Regulatory Takings

Front 1

Regulatory Takings Rule

Back 1

In order for a regulatory taking to be found, 100% of the economic value and productive use must have been removed from the property for the purpose intended by the owner.

Front 2

Penn Central

Back 2

Modern Case
Three prong test looked to in order to assess regulatory taking
1. Economic impact the regulation had on the claimant (relates to the diminution of value factor from Penn Coal)
2. Extent that the regulation interfered with investment backed expectations (primary purpose)
3. Character of government action

Front 3

Penn Coal

Back 3

Background case of almost all modern cases that established the "gone too far test". Fuzzy and almost impossible to apply.
Holmes (majority - if a regulation "goes too far" it will be a taking
Brandeis (Dissent) - the entire estate must be looked at. regulation in the public interest is not a taking.
3 factors in assessing regulatory taking:
1. Diminution of value looking at the devaluation of part of the estate v. the entire estate.
2. reciprocity of advantage, which balances the benefits of the parties that endorse the regulation v. the parties who do not
3. public interest/nuisance looks to see if the public is benefitted v. just a private party

Front 4

Economic impact the regulation had on the claimant (relates to the diminution of value factor from Penn Coal

Back 4

Penn Central Factor.
100% of the economic value is gone in the property because of the regulation. Not 100% gone if the property can still be utilized in ways or if other owners could still use value.

Front 5

Extent that the regulation interfered with investment backed expectation (primary purpose)

Back 5

Penn Central Factor
-The primary goal for use of the land is taken and this may effect investors
-

Front 6

Character of government action (relates to reciprocity of advantage and public interest factors from Penn Coal)

Back 6

the government's purpose in enacting a statute such as this is to prohibit negative environmental defects, which would negatively affect the public as a whole (policy maximizing social welfare) thus, this can be seen as a benefit not just to a private party but for the entire community. Weighing the burden to the servient party versus the benefit to the public.

Front 7

Categorical Rule #1

Back 7

Noxious Use

Goal: look for public safety and welfare
(Hadacheck)

Front 8

Categorical Rule #2

Back 8

Destroying of economic value and productive use
-even if there is market value found in other ways, a taking is found if all productive use is destroyed

Lucas
beach front property

Front 9

Categorical Rule #3

Back 9

Any permanent physical occupation imposed by regulation

Loretto (cable companies)

Front 10

Diminuation of value

Back 10

looks at the devaluation of part of the estate v. the entire estate.

Factor #1 Penn Coal

Front 11

Reciprocity of Advantage

Back 11

balances the benefits of the party that endorses the regulation v. the parties that do not.

Factor #2 Penn Coal

Front 12

Public interest/ nuisance

Back 12

burden on servient v. public benefit. not a taking if prevents nuisance.