Two Per Se Takings Rules (& a per se Exception)
“Categorical” or “Bright Line” Rules: Means same result every time. No balancing; no debate over benefits to public impacts on owner; no real analysis.
Physical Invasion: Regulation requiring any physical presence on land no matter how small = taking (of that small piece).
Complete Use Ban: Regulation denying all economically beneficial or productive use of land.
Exception: Not a taking to proscribe a use that is not part of owner’s title (committing a nuisance).
Not really “Property” so the government restriction cannot “take” it in the Constitutional Sense.
Rule: Takings are not unconstitutional.
Any time the government physically invades your property then that is a taking.
It doesn’t matter whether or not there is a highway that is in critical need, as long as it is a legitimate government use. Meaning generally speaking it has to be a public health and welfare for the public good.
Is redevelopment of areas on one town or another where the community is represented by another is economic development qualify as a public use under the constitution?
If it does, then the questions is when do we take the action?
If it is constitutional to take the property
If the government sits on your property then you are entitled to compensation because of that as a result.
Rare Situation: If the governments regulation that applies to an area is there, then that regulation is just a concept, the government has not put anything on your property. You can’t do stuff then.
The issue is whomever was told these things was not able to use their property for the reason that they wanted to.
If the answer is yes then the law is the valid exercise of the police power. The question is do you have to pay compensation for it?
The Too Far Test: The government does have to pay if it goes too far in restricting your uses.
What does “Too Far” Mean?: 100% is definitely too far.
If the government basically makes it impossible for you to use your property then that meet the standard of the “too far” test.
87% deprivation in value is not “too far”
It is entirely based on evidence.
Per Se Rules: if the government has taken any part of your property then it must compensate you for it.
If the government regulates you in a way that you can't use your property then the “too far” test applies.
Rule: IF the company or owner can still use the property in the way that it wants, but just not making as much of a profit, then it is not unconstitutional.
The Nuisance Exception: (look into it).
There is no question that if the government is thinking about doing a taking is that they know that they are going to have to pay for it.
The conclusions of courts is to try and identify which party is in the best situation to bear the risk of loss.
When you have a dispute before the court, where is it best or fairest for society to place the burden?
Do we even know? Who is going to pay for it?
Most things at least in theory might limit something the way you want it to.
What is the reciprocity of advancement: We all get a similar advantage from the laws that prevention of physical harm. (Why is this relevant?)
But if there are more than one person who has better stuff they are given precedent over those with not as nice stuff? (Is this property law).
But we are going to try to provide benefits for the whole. Part of our legal system is to protect the majority and minority.
There is a halt restriction.
You can only have so much permanent structure on the property.
Tourism dollars are important to every community because it provides money for the city that allows for funding to create more structure.
Lets try to protect the public’s interest.
A facial challenge is that is you are Penn Central you may not be able to make a persuasive argument.
If you can show that the law is bad across the board then you can make the argument that the law will be damaging to more than one party.
Why specifically can the company not build on top of GCT?
The limitation lies in the fact that there is an organization that prevents the company from building because GCT is a historical landmark.
The company says hey, if you don’t like option A then you can have option B.
Where do we start here? Was there a physical taking?: How did their building get selected and why is GCT a historical landmark?
How do we know that this is a historical landmark? The agency that was given the authority to deem GCT a historical landmark deemed it so that’s why. In theory there is some real value to the company in this case.
What is the downside of being designated a historical landmark?: You can’t build on top of the landmark.
Is there a part of that property though that the company can say the government has taken physically?: The Air Rights?
You own “from the center of the earth up to the heavens.”
There were no such thing as air rights in ancient times, but in the modern world 500 ft and above most buildings cannot be built that high.
An owner is entitled to use as much air space as reasonable.
The court said that if you are going to elevate a bridge over your chicken farm, so you never physically trespass nobody would argue that they hadn’t taken some aspect of the property. '
The point is that while the government has not actually taken possession of the property, but rather that the disruption to the property as a result of surrounding issues, was causing such tantamount issue that it constitutes as a taking.
The court did say that when we’re talking about takings, we don’t look at the property in pieces.
The question in part is did they buy the building thinking they were going to build a 55 story skyscrper or not?
“No set formula” Factors:
Extent of law’s economic impact on owner: focusing on parcel as a whole, what diminution in value from government restriction?:
How does the regulation lower the property value? It is not based on feeling. What is the nature when it is applied to this property?
Support estate is not generally considered something you can own.
