美国财产法Chapter 13 Taking.docx

PKU-STL HuChapter 13 TakingsA. Foundation Era1. Noxious use or nuisance test: A regulation adopted under the police power to protect the public health, safety, or welfare was not a taking, even if it reduced the value of property.2. If regulation goes too far it will be recognize as a taking. The question is, there is no clear standard to of how far is too far.B. A new doctrine1. The regulatory taking doctrine was first recognized in Pennsylvania Coal case. But the standard in this case has been superseded by more modern tests, like the Penn Central standard.2. Pennsylvania Coal Co. v. Mahon (1922)(1) Facts: The deed between Coal Co and Mahon in 1878 provided that Coal Co reserved the right to remove all the coal under the land, and P assumed all the risks and waived all claims for damages that might have arisen from the mining of coal. The Kohler act, 1921, forbids the mining of anthracite coal which cause the subsidence to the surface estate. Mahon sued the Coal Co to prevent its mining. The Coal Co claim that the act goes to too far which actually become regulatory takings to his mineral estate.(2) Issue: whether the Kohler Act can be recognized as a taking(3) Rule: three factors test:a. Diminution of valueb. Public interest/private nuisancec. Reciprocity of advantage(4) Reasoning:a. Diminution of value ( denominator problem)1) Majority: 100%, huge2) Dissent: values are relative, we should look at the land as a whole, not muchb. Public interest/private nuisance1) Majority: Mahons property is a single home, so the public safety interest is not enough here. The public safety can be protected by notice or other tools.2) Dissent: public nuisance, cause harm to the publicc. Reciprocity of advantage1) Majority: no advantage to Coal company2) Dissent: regulate the competitors of Coal company as well, allow society to be safer, prevent people from injured so fewer law suits. And Brandeis thought that where police power is exercised to protect the public from detriment and danger, there is no room for considering reciprocity of advantage.(5) Points for discussiona. The opinion failed to provide a clear standard for deciding whether a taking exist.b. Hypos on P923(1) Not a takinga. Diminution of value: 10% diminution. Not muchb. Public interest: protect apple industry c. Reciprocity of advantages: maybe no (2) Probably not a takinga. Diminution of value: 90% diminution, but in Pennsylvania Coal, it is 100%b. Public interest: prevent cancer (prevent all landowners) c. Reciprocity of advantages: make people healthy and environment better C. The Penn Central standard1. The Penn Central Court created a new three-factor balancing test for determining if a regulatory taking had occurred. This is the basic standard used in most regulatory takings decisions today.2. Penn Central Transportation Co. v. City of New York (1978)(1) Facts: Penn Central owned the Grand Central Terminal, which was designated by application of New Yorks Landmarks Preservation Law to be a landmark. Thereafter, the Appellant entered into a renewable 50-year lease with UGP, under which the UGP agreed to construct a multistory office building on top of the terminal. The plan was denied by the commission.(2) Issue: whether a taking has occurred(3) Rule: three factors balancing testa. Economic impact of the regulation on the claimantb. The extent to which the regulation has interfered with distinct investment-backed expectationsc. The character of the government action(4) Reasoning:a. Economic impact: not much. 1) The economic impact should be entirely considered. Do not divide a single parcel into discrete segments.2) The commission just denied the two plans, but it does mean any building is prohibited.b. Investment-backed expectations: not interfered1) The appellant may continue to use the property precisely as it has been used for the past 65 years. 2) The appellant has already obtained a reasonable return.c. The character of the government action: ok1) Not a physical invasion 2) Serve public interest(5) Dissent: the imposition of general costs on a few individuals(6) Points for discussion:a. Economic impact: Diminution in value caused by a land use regulation that is reasonably related to the promotion of the general welfare is not a taking.b. Investment-backed expectations: the focus here is on the owners reasonable expectations when he invested in the property.D. Three categorical tests1. Permanent physical occupation(1) Loretto v. Teleprompter Manhattan CATV Corp (1982)a. Facts: A New York law requires a landlord to permit a cable TV line be run through the property. The New York Court of Appeals ruled that this does not amount to a taking of the property. Supreme Court reversed.b. Issue: whether a minor but permanent physical occupation of an owners property authorized by government constitutes a “taking”.c. Rule: A permanent physical occupation of an owners property is a per se taking.d. Reasoning: 1) Distinguish permanent occupation from temporary invasion2) A permanent physical