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26 Cards in this Set

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The Power of eminent domain
The Power of eminent domain- all governments have the power to take private property for public purposes, but that power is limited by the constitution, state constitutions, statutes ect.
The Taking Clause-
“ The U.S. Constituion 5th Amendment provides that “private property (shall not) be taken for public use without just compensation.” The purpose is that
a. Prevents forcible redistribution of property
b. Taking permitted only for public benefit: The public use requirement of the taking clause was designed to prevent any taking, whether or not compensated, that forces a transfer of property from one private person to another with no public benefit in the forced transfer
Principal Issues under the Takings Clause:
1. Public Use- Governments sometimes take private property and convey it to another private person in order to reacp some alleged collateral public benefit

2. Regulatory takings- at what point does a governmental regulation of property become so burdensome that it is a de facto


3. Compensation- it is well settled that the private property owner is entitled to the fair market value of the taken proeorpty – the price that a willing seller would agree upon.
Public Use in General-
“Public Use”- a literal reading of the consitions text would limite governemtnalt power to take private property to instances where the property will actually be used by the public. On this reading seizures designed to produce some collateral public benefit are not permissible. (a seizure of private property to convey it to a private corporation in order to construct a factory that will provide economic benefits to the community). In fact, the public use limitation has virtually been eliminated by the Supreme Court’s extreme deference to legislative judgments about what constitutes public use.
So long as a taking is rationally related to any conceivable public purpose the public use requirement is satisfied. In essence “public use” is whatever the legislature rationally thinks is conducive to “the public welfare.”

-compensation for taking – there is an argument that compensation for takings can be inefficient in that it encourages landowners to ovreinvest in capital on their land without regar to its value for efficient govt projects.
Is the Public use—an ends or means?
Hawaii v. Midkaiff-
- They used a test that focuses on the ends sought to be accomplished by the forced transfer; so long as the objective is in the public intrest the forced transfer is for public use, a view that collapse the scope of public use and the police power. Indeed, the M court observed that the “public use requirement is… coterminous with the scope of a sovereign’s police powers” Is this is so, then why must there be compensation at all, for exercise of the police power does not acall for compensation? Critics sometimes suggest that public use should be confined to provision of what economists call “public goods” an item from which nobody can ben excluded from consuming and the consumption of which by one peron sdoes not affect other people’s ability to consume the good.

Other critics argue that public use should focus on the means—forced transfers should occur only whne transaction costs are sufficiently hight to prevent voluntary transfers. Whether the focus is on ends or means, courts have been willing to conceive the public use test in remarkably latitudinarian terms.
• Poletown v Detroit- GM wanted a site on which to construct a new assembly and manufacturing plant, but no suitable site was available in Detroit, near its existing operations. Amid indications that GM might take its manufacturing operations to some other state GM approached Detroit city officials about the site problem, with the result that the state enacted legislation condemning an entire viable residential neighborhood for transfer to GM as the site for its plant.
• The court held that the taking was for public use – “alleviating unemployment and revitalizing the economic base of the community” – despite the considerable benefits bestowed on GM.
Regulatory Taking; How much regulation of property is too much
The Per se rules
1. Permanent dispossession: When a government regulation permanently dispossesses an owner of her property, the regulation is a taking.
a. Real Property: as applied to real property, a taking has occurred if a regulation produces a permanent physical occupation of all or a party of the property. Temporary occupations are not a per se taking.
i. Example: NY required landlords to permit cable television operators to install cable facilities on their property. Loretto, a landlord, claimed that the forced cable installation was a taking of her property, even though the physical occupation consisted entirely of a ½ in. diameter coaxial cable along the roof and descending to the apartments within, together with associated small directional taps and junction boxes for the cable, most or all of which were on the roof of the building.
ii. The U.S supreme court agree, ruling that a “permanent physical occupation authorized by government is a taking without regard to the public interests that is may serve.” The court reasoned that the permanent loss of the ability to exclude other was especially destructive of property exceptions—“the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation.”

