Takings (Property) Flashcards
What takings do we analyze?
eminent domain and a regulatory taking
What is diminution of value?
Value before regulation minus value after regulation means reduction in value. If you divide reduction in value and value before regulation.
What is the affected portion approach vs entire parcel approach?
We’re using the entire parcel approach.
Affected portion: A method of determining just compensation in a takings case by valuing only the portion of the property actually taken by the government, without considering the impact on the remaining property.
Entire parcel approach: A method of determining just compensation in a takings case by valuing the entire property as a whole and compensating the owner for both the value of the portion taken and any resulting diminution in value to the remaining property.
What did we learn from Berman v. Parker?
Seizing title to real estate for the public purpose of preventing or eliminating slums is within Congress’s power of eminent domain if reasonably necessary to eliminate or prevent slums provided the owners receive just compensation.
What did we learn from Hawaii Housing Authority v. Midkiff?
A state may use the eminent-domain process to take property that is heavily concentrated in the hands of a few private landowners and redistribute it among the general population of private individual
What did we learn from Kelo v. City of New London?
A state’s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a “public use” under the Fifth Amendment if it is rationally related to a conceivable public purpose.
What did we learn from Commonwealth v. Alger?
Regulations that constrain private-property rights are a valid, enforceable exercise of legislative police power if reasonably necessary to protect the public welfare
What did we learn from Mugler v. Kansas?
A state may exercise its police power to compel the discontinuation of a property’s use for its intended purpose, without compensating the owner for the property’s resulting loss in value
What did we learn from Penn Coal v. Mahon?
While the use of property may be regulated, overregulation will be considered a taking.
What did we learn from Penn Central Trans v. City of NY? What are the elements to consider whether a state regulation is a taking?
courts should consider 1) the economic impact of the regulation on the owner, 2) the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and 3) the character of the government action involved in the regulation.
What is a per se taking?
Regulations that cause total diminutions in value are per se takings.
- Nuisance exception: The regulation of a nuisance is never a taking.
What is an exaction? How are they analyzed?
Exaction: The government is attempting to get, or exact, something from you in return for the permit approval.
An exaction only raises a constitutional problem if the concession demanded by the gov would have been a taking if the gov had tried to impose it on the property owner.
Two-part test from Nollan and Dolan: 1) there must be a nexus between the problem asserted as justification and the demanded exaction. 2) the government must make “some sort of individualized determination” that establishes a rough proportionality between the exaction and “the impact of the proposed development.”
What did we learn from Lucas v. South Carolina Coastal Council?
A state regulation that completely deprives private property of all its economic value constitutes a taking under the Fifth and Fourteenth Amendments that requires the payment of just compensation to the property owner, unless the economic activity prevented by the regulation is not part of the owner’s initial title or property rights when acquiring the property.
What did we learn from Cedar Point Nursery v. Hassid?
A per se physical taking occurs if the government gives someone a right to physically occupy someone else’s private property either temporarily or permanently.
