Property Ii

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Eminate Domaine-

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what happens when the govt grabs property for themselves. Are they compensating you appropriately. That is the real issue what is just compensation. The only issue is whether it is public use. That is only the substantive issue is if they are taking the property from you. In the process.

1-Are they taking? Or devaluing it other than taking it from me?
2-Is is a public use? Is it a public use as to a particular state jurisdiction?
If they haven’t discussed the question that you want to argue then the focus should be narrowed if they want it. (halfcock)

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Review up until now

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If not if the govt is imposing an easement on you it is exact same thing.
- if they are taking some of your land to the govt it is a taking
- if it is not a direct taking have they devalued your property by some landuse regulation
- It might be some other statute with regard to landuse.
First Q- does the regulation involve a permanent physical invasion? (running the cable through your property) – has to be compensation no matter how it might be
Second Q- if it is not a physical invasion is this addressed to involve some public harm.. the so called nuisance. Does this regulation limit harm that reduces the value of your house. It is never a taking. (lucas)
* one exception if the regulation zeros out property value it is a taking unless the use that is limiting is (would be considered a nuiscane already) under the common law. If that is the case we don’t have to compensate

Does the regulation go too far in terms of its specific investment back interms of expectation. And anybenefits endured to the property. Examined under the Penn Central.. goes too far. What is the regulation on specific expectation backed expectations. Considering also any regulations .

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Palzaaolo v. Rhode Island
applicatino of Penn cental Balancing "Investment-backed expectations

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the concept of investment backed expectations has proben to be enigmatic.

1st it is related to conceptual severance: this phrase might refer to an interset in a distinct property interest ( ex penn coal's interest in its Suppoert estate, a proprety interest totally wiped out by the Kohler Act), or it might mean a financial interest in a larger estate that is much dimished, thoug not totlaly eliminated (ex the diminution in valud to coal miners of the subsidence act upheld in Keystone).

2nd the phrase is suggestive if inherent limits: If either "investment or reasonable "expectations: are lacking, there migh tbe no protected interest at all

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Palazzo v. RHode Island.

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- this deals with post regulation taking
- if you go back to penn central the major thing you are going examine is the impact on expectation backed investments. If the govt engaged in somekind of taking an dyou came and bought the property it should be worth what it used to be minus the value of the taking
- the guy became the owner because the corporate filings delabatated and he was the only shareholder. And at that moment the regulation has already been passed
- the mere fact that you came on late after regulation is not relevant. Like what if you inheritied the property
- the govt could do something unconstitutional by the luck of the property not changing hands and not happening to pay for it. The point is that the govt should pay when they take.
- Still left with some question here. Because the court agrees that there is still 200,000 worth of value on the land. There is some significant value in the land.
- One of the argument the govt tires to make. Lucas- the zeroing out in the context of the background of statelaw.
- In lucas the court ovserved that a landowner’s ability to recover for a govt deprivation of all economically beneficial use of property is not absolute abut instead is confined by limitations on the use of land which inhere in the title itself. This is so, the ct readonsed, because the landowe is contrained by those restridtion that backgournd principles of the states’ law of property and huiscanse already in place.

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Palazzo v. RHode Island

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- This is “Background Law” there is some property that would get us out of lucas. The court says no property law and nuisance is part of its historical use.
- If you don’t zero out as long as your regulation is nuisance oriented then you are protected. The ct say we don’t see how this is nuisance oriented. That puts you into penn central and decide if the taking has goon too far.
- Pg 1198 conceptual severance
- When you are considering the investment backed expectation it does not matter if it was regulation before you took the property or not you still have to talk about expectation
- Someone who comes onto title, and someone who comes on with specific ideas in mind.

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Palazzo v. Rhode Island

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The rhode island supreme court rules that the use restriction in place in 1978, when Palazzolo acquired title, were party of the "backtround title" he had acquired and thus he could not assert that they consttuted a taking. The US supmree court that that the ruling, would immunize extremena dn unreasonable regulation against future attack, would be capricious, and would deny to inpplace owneres that ability to transfer to others the same title they had. The rhode island supreme court also rule dtha tthe use regulations did not deprive Palazzolo of all economically viable use of his land because he could still build a large residence. The US supreme court agreed. They remanded the case for a determination of whether, under the PC test, the regualtion sconsitutied a taking. O'Connor concurred, suggesting that regulations in place at the time an owner acquires property are relevant to the PC issues of the owners reaosnable investment -backed expectations.

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What was the regulation’s impact on the property when it was passed? Not on the current owner but the expectations of the owner when it was passed.

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The question becomes: May the state condiditon the grant of a buildng permit on the landowner's concent to what would otherwise be an uncompensated taking? Two dimenstions to this problem

1. Essential Nexus
2. Rough Proportionality

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Essential Nexus

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First questions is: Standing alone, is a taking rendered valide and not a taking if it is substantially related to the purposese of a valid land use regulation (e.g., a building permit requirment)? If a government may validly forbid someon from building an unsafe structue, it must validly be able to attach conditions to issuance of a building permid that advance the purpose of ensuring safety (e/g. no flamable material may be used in the structure); but the govt may not validly attach condition to issuance of a building pemit that are unrelated to the pupose of enhacngit safety.