b. Nuisance abatement: if a govt regulates property to abate activites that are common law nuisances there is no taking, eventhough the regulation might bar all economically viable uses of the property. The theory is that ownership of the property never included the right to inflict nuisances, so nothing has been taken by forbidding what was never lawful.
i. Origins: This categorical rule originated in cases that sought to distinguish between regulations designed to prevent harmful (or noxious) uses and those designed to reap a public benefit. Only the latter were said to be takings.
ii. Hadacheck v. Sebsatian- the court thought that the cedar trees were harmful to apple trees and the brickyard was harmful to residential neighbors, but it is equally true to say that the cedar trees were destroyed to reap the public benefit of a continued apple inducty, or that the brickyard was quashed to reap the public benefit of residential tranquility. The problem with this approach is that is it unstable, and ultimately indeterminate, distinction between harm and benefit
Wanye County
- What are the Constitutional Limits?
o The Faa- they wanted to purchase this land, the string was we will give you this money but you have to make this an economically productive use
o The property you buy has to be put on in the economical use.
o Problem was that that land-owners did now want to sell out
o Steps for the taking in order to condemn this property. Under the statute you had to demonstrate that there was a public purpose for the use or benefit of the public. The court had no problem construing that this park met this statute. They were not concerned with some public interpretation of public use.
o What is the constitutional issue that they are examining?
o Issue: Does general economic benefit of the public constitute for the purposes of a general taking?Is is public use under the Michigan constitution when the pupose can only be descrbein in a tax benefit, economic benefit when the property is not being held by the govt but turned over to a private party (this overturns poletown)
o What is justice Youngs interpretation of public use? It is the ratafiers- the public intent when it was created as to what the meaning is. In terms of its meaning what did justice young have to say? He calls Public Use as a term of art. That means that it should remove the ambiguity. We need the understanding of the guy who was sophisticated in the law when the constitution was ratified.
Wanye County
o Young v. Weaver – they both have different views but get back to the same conclusion
 Weaver- says we don’t have to look at as technical terms. You can’t just look it up. Maybe the courts can’t define it but maybe the people know what it means. We don’t need to look at the elittiest we need to look at the past and the history of what this has ment in the past. What did the framers originally intend vrs a more modern liberal approach were it is a legal living document. Looking at changing times and circumstances.
 Young- look at the sophitocates
 Why did they spend time arguing about it. What is justice weaver afraid of the sophisticated mind.
o We know that there was no bar but there are three instances where the party was limited..
 Public necessity- railroad- use depends on the land, Public necessity of the extreme sort that are otherwise impracticable..
 Will permit as long as that private property has to be accountable to the public for what it does.
 Slum removal- it is not the public use. We don’t care where it goes. It is the act of the condemnation itself that they are concerned with. The property has to be selected on the facts of of condemnation must satisfy the public use. It prohibits use of private parties unless you meet one of these three parties. _
O everyone agree that Poletown gave too much deference to the govt. This type of public use is not good public use in term of the govt.