occupation is perhaps the most serious form of invasion of an owners property interests.3) Constitutional protection for the rights of private property cannot be made to depend on the size of area permanently occupied.e. Dissent:1) This approach is potentially dangerous as well as misguided.2) The distinction between permanent occupation and temporary invasion is not substantial.2. Loss of all economically beneficial or productive use(1) Lucas v. South Carolina Coastal Council (1992)a. Facts: Lucas purchased two residential lots and intended to build single-family homes. But later, Legislature enacted an Act, which had barring Lucas from erecting any permanent habitable structures on his two parcels. A state trial court found that the land was valueless as a result of the Act.b. Issue: whether the Acts dramatic effect on the economic value of Lucass lots accomplished a taking.c. Rule: A regulation which deprives land of all economically beneficial or productive use is a taking, unless the regulation does no more than duplicate the result that could have been achieved in the courts under the background principle.d. Dissent:1) Justice Blackmun: There could never be a total loss because the owner can still enjoy other attributes of ownership such as right to exclude others, picnic, swim, camp in a tent or live on the property in a movable trailer2) Justice Stevens: The categorical rule created by the court is unsound and an unwise addition to the law of takings. The new rule is arbitrary because a landowner whose property is diminished in value 95% recovers nothing while an owner whose property is diminished 100% recovers the lands full value.e. Points for discussion1) The court didnt gave a clear definition about what all economically beneficial uses mean.2) It can be argued that the property actually is not entirely valueless in this case, like Justice Blackmun said.3) P didnt exhaust all the administrative remedy. He can apply for the permit.4) Lucas rule may have little practical value. Because the government will always avoid to deprive all uses of the owner. In these circumstances, the owner can hardly apply Lucas rule to protect them.5) The deprivation of value must be immediate. The court would not like to consider future interests.6) The background principle in the exception of this rule is something like “common law custom”.E. Collection 2. H owns Dogville, a small 1,000 square foot undeveloped lot in the center ofthe commercial section of downtown City A. On the lot is a small, old hot dogstand in the shape of a giant hot dog. H has owned Dogville for the past 20 years.Because of the new fitness craze, hot dog sales are low and H wants to raze thestand and build a modern facility. City A has recently passed a zoning ordinancethat requires a minimum lot size of 5,000 square feet for any new development.City A did this to prevent congestion in the center of town and keep as muchopen space as possible. H sues City A, claiming that the city ordinance constitutesa taking of his property. Which of the following is most likely?(a) City A will prevail because the ordinance has a rational basis and meets importantgovernment purposes.(b) H will prevail because he has preexisting vested property rights.(c) H will prevail because his property is reduced greatly in value.(d) H will prevail because his property can no longer be developed.2(a). City As ordinance is rationally related to a police power concern. Dogvillestill has economic value, there are no investment backed expectations of H thatthe statute is denying, and an important government purpose (maintenance ofopen space) is being forwarded. City As regulation is not a taking under thebalancing test of Penn Central.4. L is the owner of a large apartment complex. State M has recently passed legislationrequiring all landlords to provide internet service either by hard cable orwi-fi access to all of their tenants. A major purpose of this legislation is to provideall tenants with real-time access to online emergency broadcasts. L will have tospend over $20,000 to comply. L brings suit claiming that the law is a “taking” ofher property in violation of the Fifth Amendment. What is the most likely result?(a) L will win because the government is requiring her to affirmatively act, asopposed to merely restricting Ls use.(b) L will win because the regulation requires a permanent physical occupationof her property.(c) L will win because the regulation forces her to provide access to third parties,rather than being focused on her rights as an owner.