A condition that wouled be a taking, if imposed in isolation, is not a taking when attached as a conditino of issuance of a land use permit under an otherwise valid reugaiton onlyu if the govt can prove the condition is substantially related to the govenment's valid regualtory objective.

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Essential Nexus
example

Nollon

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- The question is are you allowed to do that under the circumstances, and are you allowed to do that?
- If they require nollans and they have a case that is eas and that doesn’t say as much.
- They are offereing them money what they already have the right to do.
- The nollan are putting up a house. We augth to be considering if the variance of the way the house is constructed the way that we let them.
- There is a govtmental purpose to get the development
- The court calls this the essential nexis between the problem that you are wrestiling with and the trade of fthat yhou want. So if this was blocking people view from behind them and the govt says you have district a tower to have a senic look. Not a private residence
- The type of your building is impeding will help you resovle that propled.
- Three is no essential nexis and the comditino tha tyhou are placing on the property.
- Result – drop the easement condition or pay for it.

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Rough Proportionality

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the second issue posed by the problem of exactions, or conditional burdens, is whether the govt can impose a condition to a land use permit that is diproportionate to the impace of the proposed us on the activity that the govt sought to regulate in the first place. Even if a condition which would be a tkaing if imposed in isolation is valud becuse it satisfies the essential nexus test, it is a tkaing unless the govt proves that the nature and scope of the condition are roughly proportional to the impace of the proposeed development on matters that the underlying regulation addressses

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Dolan v. City of Tigard

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- Apply the nollan test the city has to apply the nexus test.
- In terms of her purposed use what do we have to look at and the conditions that they would place on the land. Are they in anyway responsive and will they help amurliate the impact of the ocean.
- There is a nexus here o fcourts.
- Rough proportionality and why might it not exist? Extent to which what the city does havce to show
- There is going to be increased traffic and lessend bike traffic.
- The majic word is “offset “ and maybe this can not be done.
- even if there is an essential nexus we are not going to let the govt go crazy.
- The criticism is that why not just use the rough proportionality rule and forget about the nexus.
- If you get rid of the nexus requirement what do you permit.
- The govt can save some money and some goods
- the rought proportionality test applies only to exactions; it does not apply to ordinary land use regulations, the underlying regulations to which exacting condition ar attached

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SUMMARY

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Each test must be satisfied for an exaction to be valid without compensation. If a condition is a tkaing by itself, the cdiiont cum reguation is a tkaing unless the gove can prove
1- the condiciotn is substantially related to the govt's valid regulatry objective

2- the nature and scope of the condition are roughly proportinal to the impatce of the proped development.

FIrst establish that the condition would be atkinag if imposed independently, second prove that such a condition satisfied the essential nexus test and thrist show that such a consition exacts concessiont that are roughly properopa to the developments impact

pg 288 in property review book

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Remedies

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Injunctive and delaratory relief: - if the govt wishes to proced with the regulation, it must pay just compenstaion

Damages- a regulation may take effect immediately but it takes some time for it to be determined to be a taking. Because injuncitive and eclaratory relief provide no redress for an "interim taking: the affected property owner is entitled to damages for the loss of his proprety during the period a regulatroy taking was in effect

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Damages Exampel
First English Church

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for the interum period following a flood the LC regulations prohibited a chrug from reconsturcint its camp structures. In first English Evangelical Lurheran Churc the U.S supremec court held that, if the regulation were proven to be a tkaing, the church was entitled to compenstaiont no matter how temporary or interim the takin. Interim takings are no different form permanent takings, save in their duriation: wher ethe govt's activities have already worked a taking of all use of property, no subsequent action by the govt can reliev it of the duty to provide compensation for the period during wheich the tkaing was effective. ..The court decided that this was not a taking.

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First English

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- P was the church retreat campground and they were locatr
- tc said that because the appeleeant alleged a reg taking and sought only damages allegations that the ordinance denied all use of lutherglen was deemed irrelevant.
- A land use regulation does not effect a taking if it "substantially advances legitimate state interests" and does not "deny an owner economically viable use of his land
- We don’t make the essential steps on the govt. You took it now compensate me. Undo the regulation an dlet me do. Inverse condemnation you get to maintain title as restricted. You are not every going to give title to the govt. Not all regulations are permanent.
- The court says it is a taking that the court says that there is a

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Analysis

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- 5th amendment if there is a taking the landowner can say reverse condemnation?
- Is the court finding that there is a retaking? We don’t really find.. we have to go back and figure that out.
- Assuming that the value is zero, is it zero for only a period of time
- When you take a specific step and deny someone use and they can prove that during that period of time that there was a taking then you are held to be compensable.
- If you accept you can limit you damages by taking and creating a new one (by undoing the regulation and paying for the temporary taking)
- The case focuses on the temp or interim while we are in the process of the taking.
- The city does not have the right to say that this is a pushing the envelope. It goes too far or it zero’s them out. Let’s float the trial ballon. This case presents that if they go to trial they have to pay for the taking while the balloon was afloat.
- Another way to look would be in terms of rental value..or capitalization over time.