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25 Cards in this Set
- Front
- Back
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EMINENT DOMAIN
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AKA CONDEMNATION--POWER TO TAKE PRIVATE PROPERTY FOR PUBLIC USE
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EMINENT DOMAIN HAS ITS BASIS IN:
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THE FIFTH AMENDMENT--PRIVATE PROPERTY SHALL NOT BE TAKEN WITHOUT JUST COMPENSATION
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WHAT CONSTITUTES JUST COMPENSATION?
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FMV
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WHICH IS NECESSARY TO PASS 5TH AMENDMENT SCRUTINY: PURPOSE OR MECHANICS?
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PURPOSE
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WHERE DOES THE STATE GET ITS POLICE POWER?
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10TH AMENDMENT
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WITH REGARD TO JUST COMPENSATION FOR TAKINGS OF LEASEHOLD ESTATES, DOES TX FOLLOW THE CAPITALIZATION OF THE INCOME METHOD, OR THE VALUE OF THE LEASEHOLD METHOD?
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VALUE OF THE LEASEHOLD METHOD
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CAPITALIZATION OF THE INCOME METHOD
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RELATES TO TO JUST COMPENSATION FOR TAKING OF A LEASEHOLD ESTATE; CONVERT THE INCOME THAT YOU RECEIVE AND CAPITALIZE IT FOR THE REMAINDER OF THE TERM (AVERAGE PROFITS STRETCHED ACROSS REMAINDER OF TERM AND CAPTILIZED OVER REMAINDER OF TERM)
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VALUE OF THE LEASEHOLD METHOD
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RELATES TO TO JUST COMPENSATION FOR TAKING OF A LEASEHOLD ESTATE; DIFFERENCE BETWEEN THE FMV LESS THE K PRICE TO BE PAID OVER THE REMAINDER OF THE LEASE (NO CONSIDERATION FOR LOST PROFITS)
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UNDIVIDED FEE RULE
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RELATES TO PARTIAL TAKINGS--PROPERTY IS EVALUATED AS IF ALL OF THE OWNERSHIP INTERESTS WERE HELD BY ONE PERSON--THEN DISPARATE PARTIES CAN DUKE IT OUT AMONGST THEMSELVES AND ARE ENTITLED TO A SHARE PROPORTIONATELY
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IN TX, IF THERES A PARTIAL TAKING, ARE YOU OBLIGATED TO PAY FULL RENT? WHY/WHY NOT?
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YES, BUT ENTITLED TO COMPENSATION FROM CONDEMNING AUTHORITY; ALLOWING RENT ABATEMENT INTERFERES WITH STATUTORY CONDEMNATION
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INVERSE CONDEMNATION
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ACTION THAT A PRIVATE CITIZEN BRINGS AGAINST THE GOV'T, IN WHICH THE CITIZEN SAYS THAT THE GOVT HAS TAKEN FOR OTHER THAN PUBLIC USE AND NOT COMPENSATED
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DOCTRINE OF UNCONSTITUTIONAL CONDITIONS
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GOVT MAY NOT REQ A PERSON TO GIVE UP A CONSTITUTIONAL RIGHT IN EXCHANGE FOR A DISCRETIONARY BENEFIT CONFERRED BY THE GOVT WHERE THE PROPERTY SOUGHT HAS LITTLE OR NO RELATIONSHIP TO THE BENEFIT
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PA COAL V MAHON
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REGULATORY TAKINGS CASE; HOLMES SAYS THE REGULATION ON THE MINERS GOES TOO FAR--THERE IS A TAKING
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LUCAS V S CAROLINA COASTAL COUNCIL
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REGULATORY TAKINGS CASE; GUY BUYS TWO EXPENSIVE LOTS AND AFTER ZONING ORDINANCE THEY ARE LEFT VALUELESS
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LORETTO V TELEPROMPTER MANHATTAN CATV CORP
