GBL 480 Exam 2

0.0(0)

Studied by 0 people

Call Kai

Learn

Practice Test

Spaced Repetition

Match

Flashcards

Knowt Play

Card Sorting

1/104

There's no tags or description

Looks like no tags are added yet.

105 Terms

New cards

Takings Clause (5th Amendment)

Constitutional rule that private property cannot be taken for public use without just compensation.

Notes: these are federal laws relating to Congress; the government IS allowed to take your property, but it must pay.

Umbrella: Private Land Restrictions → Takings Clause

New cards

Is the government allowed to take your property?

Yes!

New cards

Incorporation Clause (14th Amendment)

The 14th Amendment extends the Takings Clause to state and local governments.

Umbrella: Takings Clause → Applies to states/local via 14th Amendment

New cards

Taking

When the government seizes private property for public use. Two types: physical taking and regulatory taking.

New cards

Physical Taking

Invasion or occupation of property rights by governmental action (e.g., taking land to build a highway; eminent domain). Constitutional as long as the government pays just compensation (market value).

Umbrella: Private Land Restrictions → Takings Clause → Taking → Physical taking

New cards

Regulatory Taking

Occurs when the government restricts the property owner's rights so much that the action becomes the equivalent of a physical seizure.

Analyzed as: categorical taking, use restriction (Penn Central test), or exaction (Nollan-Dolan test).

Umbrella: Private Land Restrictions → Takings Clause → Taking → Regulatory taking

New cards

Eminent Domain

The government's power and right to physically take private property for public use, as long as it pays just compensation. Just compensation is ALWAYS required.

Umbrella: Private Land Restrictions → Takings Clause → Physical taking → Eminent domain

New cards

Just Compensation

Payment the government owes the property owner when it takes a property; generally fair market value. Required for eminent domain and categorical takings. NOT owed for navigational servitude / public trust.

Umbrella: Private Land Restrictions → Takings Clause → Remedy → Just compensation (fair market value)

New cards

Condemnation Lawsuit

The process/lawsuit used to physically take property. Hinges on what the fair market value is in court.

Umbrella: Private Land Restrictions → Takings Clause → Eminent domain → Condemnation lawsuit

New cards

Takings Overview (decision tree)

1) Is it a physical seizure (eminent domain)? Yes → just compensation always required.

2) Is it a categorical taking? (a) Physical invasion/access mandate (Kaiser Aetna) or (b) loss of ALL economically viable use (Lucas) → compensation (fair market value).

3) Is it a use restriction that is not total? → Penn Central test (character of action, investment-backed expectations, economic impact).

4) Is it an exaction (condition on development approval)? → Nollan-Dolan test (essential nexus + rough proportionality).

5) Navigational servitude / public trust? → NO compensation.

New cards

Categorical Taking

A taking that is automatic (no balancing test); government must pay just compensation (fair market value). Two kinds:

(1) physical invasions (access mandates) (Kaiser Aetna) and

(2) complete loss of all economically viable use (Lucas).

Umbrella: Private Land Restrictions → Takings Clause → Categorical taking

New cards

Physical Invasions

Categorical taking where the government mandates public access to or occupation of private property. Compensation required even if the invasion is small.

Example: forcing public access to a private marina (Kaiser Aetna).

Umbrella: Private Land Restrictions → Takings Clause → Categorical taking → Physical invasion → Kaiser Aetna

New cards

Complete loss of economically viable use

Categorical taking when a regulation deprives the owner of ALL economically viable use of the land (Lucas).

Exception: no compensation if state nuisance law would already have prohibited the use. If any economic use remains, it is NOT categorical (Palazzolo) → use Penn Central.

Umbrella: Private Land Restrictions → Takings Clause → Categorical taking → Total loss of value → Lucas → Exception: nuisance law

New cards

Use Restriction

Government regulation that limits how an owner may use their land without taking all of its value. It is not automatically a taking. Courts decide using the Penn Central test.

Umbrella: Private Land Restrictions → Takings Clause → Regulatory taking → Use restriction → Penn Central test

New cards

Penn Central Test

Ad hoc balancing test for whether a government action is a taking. Courts consider:

(1) character of the government action;

(2) extent of interference with reasonable investment-backed expectations;

(3) economic impact on the owner.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Use restriction → Penn Central test → Character → Expectations → Economic impact

New cards

Character of the government action

Penn Central factor 1: the 'why' behind the action. Is it a broad police-power regulation that benefits all citizens (less likely a taking) or does it single out/physically invade the owner (more likely a taking)?

