Not a taking when removing blighted property for an urban renewal scheme as part of police power (Berman v. Parker) Not a taking when eliminating oligopoly as part of police power to protect public interests (Hawaii Housing v. Midkiff) Regulatory Takings Anytime the government authorizes a permanent physical occupation, it’s a taking (Loretto v. Teleprompter-cable installed on P’s roof and took up a portion of it) -Especially an issue if it restricts owner’s right to exclude Look at character of government action, economic impact, extent of interference If regulation regulates noxious use/nuisance out of existencedon’t need just compensation; if government regulates property to abate activities that are common law nuisances, there is no taking and no compensation owed (Hadacheck v. Sebastian-restricted brick yard since it was a nuisance) If regulation goes too far, it will be recognized as a taking (Penn Coal v. Mahon-different soil estates, only sold surface rights and mining caused subsidence) Look at public interest in statute and balance against its impact on D Diminution in value test Transfer development rights (TDRs): can transfer rights to develop one piece of land (landmark property) to adjacent properties if under D’s control to do things owners could not otherwise do (Penn Central-historical landmarks had regulations for renovations, look at factors) Factors for takingeconomic impact, extent to which regulation interferes with investment backed expectations and character of government action Conceptual Severance: look at parcel as a whole or in physical/temporal parts Loss of Economically Viable Use Regulation does effect a taking if it does not substantially advance legitimate state interests or denies an owner economically viable use of his land (Lucas v. South Carolina Coastal Council-regulation prevented building a dwelling on expensive land, found land valueless) -Legislative intent also very important here If regulation strips land of all value, must pay just compensation When the owner of real property has been called upon to sacrifice all economically beneficial uses in name of common good, he has suffered a taking Total taking inquirydegree of harm to public lands and resources by claimant’s proposed activities, social value of claimant’s activities and suitability to locality, and relative ease with which alleged harm can be avoided through measures taken by claimant and government Issue of TDRscircumvent just compensation clause, allows some areas to be more regulated than others
Not a taking when removing blighted property for an urban renewal scheme as part of police power (Berman v. Parker) Not a taking when eliminating oligopoly as part of police power to protect public interests (Hawaii Housing v. Midkiff) Regulatory Takings Anytime the government authorizes a permanent physical occupation, it’s a taking (Loretto v. Teleprompter-cable installed on P’s roof and took up a portion of it) -Especially an issue if it restricts owner’s right to exclude Look at character of government action, economic impact, extent of interference If regulation regulates noxious use/nuisance out of existencedon’t need just compensation; if government regulates property to abate activities that are common law nuisances, there is no taking and no compensation owed (Hadacheck v. Sebastian-restricted brick yard since it was a nuisance) If regulation goes too far, it will be recognized as a taking (Penn Coal v. Mahon-different soil estates, only sold surface rights and mining caused subsidence) Look at public interest in statute and balance against its impact on D Diminution in value test Transfer development rights (TDRs): can transfer rights to develop one piece of land (landmark property) to adjacent properties if under D’s control to do things owners could not otherwise do (Penn Central-historical landmarks had regulations for renovations, look at factors) Factors for takingeconomic impact, extent to which regulation interferes with investment backed expectations and character of government action Conceptual Severance: look at parcel as a whole or in physical/temporal parts Loss of Economically Viable Use Regulation does effect a taking if it does not substantially advance legitimate state interests or denies an owner economically viable use of his land (Lucas v. South Carolina Coastal Council-regulation prevented building a dwelling on expensive land, found land valueless) -Legislative intent also very important here If regulation strips land of all value, must pay just compensation When the owner of real property has been called upon to sacrifice all economically beneficial uses in name of common good, he has suffered a taking Total taking inquirydegree of harm to public lands and resources by claimant’s proposed activities, social value of claimant’s activities and suitability to locality, and relative ease with which alleged harm can be avoided through measures taken by claimant and government Issue of TDRscircumvent just compensation clause, allows some areas to be more regulated than others
Property-Petherbridge-2014-1.docx