- It is the legislative use- the definition of public welfare has been expanded. If it is in the public welfare to get rid of houses and put up big condos and increase tourism. That is the public welfare? You can’t equate public use with public welfare and you can’t do that.
- It the legislatition working public welfare.
- Poletown who came to the city? Gm
Three exceptions to the general rule of eminent domain
o Public necessity of the extreme sort otherwise impracticable
 Has been limited to those enterprises generating public benefits whose existence dependes on the use of the land that can be assembled only by the coordination central govt alone is capable of achieving
 Highways, railroads, canals, and other instrumentalities of commerce
 The likelihood that property owners will engage in this tactic makes the acquisition of property for “instrumentalities of commerce” a logistical and practical nightmare.
 Collective action is needed to acquire land for vital instrumentalities of commerce is consistent with the constitutional “public use” requirement
o The transfer of condemned property to a private entity is consistent with the constitutions “public use” requirement
o “Land cannot be taken, under the exercise of the power of eminent domain, unless, after it is taken, it will be devoted to the use of the public, independent of the will of the corporation taking it”
(1) where "public necessity of the extreme sort" requires collective action; (2) where the property remains subject to public oversight after transfer to a private entity; and (3) where the property is selected because of "facts of independent public significance," rather than the interests of the private entity to which the property is eventually transferred
KELO V.City of New London
- the community made a plan for this area that was not necessarily a blight but there was depression in the area and there was a need to attract new jobs and investments.
- You don’t have a developer that is pushing the council
- Zoning- unless you are able to amoritize, you have to wait for the developers to offer enough money to influence these people to move.
- If you want to be proactive you have to rezone and not take. Property going from going to owner A to B where other people would buy and live where owner A used to live.
- It isn’t being pushed by one developer.
- The court says that there are extreams
o We can’t have a govt taking property taking proprety form A and giving it to b for a better use or because b wants it- eventho you are paying just compensation
o Hawaii- the pupose was eliminating a social evil. Public use boils down to public purpose we are not limited to building highways and court houses.
o If the use by the public taking is for a public use.
- there is a notion that public purpose is a proper way of considering public use. Unlike Michigan if you can demonstrate that there is an appropriate purpose for public and not private. As the courts said in the burman case.
- The idea of public welfare is broad. Once we allow public use to public purpose then we invoke police power
- 2665 those who goven the city but their determination that it was distressed is entitled to our defference. When do you think that the court would stick its nose in? Does the benefit to the public outweigh
KELO V.City of New London
- Articulate the public benefit
o Articulate a rational relationship test ( majority)
o As long as this plan is rationally related to a goal of the township and as long as it is not arbitrary.
- Minority- What O’Conner want to do is imposer a bright line rule. All takings that are base dstrickly on economic benefit to a community would be prohibited or at lease presumptively invalid. Unregulated private use is supect and it allows.
- If there was no attempt to buy even the majority would question whether or not this was public use.
- Need to examine the attempt for the bright line rule and why it wouldn’t work for the federal court. We respect that the need differe from state to stae and we need that the states to work that out. We are ok with the rational relationship test. The public pupose must be articlate that is honest and provable (but it doen’st take much to prove)
KElo
- reling on Hawaii- the court found that economic development was valid under state and federal constitutions
- Court look at
o Reasonable necessity
o Reasonable foreseeable necessity
Eminate Domaine Review
Review-
There is taking and there is taking. The Govt take title to the property and shove you out that is taking. What we examine is that question of what if the govt doesn’t take your property and shove you off and record title in their own name. What if they let you keep it but they have done some act through some regulation that has an impact on a negative sense on the property. That has the right to take you property and it can zone and reduce the value in your property and that is not necessiarily a taking.
What might happen if zoning made it impossible to develop property? This happens when you grant variances. IF the court finds that by not granting the variance the govt has made your property valueless. If the variance is not granted at all – is that a taking? If you don’t allow me to develop my property should I be allowed compensation.
Last week, pg 1117 There is a categorical rule. If the govt permantly takes in a physical way a portion of your property it is a taking. (Lorretto). A very small yet permanent taking is compensable however not allowing a variance is not a taking. In Euclid the lot is decreased and there is no taking. In Loretto almost no value is diminished and you have to pay them a buck or two.
Are there any situation where no matter how much they decrease the property it is not a taking.
Nuisance abatement:
If a government regulates property to abate activities that are common law nuisances there is no taking, even thought the regulations might bar all economically viable uses of the property. The theory is that ownerhip of the property never included the right to inflict nuisances, so nothing has been taken by forbidding what was never lawful.

Origins: This categorical rule originated in cases that sought to distinguish between regulations designed to prevent harmul (or noxious) uses and those designed to reap a public benefit. Only the later ones were said to be takings
Nuisance abatement:

Hadacheck v. Sebastain-
In 1890’s Hadacheck acquired rural land outside of Los Angeles that was ideal for brick-making because of the extent and fine quality of the clay deposits. Hadacheck invested in heavily in machinery and equipment and developed a thriving brick business. Eventually the city grew out to his brichyard and LA enacted an ordinance forbidding his continued operations, on the grouds that the continued activity was annoying and inconvenient to his newly arrived neighbors. Bc the ordinance allowed Hadacheck to remove his clay (but not make bricks) there was no taking, said the U.S. Supreme Court

The ct never expressly declared that Hadacheck’s brickyard was a nuisance,k but was persuaded that LA was seeking to regulate a “noxious” use, even if it might be lawful.