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CABLE IS PERMANENT PHYSICAL INVASION
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NOLLAN V CA COASTAL COMM'N
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CARROT AND STICK TAKINGS CASE; IF YOU WANT TO BUILD YOUR HOUSE, YOU HAVE TO SIGN OFF ON THIS EASEMENT--NOT AUTOMATICALLY INVALID, BUT THE CLOSER YOU CAN BRING THE GOV'T PURPOSE AND MEANS TOGETHER, THE BETTER--LOOK AT NEXUS
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DOLAN V CITY OF TIGARD
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NEXUS TEST CASE--CT LIKES ROUGH PROPORTIONALITY; DOCTRINE OF UNCONSTITUTIONAL CONDITIONS CASE
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NEXUS TEST
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IS THERE AN ESSENTIAL NEXUS BETWEEN THE LEGITIMATE STATE INTEREST AND THE PERMIT CONIDTION EXACTED BY THE CITY? IF SO, WHAT IS THE REQ'D DEGREE OF CONNECTION BEWTWEEN THE EXACTIONS AND THE PROJECTED IMPACT OF THE PROPOSED DEVELOPMENT (SEE RR, RP TESTS)
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REASONABLE RELATIONSHIP TEST
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DOES THE REQ HAVE SOME REASONABLE RELATIONSHIP OR NEXUS TO THE USE TO WHICH THE PROPERTY IS BEING MADE
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ROUGH PROPORTIONALITY TEST
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NO PRECISE MATHMATICAL CALCULATION, BUT CITY MUST MAKE SOME SORT OF INDIVIDUALIZED DETERMINATION THAT THE REQ'D DEDICATION IS RELATED BOTH IN NATURE AND EXTENT TO THE IMPACT OF THE PROPOSED DEVELOPMENT
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ART I, SECTION 17 TX CONSTITUTION
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TAKINGS CLAUSE
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TX PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT (1995)
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TAKINGS LEGISLATION WHICH PROVIDES BENEFITS AND LIMITATIONS FOR LANDOWNERS
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WHAT ARE THE 6 BENEFITS OF THE TX PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT
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1. MAJOR VIRTUE IS THAT THE GOVT HAS TO "LOOK BEFORE IT LEAPS" IN REQUIRING AN IMPACT ASSESSMENT (WHEREIN GOVT MUST LOOK AT BENEFIT/BURDEN/ALTERNATIVES, ETC)
2. ITS MUCH EASIER UNDER THE ACT TO EST THAT A TAKING HAS TAKEN PLACE; 3. DEFINES A TAKING AS ANY GOVT ACTION THAT AFFECTS REAL PROPER WHICH REDUCES ITS VALUE BY 25% OR MORE 4. ITS A JURY AND NOT A JUDGE THAT DECIDES WHETHER A TAKING HAS OCCURRED 5. GOVT MUST GIVE 30 DAYS NOTICE TO LANDOWNERS OF POTENTIAL TAKINGS BEFORE THEY TAKE ANY ACTION 6. IF GOVT DOES NOT DO IMPACT ASSESSMENT, ITS INVALID |
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WHAT ARE THE 6 LIMITATIONS OF THE TX PRIVATE REAL PROPERTY RIGHTS PRESERVATION ACT
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i. Applies only to a few gov’t bodies; does not apply to fed regs as it is a state mandate (limited protection)
ii. Limited application against local gov’t bodies—does not apply to regs enacted by cities (with very few exceptions) iii. Applies to a limited scope of gov’t actions 2.07.003 (17 exceptions to rule) iv. No absolute right to compensation v. If you win takings lawsuit, the sole right that you have is to require that the gov’t body invalidate the reg—entitled to comp only if the govt body decides to do it anyway (WHAT?) vi. Loser pays winner’s atty fees |
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WHEN DOES A REGULATION GO TOO FAR?
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WHERE THE REGULATION TAKINGS MAKES IT COMMERICIALLY IMPOSSIBLE TO USE THE PROPERTY, THEN THE GOVT GOES TOO FAR--IF THE REG CAUSES AN INDIVIDUAL TO BEAR PUBLIC BURDENS ALONE, IT GOES TOO FAR
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