Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
22 Cards in this Set
- Front
- Back
|
Power to Take Property comes from where?
|
comes from 5th and 14th A
gives gov't police power control over health, safety, welfare, and morals |
|
|
Takings Jurisprudence Balances What?
|
the private interests of using land as we want and the public interest in controlling land use
|
|
|
What is a taking?
|
taking private land for public use
Requires just compensation Just compensation = market value (not private owners thoughts on value) |
|
|
pre 1987 inquiry
|
1. was there a taking
2. was it for public use 3. was there just compensation |
|
|
Modern inquiry
|
More thoughtful process
Does it advance a public purpose? |
|
|
What is Public Use (PURPOSE)?
Euclid |
Zoning is a legitimate exercise of police power
Zoning is not a taking as long as a) it bears a rational relation to a legitimate goal (h,s,w,m) b) it is reasonable and not arbitrary |
|
|
Hawaii Housing Authority
(public benefit v. public use) |
as long as rationally related to a conceivable public purpose
a) Act advances its purpose without the state's actual taking b) gov't does not have to use the land c) only the takings purpose, not its mechanics must pass the public use scrutiny |
|
|
Berman
|
re-development of blighted areas OK becasue they were injurious to the h,s,w,m
|
|
|
County of Wayne
(private for private) |
Property selected due to facts of independent public significance
a) Public necessity of extreme sort (RR) b) transferee remains accountable to the public on its use c) land selection based on public concern |
|
|
Kelo
|
Upholds development plan of distressed community
Deference to State Legislature |
|
|
What constitutes a taking?
|
1) Permanent physical occupation (even minor) is ALWAYS a taking (Loretto)
2) Temporary physical taking depends - leafletting/ free speech not a taking (Pruneyard) 3) Regulation of use a) Euclid - zoning is not a taking b) Penn. Coal - when regulation goes too far, it is a taking |
|
|
Per Se Takings Before 1987
Loretto |
Permanent Physical Occupation is a taking
Rationale - owners have property rights in a physical thing - right to possess, use, destroy Gov't occupation destroys each Owner has no power to occupy himself; cannot exclude Permanent occupation destroys owners right to control use of his property |
|
|
Penn Central (Regulatory)
|
Landmark Designation
Ad hoc factual inquiries a) character of government action b) interference with distinct investment backed expectations c) degree of diminution in value d) fair and just e)reciprocity of benefit f) remaining economic viability of the property * d and e added later |
|
|
Post 1987
Kelo |
private development of economically distressed area
Deference to state legislature re: public purpose - pursuant to a carefully considered development plan - look at the "whole" rather than the individual lots |
|
|
First English
|
When ordinance temporarily deprives owner of all economically viable use it is a taking
|
|
|
Broadening of Physical Occupation Factor
Nollan |
Essential Nexus Test
there must be an essential nexus between th purpose of the exaction and the purpose served by denying the permit |
|
|
Dolan
|
Rough Proportionality Test
There must be a rough proportionality between the exaction and the expected impact Need an individualized determination that the required dedication is related both in nature and extent of impact on propsed development |
|
|
Yee
|
rent control ordinance is not a taking
It does not compel physical occupation |
|
|
Emergence of New Per Se Rule
Lucas |
when all economically viable use is deprived = per se taking
Still EXCEPTION if intended use is a public nuisance |
|
|
Recent Application
Palazzolo |
No taking where portion of land is still usable after designation of a substantial portion
|
|
|
Tahoe
|
Moratorium on development not necessarily a taking
|
|
|
Physical Takings
Nectow |
Leading case striking down unreasonable zoning
Unreasonable if it does not advance the public welfare and seriously injures the landowner In this case the land could not be put to practical use |
