Property II Professor Donald J. Kochan Spring 2009 Class 48 25 March 2009.

Property IIProperty IIProfessor Donald J. KochanProfessor Donald J. Kochan

Spring 2009Spring 2009Class 48Class 48

25 March 200925 March 2009

Today’s MaterialToday’s Material

An Introduction to Eminent An Introduction to Eminent Domain and Takings LawDomain and Takings Law

http://www.donaldjkochan.com/classhttp://www.donaldjkochan.com/classes/property/takingssummary.doces/property/takingssummary.doc

Pages 941-980Pages 941-980

U.S. Constitution, U.S. Constitution, Fifth AmendmentFifth Amendment

Amendment VAmendment V

““No person shall be . . . No person shall be . . . deprived of life, liberty, deprived of life, liberty,

or property, or property, without due process of law; without due process of law;

nor shall private property nor shall private property be taken for public use, be taken for public use,

without just compensation.”without just compensation.”

http://www.archives.gov/exhibits/charters/charters.htmlhttp://www.archives.gov/exhibits/charters/charters.html

Incorporation DoctrineIncorporation DoctrineU.S. Constitution 14U.S. Constitution 14thth Amendment Amendment

Using the 14Using the 14thth Amendment, the Courts have interpreted many provisions of Amendment, the Courts have interpreted many provisions of the original Bill of Rights, which restricted the original Bill of Rights, which restricted FederalFederal governmental action, as governmental action, as

“incorporated” against the governmental action of the “incorporated” against the governmental action of the StatesStates. The first . The first provision of the Bill of Rights “incorporated” was the Takings Clause. provision of the Bill of Rights “incorporated” was the Takings Clause. See See

Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897).Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897).

Amendment XIVAmendment XIV““Section 1. . . . Section 1. . . .

No state shall make or enforce No state shall make or enforce any law which shall abridgeany law which shall abridge

the the privileges or immunitiesprivileges or immunities of of citizens of the United States; citizens of the United States;

nor shall any state deprive nor shall any state deprive any person of life, liberty, or property, any person of life, liberty, or property,

without without due processdue process of law; of law; nor deny to any person within its jurisdiction nor deny to any person within its jurisdiction

the the equal protectionequal protection of the laws. . . . of the laws. . . . Section 5. The Congress shall have Section 5. The Congress shall have

power to enforce, by appropriate power to enforce, by appropriate legislation, the provisions of this article.” legislation, the provisions of this article.”

(emphasis added) (emphasis added)

State Constitutions and LawsState Constitutions and Laws Almost every state has a corollary to the Federal Almost every state has a corollary to the Federal

Takings and Due Process protections Takings and Due Process protections

For a list of links to state constitutions, see: For a list of links to state constitutions, see: http://www.findlaw.com/11stategov/indexconst.hthttp://www.findlaw.com/11stategov/indexconst.htmlml

These serve as an independent basis for relief for These serve as an independent basis for relief for action by a Stateaction by a State

But due to incorporation, the State is also subject to not But due to incorporation, the State is also subject to not only its own Constitution but also the Federal Constitutiononly its own Constitution but also the Federal Constitution States may provide more protection of these rights, States may provide more protection of these rights,

just not less just not less

CaliforniaCalifornia Takings ClauseTakings Clause

CALIFORNIA CONSTITUTION CALIFORNIA CONSTITUTION ARTICLE 1 ARTICLE 1

DECLARATION OF RIGHTS DECLARATION OF RIGHTS SEC. 19. (a)SEC. 19. (a)

““Private property may be taken or damaged for Private property may be taken or damaged for a public use and only when just compensation, a public use and only when just compensation, ascertained by a jury unless waived, has first ascertained by a jury unless waived, has first been paid to, or into court for, the owner. . . .”been paid to, or into court for, the owner. . . .”

http://www.leginfo.ca.gov/.const/.article_1http://www.leginfo.ca.gov/.const/.article_1

CaliforniaCaliforniaDue ProcessDue Process

ClauseClause

CALIFORNIA CONSTITUTION ARTICLE 1 CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 7. (a) DECLARATION OF RIGHTS SEC. 7. (a)

““A person may not be deprived of life, liberty, A person may not be deprived of life, liberty, or property without due process of law or or property without due process of law or denied equal protection of the laws; . . .”denied equal protection of the laws; . . .”

http://www.leginfo.ca.gov/.const/.article_1http://www.leginfo.ca.gov/.const/.article_1

Summary on Key Takings Issues:Summary on Key Takings Issues: Takings (a) involves the Takings (a) involves the property ruleproperty rule

(public use)(public use)and (b) the and (b) the liability ruleliability rule

(just compensation).(just compensation).

Direct condemnation with full procedure – Direct condemnation with full procedure – compensation is owed but if you as landowner can compensation is owed but if you as landowner can

prove it’s not for a public use you theoretically prove it’s not for a public use you theoretically have the right to exclude even the government.have the right to exclude even the government.

