I. Property 1 A. Definition 1



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XIV. What is a taking?

A. Introduction

1. So far we have asked can the govt take the property and what is the appropriate compensation when the govt does take the property?

2. Now we are going to ask what happens when the govt does not admit that it is taking the property but the landowner and court says that it is a taking...

a. Common mistakes?

i. don't apply the public use requirement in these cases -- fact that there is no public use does not stop the private landowner from getting compensation
ii. don't apply the public use test when the question is whether or not there is a taking

b. police power regulations?

i. When will these regulations have the effect of interfering with the private landowners bundle of sticks to create an obligation to compensate?
ii. how far can the govt go in land use regulation b/f it is deemed to be compensable?

B. Physical Invasion?

1. Loretto v. Teleprompter Manhattan CATV Corp.

a. Facts

i. NY law provides that a LL must permit CATV to install upon his property
ii. cable installation occupied part of roof and side of bldg
a) wires on the roof and metal boxes / crossovers and noncrossovers
iii. S.Ct is not questioning the govt's ability to create this ordinance -- not exceeding the police power of the state
a) would have had to have been challenged under the due process clause -- NASH -- Loretto would have lost on this issue b/c rational basis test would have been applied

b. Issue

i. Does a minor but permanent physical occupation of an owner's property authorized by the govt constitute a taking of property for which just compensation is due under the 5th and 14th Amendments of the Constitution?

c. Holding

i. a permanent physical occupation authorized by govt is a taking without regard to the public interests that it may serve
ii. Court adopts a per se rule here

d. Reasoning

i. Property rights in a physical thing have been described as the rights to possess, use and dispose of it. To the extent that the govt permanently occupies physical property, it effectively destroys each of these rights
a) First, the owner has no right to possess the occupied space himself and does not have the power to exclude -- power to exclude is one of the most important sticks
b) Second, the permanent physical occupation forever denies the owner any power to control the use of the property
c) Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will not be able to make any use of the property
ii. constitutional protection of property rights cannot be made to depend on the size of the area permanently occupied.
iii. once the fact of occupation is shown of course, a court should consider the extent (size) of the occupation as one relevant factor in determining the compensation due
iv. court makes a big deal out of the third party intrusion instead of a regulation -- see below

e. What does the court leave open?

i. Footnote 22 -- CB 1175
a) if the regulation was different and required that the landlord provide cable installation if a tenant so desired then we would have a different question altogether since the LL would own the installation and not have to yield to the cable company. Ownership would give the LL rights to the placement, manner, use and possibly the disposition of the installation. The LL would decide how to meet the govt regulations and could minimize the physical, esthetic and other affects of the installation.
b) court is being careful to distinguish b/t govt regulations that require the LL to keep things on the premises (smoke detectors / mailboxes / etc) -- doesn't want to make the govt pay for each of these as takings
c) distinction is made between ownership of the cable and a regulation reguiring the LL to provide some services and safety measures
d) assuming that the burden is greater to the landowner when a 3rd party installs these things?

f. Dissent

i. How do you distinguish b/t temporary physical invasion which require a balancing test and permanent physical invasions which are takings per se?
ii. What does the court mean by permanent?

g. How would this relate to NASH?

i. Argue that you are being forced to permit the physical occupation of the property by a third party
ii. there has been some action on this front ---
a) NYC ordinance required LL to renovate and rent out all of the units -- struck down on taking grounds -- permanent physical invasion by a 3rd party -- but had to distinguish rent control

i) did so by saying in rent control the LL invited the person into the bldg whereas this ordinance forced the LL to take the tenant in
b) S.Ct case tried the same argument and lost -- but this dealt with rent control
c) it seems that the only time you have a problem with this is when you have to put the apt into the market -- but what about in NASH where the LL was not allowed to demolish the bldg?

2. US v. Causby

a. Facts

i. military leased an airport and planes took off directly over a chicken farm
ii. the chickens killed themselves from the noise

b. Holding

i. Court held that the owner owned as much of the air above their land as they could conceivably use
ii. Court held that the direct overflight was a taking -- a taking of an easement of flight and the πs were entitled to compensation

c. Reasoning:

i. If, by reason of the frequency and altitude of the flights, respondents could not use their land for any purpose, their loss would be complete. It would be as complete as if the US had entered upon the surface and taken exclusive possession of it

3. Batten v. US (10th Cir)

a. Facts

i. planes from an air base caused noise, vibration and smoke to the π's property
ii. But there was no direct overflight
iii. Court held that since there was no direct overflight then there was no taking and therefore no compensation -- is this a legitimate distinction?

4. Kaiser Aetna v. United States (USSCt)

a. Facts

i. owner had a pond and wanted to dredge a channel to the ocean
ii. they did this at their expense after receving govt consent
iii. once the channel was built, the govt claimed the pond was now open to the public and that there was navigational servitude requiring acces to a pond

b. Holding

i. court found that there had been a permanent physical invasion on the pond and waterway by the govt
ii. "the imposition of the navigational servitude i this context will result in an actual physical invasion of the privately owned marina

c. Important language from footnote 18 -- CB 1171

i. Loss of future profits -- unaccompanied by any physical property restriction -- provides a slender reed upon which to rest a takings claim -- Andrus v. Allard

5. Pruneyard Shopping Center v. Robbins

a. Facts

i. state required that shopping center owners permit individuals to exercise free speech and petition rights on their property

b. Holding

i. S.Ct upheld the state statute b/c the owner had already opened the shopping center to the public (invitation?)
ii. Since the invasion was temporary and limited in nature, and since the owner had not exhibited an interest in excluding all persons from his property, the fact that the solicitors may have physically invaded the property cannot be viewed as determinative

c. Was the invitation the key in this case?

6. Theories tying these cases together? Distinguishing this case?

a. invitation?

i. is this a good way to look at this? Seems to work...

b. Permanent / temporary distinction?

c. Difference between residential and commercial property?

d. What was the govt trying to accomplish with each of these takings?

i. is the court giving a greater emphasis to certain rights?
a) Pruneyard -- 1st amendment right
b) this is not what the court is saying in these cases
c) court is using a bright line standard -- invade = compensation
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