The conept of permissible regulation to address noxious-but-lawful uses was exteneded in Miller… in which the court upheld a Virginia law that mandated uncompensated forcible destruction of red cedar threes harboring cedar rust fungus, a killer of apple trees.
Nuisance abatement:

Hadacheck v. Sebastain-
In 1890’s Hadacheck acquired rural land outside of Los Angeles that was ideal for brick-making because of the extent and fine quality of the clay deposits. Hadacheck invested in heavily in machinery and equipment and developed a thriving brick business. Eventually the city grew out to his brichyard and LA enacted an ordinance forbidding his continued operations, on the grouds that the continued activity was annoying and inconvenient to his newly arrived neighbors. Bc the ordinance allowed Hadacheck to remove his clay (but not make bricks) there was no taking, said the U.S. Supreme Court

The ct never expressly declared that Hadacheck’s brickyard was a nuisance,k but was persuaded that LA was seeking to regulate a “noxious” use, even if it might be lawful.

The conept of permissible regulation to address noxious-but-lawful uses was exteneded in Miller… in which the court upheld a Virginia law that mandated uncompensated forcible destruction of red cedar threes harboring cedar rust fungus, a killer of apple trees.
Halacheck vs. Spur
o 1139 #3- in Spur case the feedlot in question was held to be a nuisance, but the court concluded that, as a matter of fairness, the costs of moving or shutting down the feedlot operation should be borne by others. This case had zoning. The govt is seeking the thing to stop. In Spur the private party. Police power is the major difference. IN one you are bending to the will at the large in the other we give defference to the people at large.
o Billboard if it had not been zoned out would a billboard be a private nuisance? Putting up a sign may decrease property value but is it going to interfere with the use and enjoyment of your property? Prob not really. Can the state regulate? Yes, aesthetics we have learned but aesthetics is not part of common law. We have zoning because it is hard to enforce private nuisance. Everyone has the right to use their own property, but there is not right to the sun.
o When the state exercises its right in the whole concept of nuisance which has been blurred because of Euclid. We didn’t say that if you had been those zoning you were creating a nuisance that could be abated. We did say that the courts said it had the flavor of nuisance so it could be zoned. If it was a private nuiscane you didn’t have to zone you could just sue
o When the state engages in the conduct of regulation to prevent conduct that does have negative impact on private property then it can zone and it can zone in a way that can decrease the property value and there is no need to compensate.
o Even if this was right and we are comfortable with the idea for the state to legislate out. The question is that it was not fair. Shouldn’t we do something to compensate?
o Is it a nuisance at all ? Is there something fair we can do about it? The courts mix up those all the time. If it is a nuisance we then decide if it is an injuction and handle it from the remedial side.
o Miller v. Schoene- this is causing a harm to other property. Turn it around that the apple trees are harming the cedar trees.
o So long as it is rational and so long as it is not arbitrary it can be an argument.
o Avian flu- the govt does not have to compensate.
o If you are going to defend a taking you better avoid a nuisance finding. They were preserving a benefit. We want to preserve a healthy orange industry. Prevention of harm in the future.
Just Comopensation
the property owner is entitled to the fair market value of the prooperty taken. WAhen only a portion is taken, the owner is entitled to severance damages-- the difference between the value of the entire parcel before the taking and the value of the parcel the owner is left with after the taking.
The Hadacheck line of cases stands for another categorical rule
A second categorical rule: Recall the categorical (or per se) rule of loretto: if the government action is seen to work a permanent physical occupation, then a taking always follows (nuisance controls aside). ( cable on the side of the house). The Hadacheck line of cases stands for another categorical rule, one that cuts in the opposite direction and holds that nuisance control regulations are never takings. But “nuisance” has a special meaning here, Lucas case
A. The Per se rules: One of the courts categorical rules identifies a form of regulation that, per se, does not constitute a taking. The other two categorical rules identifity when a taking has occurred.
