i. Govt regulation that seeks to control a nuisance like activity is never a taking -- harm benefit test
ii. state can regulate / ban activities that are injurious to the public and compensation is not required
i. only limitation on the police power is that it cannot exerted arbitrarily or with unjust discrimination
a) if it is not aimed at an individual person but all such situated persons then it will be upheld -- but what if the regulation only affects one person in the city?
ii. to prevent a regulation from working against a pre-existing use (like the brickyard) would arrest development --- this does not make sense -- it would not arrest development -- it would only make you pay for this development (one person should not have to bear the cost here -- compare with Spur)
iii. Court does not think that it is appropriate to pay someone for ceasing to use their land in a way they should not be using it in the first place --- when the land is harming others
iv. in the present case there is no prohibition of the removal of the brick clay; only a prohibition with the designated locality of its manufacture into bricks
a) court does not care about the financial restraints on doing this
v. Court does not address issue of whether the ordinance deprived all use of the property -- ie taking the clay out of the ground as well
ii. in the absence of a neutral benchmark of what is harming someone, we are lost using this test
a) in the eye of the beholder
iii. Wetlands -- preventing a harm or extracting a benefit?
a) he used this example to illustrate how this test is manipulative -- the states are split on this issue
f. Note 2 -- CB 1187 -- Difference b/t police power and eminent domain?
i. under the police power rights of property are impaired not b/c they becom useful or necessary to the public, or b/c some public advantage can be gained by disregarding them, but b/c their exercise is believed to be detrimental to public interests; it may be said that the state takes property by emenent domain b/c it is useful to the public and under the police power b/c it is harmful
g. Compare this case with the Spur case -- how are they different?
i. won't no compensation make sense only when the regulated owner could reasonably have foreseen at the time he purchased or improved the property that the regulation would be imposed; in that event, won't the price he paid reflect that expectation?
a) see CB 1188 -- Lawrence Berger
h. Lucas is coming....
D. Diminution of Value
1. Pennsylvania Coal v. Mahon
i. First case to find that a govt regulation could be a taking
ii. Penn Coal owned the property and sold the surface rights to Mahon who built a house on the property
i. the regulation itself might provide implicit compensation on the losers --- the apparent losers under a govt program might not be losers at all (or at least not big losers) b/c they are simultaneously benefited by the very action that burdens them
g. Problems with this test?
i. incredibly ambiguous
a) how much of a loss is too much
b) is the loss to be measured in absolute terms, or rather in relative terms?
ii. Decides the leg acted to arrest what it perceives to be a significant threat to the community and that there is nothing in the record to find that the Act makes it unprofitable to engage in the business or interfere with their investment backed expectations
iii. Saw the Kohler act as only protecting damage to private owner's homes but here the leg acted to protect the public
b) Test adopted -- the coal that must be left in place does not represent a separate segment of property for takings law purposes. there is no basis as treating less than 2% of the total coal as a separate parcel of property
c) when the coal that must remain is viewd in the context of any reasonable unit of petitioners' coal mining operations and financial backed expectations, it is clear that the petitioners have not met the burden of showig that they are denied the economically viable use of their property
i) does not interfere with the investment backed expectations -- what about the pillars?
c) character of the govt regulation
iii. Rejects proposition that you can divide the parcel of property into distinct segments
a) look at the property as a whole -- combine the surface / air / undergroung rights to come up with a large denominator
iv. landmark laws are not discriminatory or arbitrary-- part of comprehensive plan
v. Distinguishes the noxious use cases -- note 32 -- CB 1209
a) these cases are better understood as resting not on any suppossed noxious quality of the prohibited uses but rther on the gound that the restrictions were reasonably related to the implementation of a policy -- not unlike historic preservation -- expected to produce a widespread public benefit and applicable to all similarly situated property
vi. Reciprosity of advantage?
vii. Law does not interfere with the present use of the terminal
viii. What about the TDRs? Funny money?
a) is the court saying that these are compensation? No
b) But the court is saying that there is value in these rights
c) why shouldn't you be able to transfer these rights to other people
d) need to go through book notes on this
i. If we want a landmark why shouldn't we have to pay for it?
ii. this is the modern trend - courts will use four or five ad hoc test to determine if there was a taking
iii. why can't the govt just compensate to just above too far instead of fair market value?