JURI 4810: eminent domain and takings

eminent domain

government’s power to seize property - title and possession - for a public use, must provide just compensation

authorized under the 5th amendment Takings Clause

concept of what constitutes a “public use” is what is most argued in case law

regulatory taking

government enforces ED power by regulating a property’s use, such as through zoning

no loss of property ownership, but some kind of regulation that was enacted restricts your private capacty to make use of that land

• total or partial regulatory taking

takings continuum

most invasive is eminent domain

invasion of property (ex: public beach access)

regulatory taking: you own the property but property use is restricted (partial or total)

kelo case

controversial case that significantly expanded the definition of “public use” by upholding power of the government to take private property for the purpose of economic development (land taken went to private developers)

pre-kelo

there were 2 main acceptable “public use” takings through eminent domain

1. transfer from private to public ownership

2. transfer from private to private ownership for a public use (usually a common carrier, utilities, public infrastructure)

post-kelo

many states passed anti-kelo laws that aimed to limit the scope of “public use”

Dakota Access Pipeline dispute over a private oil company claiming that an oil pipeline constituted a public use

Bongaroo development (international, sydney australia) exercise of compulsory acquisition (their version of Eminent Domain) to take subsidized housing for a large commercial development for the purpose of economic development, argument over whether that was a public use

role of ED and regulatory takings as gap fillers

balance private property rights with environmental protection, primarily by ensuring just compensation when environmental regulations restrict land use so severely that they function as public acquisitions

Lucas v SC Council

background:

• 1986 Lucas bought two residential lots on Isle of Palms intended to build homes

• 1988 SC legislature enacted law that prohibited construction of permanent structures on the lots

• Lucas sued on basis that land had been taken without jsut compensation

issue: does construction ban constitute a “taking” calling for just compensation under the 5th and 14th amendments?

holding: yes; Lucas was deprived of all ecnomically beneficial uses/ all economic value in the name of common good and this constituted a total taking requiring just compensation

key: a regulation depriving a landowner of all economically beneficial use of property constitutes a total taking that requires just compensation

Penn central v NYC

background:

• Penn Central owned the Grand Central Terminal which was a designated landmark under NY Landmark Preservation Law

• then Penn Central entered a lease with a UK company for the purpose of building a multistory office building on top of the terminal and plans were denied by the Commission

• Penn Central filed suit for damages of the temporary “taking” ocurring between designation date and when designation under landmark law would be lifted, and for injuctive relief

issue: did the restriction under the landmark law constitute a “taking”?

holding: no; court held that the interference was not such that it amounted to a taking requiring just compensation and that the impact of the regulation was insufficient to require the government to institute eminent domain proceedings (partial takings don’t require compensation)

** restriction didn’t prevent Penn Central from ever constructing in the future; NY’s objection was to the nature of the proposed project - restricting the 50 story building was deemed reasonable in this context related to general welfare

significance of penn central case

decision led to the ad-hoc legal standard for determining when a government regulation becomes a taking: 3 factors considered

1. nature of governmental regulation (court balances liberty interest of property against government need to protect public interest, social value)

2. economic input factor (compare the value that has been taken vs that which remains post-regulatory taking)

3. extent of interference with distinct, investment-backed expectations (whether conditions of the land or property-owner (like restrictions) were foreseeable)

represented major shift to include considerations of “justice, social value, and fairness”

partial takings - fractional share basis: raises questions about ho to calculate and how to ensure compensation is just