1. Permanent dispossession: When the govt regulation permanently dispossesses an owner of her property, the regulation is a taking.
a. Real Property- as applied to real property, a taking has occurred if a regulation produces a permanent physical occupation of all or part of the property. Temporary occupations are no a per se taking. (Loretto v. Teleprompert)
b. Personal Property-a taking has occurred when govts, by regulation, confiscate personal property.
c. Physical Invasion- of property by the govt that is not permanent, and which does not permanently deprive the landowner of the right to exclude others, it is not a per se taking, but can be assessed under the balancing process that applies to claims of regulatory takings that cannot be disposed of under the categorical rules.
2. Nuisance abatement-
a. Origins- Hadacheck b. Sebastian
b. Contemporary statement:
. Balancing public benefits and private costs
If the per se rules do not resolve the issue of whether a regulation is a taking, courts weight the public benefits achieved by the regulation against the private costs imposed. A regulation is not a taking if it substantially advances a legitimate state objective. To determine whether this test has been met at least the following conditions myst exist:
1- Public benefits form the regulation must outweight the priate costs of the regulation
2- The regulation must not be arbitrary
3- The property owner must be permitted to earn a reasonable return on investment in the property.
Pennsylvania coal co v. mahon-
o He waived all his rights to sinkholes and including if the house falls into the ground.
o It forbids the mining so that he couldn’t have a house or any structure within 150 feet.
o If statute is applied? What would happen to Penn Coal? They can’t mine in a way that is going to threaten the surface property . That is going to have a negative impact and if they do mine they are going to have to pay for it. It wipes out their deal. Wouldn’t they have charged the property owner’s more if they had to mine in a way that didn’t cause sinkholes. Yes. Penn Views the land as three different estates, land, soil, and the sink holes.
o They took the right away with the Kohler act. Is there a compensable taking? Is the application of the statute is it compensable as a taking? Is this a nuisance the Kohlar act? We don’t think it exercises police power. If it were the Kohlar act would be constitutional in that it does not provide for any compensation. Are we limited to nuisance when it comes to police power as it relates to zoning as it does have some beneficial impact.
o If it is not meant to prevent a nuisance is it made to do something beneficial. Seemingly to benefit the employees. We are taking some of your rights to mine coal but there is a reciprocal advantage and that is fewer of your employees that die. That is what the court is saying. We are taking something away from you But we are giving you something back and this is an average reciprocal advantage.
o Once we say it is not a nuisance and there is no reciprocal advantage and you are on shaky ground if you want to do this you have to condsider how far you are going.
Mohon
o 1144- while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It is a question of degree and we can’t dispose of it with propositions. If you can acheve the same result as to regulating without taking. The govt is going to regulate because they don’t have to pay. This Kolar act could pass for public use. Or you could zone it. You could also zone everthing around it until you get what you want or you could amortized use.
o When you have essentially taking away the value and they are worth nothing unless you get the mine.
o Brandeis- 1147 if we are to consider the value of the coal kept in place with the restriction we should compare it with the value of property.
o Conceptual Severance- divide the property into its different values. Brandies says that wrong and you aren’t looking at the reality of it. You can’t inflate their losses by narrowing in on a part I want to see which is what conceptual severance does.
o Doe we have to take a look at everything you owned and when you owned it. The lawyer is going to come to
o Note 2 1149- a softer test the inbetween if matters have gone too far. It might comply with implicit compensation. Diminution of Value test? Efficiency and Value.
o Balancing tests- compare the public benefits of the governmental activity against the private harms it works on claimants. It claimants would lose a lot more than the public would gain, a taking should be found, otherwise, not. (Pretty good test for efficiency)
o Envestment back expectations- what were at right given your investment and how are those being impacted. It is fair when there are reasonable expectations.