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Penn Central test → Factor 1

New cards

Reasonable investment-backed expectations

Penn Central factor 2: asks how far a regulation interferes with what the property owner reasonably expected to do with the property when they bought or invested in it. The greater the interference with those expectations, the more likely it is a taking.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Penn Central test → Factor 2

New cards

Economic impact on the owner

Penn Central factor 3: the actual loss in value of a property caused by the regulation. Greater diminution = more likely a taking (but diminution alone is not enough; Hadacheck lost ~200k in value and still got no compensation).

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Penn Central test → Factor 3

New cards

Transferable development rights

Development rights lost on a restricted parcel (such as air rights over a landmark) that the owner can use on nearby plots instead. They are useful because they let the owner recover the lost value by building more elsewhere. That reduces the economic impact of the restriction, which makes a taking less likely under Penn Central factor 3.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Penn Central test → Economic impact → Transferable development rights

New cards

Moratorium

A temporary ban on development while a land-use plan is developed.

New cards

Exaction

A special type of regulation: something the government requires an owner to give to the community in order to obtain approval to develop land (usually a conditional permit; the owner must do something for public benefit).

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Regulatory taking → Exaction → Nollan-Dolan test

New cards

Nollan-Dolan Test

Two-part test for constitutionality of development exactions (from two cases):

(1) government shows an essential nexus between the exaction and the legitimate state interest; AND

(2) government shows rough proportionality between the exaction and the impact of the development.

Fail either = taking.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Exaction → Nollan-Dolan test → Essential nexus → Rough proportionality

New cards

Essential Nexus

Nollan-Dolan part 1: a reasonable connection between the condition (exaction) and the legitimate state interest the government is advancing.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Exaction → Nollan-Dolan → Part 1

New cards

Rough Proportionality

Nollan-Dolan part 2: the exaction is related in both nature and extent to the impact of the development (is the condition the right fit?).

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Exaction → Nollan-Dolan → Part 2

New cards

Easement

A legal right to do a specific function on land (e.g., a right of passage) without owning it. A common form of exaction.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Exaction → Forms → Easement

New cards

Dedication

Giving away ownership of property for a specific purpose. A common form of exaction (stronger than an easement because title transfers).

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Exaction → Forms → Dedication

New cards

The Public Trust

The state of Michigan holds the navigable waters within the state for use by the public.

New cards

Navigational Servitude

Federal power over navigable waters. The government can regulate navigable waters without paying compensation, BUT it cannot convert a private pond into a public waterway without just compensation (Kaiser Aetna).

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Overview → Navigational servitude / public trust → NO compensation

New cards

Public Trust Doctrine

The state holds a title to lands under navigable waters in trust for the people, for navigation, commerce and fishing, free from interference by private parties. The state cannot relinquish this trust by transfer of property.

Important in takings analysis: no compensation owed for regulating land subject to the trust. (Michigan: state holds navigable waters for public use.)

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Public trust doctrine → Navigable waters (log float test) → Ordinary high water mark → No compensation

New cards

Quasi-Property Right

Description of the public's interest under the public trust doctrine: not full ownership, but a public right to use navigable waters that private owners cannot defeat.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Public trust doctrine → Quasi-property right

New cards

Ordinary high water mark

Line where water normally reaches at high tide; the area at/below it is subject to the public trust and public use, is not owned outright by the private owner, and may be regulated by government. Land above it is the private owner's.

(Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Public trust → Ordinary high water mark

New cards

Navigable Waters / Log Float Test

Michigan's test for navigable waters: if a log can float on the water, it is navigable and subject to the public trust.

Umbrella: Preservation of Natural Areas → Private Land Restrictions → Takings Clause → Public trust → Navigable waters → Log float test (Michigan)

New cards

Negative Externalities

Costs of producing a good that fall on people other than the producer, who have no say in the production decisions.

Pollution is the classic example: the polluter doesn't pay for it, so the market doesn't balance economic output against environmental quality. That market failure is why government regulation is needed.

New cards

Collective (public) Goods

Goods that can't be provided to one person without letting others enjoy them too, and that are generally nonexcludable, meaning no one can be kept from using them. (Clean air)

New cards

Approaches to Pollution Control (5)

1) Liability; 2) Direct regulation; 3) Charges; 4) Subsidies; 5) Pollution markets.

New cards

Liability (pollution control)

A way to control pollution through lawsuits. Landowners harmed by a polluter can sue for damages (money) or an injunction. A nuisance lawsuit is the classic example. It is the first of the five approaches to pollution control.