Recognize that “public use” is a highly diluted Recognize that “public use” is a highly diluted standard and subject to high deference to standard and subject to high deference to

legislative determinations of the same.legislative determinations of the same.

Summary on Key Takings Issues:Summary on Key Takings Issues:

Permitting and Exactions:Permitting and Exactions:

Government is allowed to require you do something Government is allowed to require you do something when you otherwise need permission so long as (a) it when you otherwise need permission so long as (a) it serves a substantial governmental purpose; (b) there serves a substantial governmental purpose; (b) there is a essential nexus between a condition placed on is a essential nexus between a condition placed on your permit and that governmental purpose; (c) the your permit and that governmental purpose; (c) the court identifies the negative impact on society that court identifies the negative impact on society that

has caused the government to expect the has caused the government to expect the condition/action; and (d) the condition placed is condition/action; and (d) the condition placed is

“roughly proportional” to the assumed impact. If a-d “roughly proportional” to the assumed impact. If a-d are satisfied, its generally considered a legitimate are satisfied, its generally considered a legitimate

exercise of governmental power and doesn’t trigger exercise of governmental power and doesn’t trigger the takings clause. If a-d are NOT met, then a the takings clause. If a-d are NOT met, then a

takings issue may arise. takings issue may arise.

Summary on Key Takings Issues:Summary on Key Takings Issues:

Permitting and Exactions – Here’s an example:Permitting and Exactions – Here’s an example:

You want to expand your store by 3 stories. The You want to expand your store by 3 stories. The substantial government interest asserted will be that you substantial government interest asserted will be that you

will add to traffic and parking. So step (b) is the will add to traffic and parking. So step (b) is the government says we’ll let you only if you build a parking government says we’ll let you only if you build a parking lot – a possible nexus to the government interest. Step lot – a possible nexus to the government interest. Step (c) – there’s undisputed evidence that your “negative” (c) – there’s undisputed evidence that your “negative”

impact if you expand is 20 more cars in the impact if you expand is 20 more cars in the neighborhood per day. Step (d) is the proportionality neighborhood per day. Step (d) is the proportionality

test – so if the government places a permit condition that test – so if the government places a permit condition that you must create a 30 car parking lot then maybe that’s you must create a 30 car parking lot then maybe that’s

okay and not a taking; if the condition on the permit okay and not a taking; if the condition on the permit requires you provide a 230 car city parking lot then requires you provide a 230 car city parking lot then

maybe you have a takings issue because the “exaction” maybe you have a takings issue because the “exaction” is not roughly proportional to the potential impact of is not roughly proportional to the potential impact of

what the government is allowing you to do.what the government is allowing you to do.

Summary on Key Takings Issues:Summary on Key Takings Issues:

Inverse Condemnation Inverse Condemnation

The government has, in effect, physically invaded your dominion The government has, in effect, physically invaded your dominion and thus there is a violation of the takings clause. and thus there is a violation of the takings clause.

Prototypical case – no formal procedure but the city starts Prototypical case – no formal procedure but the city starts digging up your lawn to lay a utility line or comes by and cuts digging up your lawn to lay a utility line or comes by and cuts down your trees. Note that “inverse condemnation” is often down your trees. Note that “inverse condemnation” is often

used coterminous with “regulatory takings”used coterminous with “regulatory takings”

Regulatory takings Regulatory takings

Your dominion is restricted; the government tells you how you Your dominion is restricted; the government tells you how you can use your property. Only if it is a ruin of all economically can use your property. Only if it is a ruin of all economically

valuable use is it a “taking” per se. Otherwise, we must valuable use is it a “taking” per se. Otherwise, we must decide whether the government has gone “too far.” After all decide whether the government has gone “too far.” After all

“government could hardly go on” if it couldn’t regulate.“government could hardly go on” if it couldn’t regulate.

Summary on Key Takings Issues:Summary on Key Takings Issues:

Police Power Police Power If you were never allowed to do it in the first place, you If you were never allowed to do it in the first place, you have no takings complaint. So, if the restriction on the have no takings complaint. So, if the restriction on the use of your property falls under the general authority to use of your property falls under the general authority to

regulate the safety, morals, and health of society there is regulate the safety, morals, and health of society there is little chance of a successful takings claim. See little chance of a successful takings claim. See

specifically Scalia on his opinions about traditional specifically Scalia on his opinions about traditional common law restrictions like nuisance.common law restrictions like nuisance.

If you decide that an If you decide that an inverse condemnation, regulatory action, inverse condemnation, regulatory action,

or permitting condition or permitting condition constitutes a “taking,” constitutes a “taking,”

you must still then you must still then go to the next 2 steps – go to the next 2 steps –

public use and just compensation.public use and just compensation.

Concluding RemarksConcluding Remarks

Please consume this overview as a Please consume this overview as a start to more detailed cases and start to more detailed cases and

issues to come later in the semesterissues to come later in the semester