Balancing test: Conceptual severance. Mahon assessed a test as to whether the diminution in valued attributable to the regulation was so much that the regulations’ effect…
Penn Central v. New York City-
Taking jurisprudence does not divide a single parcel into discrete segments (air, space, etc) and attempt to determine whether rights in a particular segment have been entirely abrogated. The Ct focuses on both the character of the action and on the nature and extent of the interference w/ rights in the parcel as a whole. Diminution of the value of the Terminal does not by itself constitute a taking. The fact that the Landmark Law has a more severe impact on some landowners than others does not itself mean that the law effects a taking. Zoning laws often impact some more than others and have been held valid. The NYC law is not invalid by its failure to provide just compensation. We must now consider whether the interference is of such a magnitude that “there must be an exercise of eminent domain and compensation to sustain it” The law does not interfere w/ the present uses and the Pls retain the ability to obtain a reasonable return on its investment. Nothing the Commn has said or done suggest that they intend to prohibit any construction. The restrictions imposed are substantially related to the promotion of the general welfare and not only permits reasonable beneficial use but affords opportunities to further enhance to properties.
Penn Central
- the landmarks law posed no threat of physical invasion, left Penn central with the ability to earn a reasonable return” on its investment- backed expectations and did not raise issues of government use.

“ Investment backed expectations” the concept of investment-backed expectations has proven to be enigmatice.
- it is related to conceptual severance: the phrase might refer to an interest in a distinct property interest, or it might mean a financial interest in a larger estate that is much diminished, thought not totally eliminated.
- Second, the phrase is suggestive of inherent limits: if either “investment” or reasonable “expectations” are lacking, there might be no protected interest at all.
o Since the rational relationship falls apart then where does this go in our taking? No this is not a physical taking?No. Is it a nuisance prevention? No. There is nothing bad in what they are doing in terms of wanting a building. There is a valid public interest in preserving historical landmarks.
o What things should we be concerned with. The character of the governmental action.
o Investment Backed Expectation- how do the courts respond. Reasonable investment was a long time ago and this is the first time that you could have made a lot more out of this. There is history. Your expectation was not to build a high rise.
 You can have this TDR you are not being harmed that much.
 Notes 1169
 You are engaging in conceptual severance. We haven’t gone too far. There is no relationship to harm it is all about preserving a benefit. It is on the impact of the distinct investment back distinctions.
o They way you win is when you can’t really sever either physically or the exact bundle of right. It has to impact your property uniformly.
o IF you can isolate your property to zero and you have leftover property that is valuable you might have a problem.
o Rehnquist- TDR are another way of looking at reciprocal advantages. Than aren’t we saying we can use funny money.
Contemporary Statement: The modern approach to cut the Gordian know of harm or benefit is to use the common law of nuisance, as it exists in a state prior to the imposition of regulation that is claimed to be a nuisance abatement measure, as the beachmark. The only regulations that fall within this rule are those designed to stop common law nuisances, as determined by an objectively reasonable application of the precedent pertinent to nuisance.
Lucas v. South Carolina

o Lucas is the last categorical rule. Here there is a complete wipeout. If it is a wipeout you must compensate even if it is a regulation even if it is addressed to ill and even if it is addressed to common law.
o It it is being done under the nuisance justification. Did it even really happen here? If it wipes out the property value to zero it is a compensable taking unless what is being dealt with is a nuisance under common law.
o Issue of serious public harm. How do we know when a property is wiped out. It is not that easy to tell. How do we know that it is a common law nuisance because of the common law understanding under property law. Sometimes called the “noxious use rationale” if we limit ourselves to the state to define nuisance we are getting rid of things that we think are bad for our society.
o Scalia says that it must cause a common law nuisance it takes the categorical rule and puts it in the courts hands. We are only talking about what occurs in wipeouts. If it is not a wipeout—we go back to the loretto rule.
o IF we wipe out the use completely we have to pay unless it is a common law nuisance.