(d) L will lose because there is no permanent physical occupation of her property.4(d). Ls right to exclude is not affected by this statute. Loretto ruled that a permanent physical occupation of anothers property is a taking. Since the government is requiring L to buy (and place in her units at her discretion) the needed components, it is not authorizing a third-party to occupy Ls property. The statute is similar to those requiring mailboxes or smoke alarms. Hence, there is no taking.5. J has owned Wetacre for the past decade. Wetacre is a two acre parcel, 95% ofwhich is natural wetlands. J plans to build his retirement home on a small area ofWetacre that is not wetlands. Js planned home is a moderate-sized three-bedroomhouse that can accommodate J, his wife, and two children. His planned homeoriginally met all existing laws; however, State Q recently passed a regulationprohibiting all development on, or within 300 feet of, wetlands. The regulationdeprives J of the possibility of constructing his planned home on Wetacre,although there is one small area where J could build a very small 500 square footcabin. In a suit charging that the regulation constitutes a taking of his property inviolation of the Fifth Amendment, which of the following is correct?(a) J will lose since State Qs regulation is a state regulation and the Fifth Amendmentis a federal law.(b) J will lose because he has not been deprived of all economic value.(c) J will win because he has been deprived of his pre-regulation expectations.(d) J will win because a 300 foot wetland barrier is not sufficiently tied to a substantial governmental purpose.5(b). The regulation reflects an important government function: forwarding health, safety, and public welfare concerns. J still has the use of his land; and it still has significant economic value. Thus, there is no taking under a Penn Central balancing analysis. J also cannot claim that Lorettos per se test is applicable since there is still economic value remaining. (a), (c), and (d) are all incorrect statements of the law.8. Which of the following is false?(a) Loretto does not apply to personal property.(b) An example of a regulation that secures an average reciprocity of advantage is a zoning ordinance.(c) Most taking decisions involve ad hoc, factual inquiries.(d) Even if a regulation deprives the owner of all economically viable use, it is not a taking if the restriction stems from background principles of the states property or nuisance law.8(a). In ruling that Loretto also applies to personal property, the Court in Nixon noted that any distinction between real and personal property is purely artificial. One can be just as completely dispossessed of personal property as of real property. (b), (c), and (d) are all correct statements.9. State B adopted a statute which prohibits the development of land if this would “significantly imperil or destroy necessary wildlife habitat.” D owned an undeveloped 90-acre parcel on which he intended to build a 20-lot residential subdivision. State B denied Ds proposed development because 10 of Ds 90 acres were part of an active “deeryard.” Deeryards serve as winter habitat for deer, playing a central role in a deers ability to survive. State B concluded that the proposed development would destroy necessary wildlife habitat, depriving the public of the opportunity to hunt and observe deer. If D challenges the denial as a regulatory taking, what is the most likely ruling?(a) The denial was a taking because State B deprived D of the right to exclude the deer from his property, which constitutes a permanent physical occupation.(b) The denial was a taking because State Bs action did not benefit the public in general, but merely benefited a select group of hunters and wildlife observers.(c) The denial was a taking because the deer are neither an endangered nor threatened species in State B.(d) The denial was not a taking because D does not have the right to put his property to this specific use if State B has a legitimate interest in protecting deer and their habitat.9(d). Loretto requires that the government pay compensation whenever it authorizes a permanent physical occupation. In Southview Associates, Inc. v. Bongartz, 980 F.2d 84 (2d Cir. 1992), the court ruled that a state regulation allowing deer to “invade” an owners land does not constitute a permanent physical occupation. (a) is incorrect because D still has the rights (i) to possess all of his land and (ii) to exclude any people from the land. (b) is incorrect because the public is benefited by preventing the loss of deer. The statute was adopted to protect State Bs environmental resources; the fact that some people receive more benefits than others is irrelevant. (c) is incorrect because there is no requirement that an environmental statute be limited to endangered or threatened species.10. Company T manufactures and sells tobacco products; it has spent millions ofdollars developing the formulas for its products. In the tobacco industry, companieszealously guard their formulas, which are protected as trade secrets andthus not available to the public. State M passes a statute that would make theseformulas available to the public, allowing competitors to replicate Ts productsand ultimately render Ts formulas worthless. In other states that have similarstatutes, no public health benefits have been observed. If T challenges the statuteas a regulatory taking, what is the most likely ruling?(a) The statute is not a taking because the Takings Clause does not protect pro