December 7th Notes.docx

Constitutional Law December 7th, 2009 ? Notes -2nd Hypothetical Exam -Due on Monday, 12/4 at 4 p.m. in Hickman Hall (5th Floor) -Regulatory Takings Cases -When are regulations so extreme that they constitute a ?taking? of property under 5th Amendment Takings Clause? -When regulations are so extreme that the government is basically taking property physically without just compensation under force -This is the claim that needs to be proven to counter the power of eminent domain, otherwise deferential test of Court defers to Congress -At what point are regulations so onerous that they impose a taking? -Principles at stake: -Understanding of the need for the state to pass laws in the interest of the public good vs. desire to protect private property -Penn Central v. New York (1978) -Legal Question: Does the Landmark Preservation law constitute a taking under the 5th Amendment? -Does the NY law impose restrictions such that Penn Central?s property is effectively taken? -Claims: -Penn Central: they will not fundamentally alter building, but there are plans to build above current structure, and this is part of their property right; by restricting them from doing so, ownership of the property is being put in jeopardy because they are dependent on this revenue -Claiming a right to property development There is an undue burden placed on owner -If this is a public good, then public should pay -Penn Central should be compensated -New York: They are not prohibiting any construction on the property in the future, but in the interest of the city there is reason to restrict construction on landmarks Also the act does not prevent Penn Central from continuing actions they have practiced in the past -There are property rights that exist within the building now, and Penn Central can do things in the building to generate revenue and continue what they are doing, and although they cannot build in the air they can transfer those property rights to other areas of the property -Claiming a right to pursue the public interest -The action does not constitute a taking -Opinion: -Takings clause is a procedural process -Just because state imposes restrictions, if the property can still be used this does not constitute a taking requiring just compensation -There are no set formulas for deciding whether government action constitutes a taking under 5th Amendment -Generally look at cases on a case by case basis no clear test -Too many complications in this area of law to have clear tests that answer either a yes or a no -Look at property as a whole -Not enough to say that a piece of the property is restricted -NY law has not restricted what Penn Central can do with significantly large portion of the property -Decision deferential to legislature -Lucas v. South Carolina (1992) -Legal Question: Does the Beachfront Management Act violate the Takings Clause because it essentially constitutes a taking? -Act bars Lucas from building anything on his land -He is a property developer, not interested in living on land -Claim: -South Carolina -Why should citizens of S.C. subsidize Lucas? business venture? -Lucas -Lucas cannot build anything, and cannot sell it because no one else can build anything on the land -Opinion: -Court sides with Lucas -Lucas? property essentially becomes valueless, and if a property is rendered valueless, then the government is essentially taking it -Therefore Lucas is entitled just compensation -If when Lucas bought property the regulations were already in place, then that would be his fault and therefore he does not deserve just compensation -But if all economically beneficial use has been taken away, then this constitutes a taking, therefore deserving just compensation -Property developer clearly bought property to build on, so vested right to do that or anything with property is clearly being stripped away -Had vested right to develop something because he could no longer develop anything, any idea of developing something on property was gone -Dissent: -It is not Court?s role to determine whether something is completely valueless -Is the property completely valueless? Are there other things Lucas can do to generate revenue using the property besides development? -Dolan v. Tigard (1994) -Dolan is a property owner that wanted to expand business; upon applying for a permit; Tigard says that she needs to allow a bike path to go through and to construct property accordingly to laws to prevent possible flooding in order to get permit -Legal Question: Do regulations Tigard is imposing on Dolan violate the Takings Clause? -State conditioning permit based on her giving up certain aspects of land -Opinion: -Yes, this constitutes a taking -She is being asked to give up certain aspects of her land -City does not give conclusive evidence that bike path and flood prevention regulations will have the intended effect -More scrutinizing test -Rough proportionality ? if it?s that important state can simply deny her permit -There has to be some rough relationship and evenness between what she is being asked to give up and public use government is using property for