Lucas Per Se Rule: The Lucas Per Se Rule suggests that a regulation that deprives a property owner of all economically beneficial uses of their property constitutes a taking, requiring just compensation under the Fifth Amendment.
What is the regulated portion? It is more of a value perspective, it is not necessarily the value of the land. If 2/3 is wetland there still might be enough economic value so presumably I paid less.
Extent law interferes w/ owner’s investment backed expectations: what is the owner’s reasonable expectations for use & value at time of purchase?
How does the court limit this/ distinguish this?: Fair market value?
What is a diminution in value and what at the time of acquisition do you think is “fair” to get:
Reasonable is going to help avoid grandiose determinations of market value.
If you weren’t a historic landmark before what makes you think you are one now? Hmmm?
Character of government action (law): physical invasion? Public interest & welfare?: How does the government go about a taking of someone’s property? Are they just regulating it? How does the government approach differ?
Regardless of size, a taking is a taking. If it is not a physical invasion then there might be other possibilities.
How important are interests to be served in relation to impact on owner?
Sometimes people don’t get their way and don’t get what they want.
But the zoning code doesn’t give you that option.
If you have just sued a city and taken for 1.3 million, you aren’t going to get the money back.
Generally this doesn’t happen. Where this chills the government is when asking for approval for two option and that’s it doesn’t sound like you’ve exhausted every remedy.
You can go for 45 and that is a swift decrease.
The character of the action has to to most with if this is a regulatory taking. If there is physical invasion then you do not have to apply any of these factors anyway, and therefore it is an invalid law and does not regulate anybody.
Noxious Use?: You are risking the public health and welfare therefore the taking is completely legitimate as it was not a right that anyone had in the first place.
What ifs are not applicable here because there are too many to establish.
If this a taking? Yes? No? Idk?
What does the STATE law allow or not allow?
Nuisances are typically determined by state legislatures.
The government gives society a little bit of an out:
p. 815 note. We observe the issues in these issues were perfectly lawful in itself, as there was not conscious act in dangerous risk taking.
Rhenquist dissent: Landmark owner gets no reciprocity of advantage of preservation law like various owner get from zoning.
Generally speaking we have drained all of the natural wetlands in the united states aside from biodiversity is that wetlands are very good at absorbing pollutants. Reducing the amounts of pesticides that go into the wetlands.
This would cause the government to make regulations impacting the wetlands.
Kind of like a nuisance, filling these wetlands is causing harm. Therefore that cannot be a taking because we are stopping you from causing harm to the public.
If we are forcing property owners to bear the burden of the benefit that society gets by keeping wetlands in place OR are we taking from property owners the ability to be a nuisance.
Scaila wrote the majority in Lucas, and asks “does a law provide a public good or prevent a public harm?” “Called it the stupid legislative staff test.” In other words you can always say that something is preventing a harm or providing a benefit.
Armstrong says that’s not fair. The court is generally distancing itself from prior action of noxious uses.
What we are taking is not property.
If society is getting this benefit then it is unfair to make smaller landowners pay for it? It depends.
If you bought property w/ restriction then it is not possible to get benefit of property when the restriction on it.
The government does not allow you to just develop on land areas whether or not you want it to or not.
It’s fine for the government to forego taxes for the benefit of public good.
It is NOT fine to disallow for people to do stuff on your property that you are not allowing anyone else to do. It’s nice that the community likes but you still have to pay for it.
We are all burdened by the zoning code.
Typical zoning restrictions may limit the perspective uses of a piece of property as to diminish the value in teh abstract (Continue reading on 818).
Not only do you not have permission to make changes but you also are responsible for making sure that your property is not going to harm another.
The benefit is to the owners of historic buildings.
Rhenquist does reference the nuisance exception on 819.
Last thing, this is kind of an oddity of the program here, but the court talked about this idea that the law recognizes that some people are going to have historic buildings.
So, the law allows transfer of expansion even though the zoning code doesn’t allow GCT to build atop their own building, then you could taking that desire to use and transport it to somewhere else that would not be typically allowed otherwise.
ex. GCT not able to build 55 story skyscraper, but can transfer this right to a different area of land and allow for something that no one else is allowed to do.
The idea that you were going to make a lot of money by building somewhere else would allow you.
Essay Practice: Exercises that were presented in class. Did you address the elements? Just make sure that you understand what they mean.
The call of the question will not ask you who will win and who won’t. The main point of his exam is the analysis. Make sure that you are abundantly clear about what the law it and how it applies to a situation with the information that you have.
Do not be conclusory, it is okay to make reasonable assumptions.