangers
Deprivation of “core property rights (rights to exclude, pass on property at death, earn interest on principal, etc.)
Promotes general welfare by singling out individuals who reap no reciprocal advantages
Unimportant regulatory goal? (Murr)
- Argument what the gov is doing is legitimate but not important
Reasonable Investment-Backed Expectations
Arguments Advantageous for Government defendants
Hopes and plans are not sufficient for rights to “vest” (zoning, historic district)
*Regulation pre-dated investment
It was built into the purchase price
Regulation is generally consistent with “background customs and the whole of our legal tradition”
Draw on prior statutes and regulations, not just common law
Reasonable Investment-Backed Expectations
Arguments Advantageous for Property Owner Plaintiffs
“Vested” rights based on what I already have done with the property (“non-conforming uses”, construction based on government permit, etc.)
*Regulation post-dated investment
Economic Impact
Arguments Advantageous for Government Defendants
When economic uses remain this is advantageous to the government (construing parcel broadly)
Economic Impact
Advantageous for Property Owner Plaintiffs
No or limited economic uses remain (construing parcel-as-a-whole narrowly)
Murr rule
when measuring economic impact the baseline should be the parcel subject to REASONABLE regulation NOT with no regulation (and this makes the gap look a lot smaller—the starting point matters)
