W4 - Emmininet Domain and regulatory takings Flashcards
What is emmininet domain?
An intentional action initiated by the government to “take” property for public use and pay just compensation to the property owner.
What is a regulatory taking?
Government intends to regulate property, and the property owner initiates the lawsuit, claiming that the gov’ts action amounts to a “taking.”
Regulations could be zoning ordinances or other statutes that limit the ability to use the property or allow the gov’t to use your property.
Does the US Constitution provide the government with the power to seize land?
No. It only requires the government to compensate people for takings. That power exists by virtue of the US being a sovereign state
What is the public use requirement?
Land must be seized for public purposes. When private property is taken to make a public park, then that taking is unassailable. But, when the government takes land from one private entity and gives it to another private entity, then this case case controversy
Do takings have to be done for obviously public purposes?
NO
What do property owners have to argue when they contest a taking?
That the use for the land isn’t truly in the public interest. Failing that, that the compensation is insufficient
What is the ends-justify-the-means test for public use?
: If the claimed purpose of the legislative action is within the legislative body’s authority (the ends are legitimate), then the court will not second guess the legislative body’s determination on how to accomplish its purpose (the means won’t be questioned).
Can land be taken for economic development?
Under federal law (via Keto case) yes. however, several states including Michigan have enacted statutes that ban seizing land for the dubious public purpose of economic development
What constitutes just compensation fro seized land?
The measure of “just compensation” is “fair market value” of the property, measured based upon the property’s highest and best use
Can sentimental value be added to the amount of the compensation?
No
What are the 5 factors for determining fair market value of a seized property?
Recent past sales prices for the property (if any);
Recent sale prices of comparables;
The capital value of the property if used as a rental;
The rebuilding cost of the building in question (discounted for the age of the building)
The value the property would bring if used in the new, “intended” way. (How much would a developer pay for this land?)
What is a regulatory taking?
When Government intends to regulate property, and the property owner initiates the lawsuit, claiming that the gov’ts action amounts to a “taking.”
How do courts strike a bank between property owner rights and the zoning of lan when they seek to regulate it?
They allow for the operation of the land as normal, and prohibit different development (Penn Station Case)
What is a per se taking?
where the regulation requires some physical appropriation of a person’s property (requiring installation of cable boxes, etc.)
What is the standard for per se takings?
Just compensation is required, regardless of any other factors (does not necessarily have to be money. can be a service in kind. Ex. internet company sets up a junction box on your land in exchange for free internet)
