Property II Professor Donald J. Kochan

Property IIProfessor Donald J. Kochan Spring 2009 Class 48 25 March 2009

Today’s Material • An Introduction to Eminent Domain and Takings Law • http://www.donaldjkochan.com/classes/property/takingssummary.doc • Pages 941-980

U.S. Constitution, Fifth Amendment Amendment V “No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” http://www.archives.gov/exhibits/charters/charters.html

Incorporation DoctrineU.S. Constitution 14th Amendment • Using the 14th Amendment, the Courts have interpreted many provisions of the original Bill of Rights, which restricted Federal governmental action, as “incorporated” against the governmental action of the States. The first provision of the Bill of Rights “incorporated” was the Takings Clause. See Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226 (1897). Amendment XIV “Section 1. . . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . . Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (emphasis added)

State Constitutions and Laws • Almost every state has a corollary to the Federal Takings and Due Process protections • For a list of links to state constitutions, see: http://www.findlaw.com/11stategov/indexconst.html • These serve as an independent basis for relief for action by a State • But due to incorporation, the State is also subject to not only its own Constitution but also the Federal Constitution • States may provide more protection of these rights, just not less

California Takings Clause CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 19. (a) “Private property may be taken or damaged for a public use and only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. . . .” http://www.leginfo.ca.gov/.const/.article_1

CaliforniaDue ProcessClause CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. 7. (a) “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws; . . .” http://www.leginfo.ca.gov/.const/.article_1

Summary on Key Takings Issues: • Takings (a) involves the property rule(public use)and (b) the liability rule(just compensation). • Direct condemnation with full procedure – compensation is owed but if you as landowner can prove it’s not for a public use you theoretically have the right to exclude even the government. • Recognize that “public use” is a highly diluted standard and subject to high deference to legislative determinations of the same.

Summary on Key Takings Issues: Permitting and Exactions: Government is allowed to require you do something when you otherwise need permission so long as (a) it serves a substantial governmental purpose; (b) there is a essential nexus between a condition placed on your permit and that governmental purpose; (c) the court identifies the negative impact on society that has caused the government to expect the condition/action; and (d) the condition placed is “roughly proportional” to the assumed impact. If a-d are satisfied, its generally considered a legitimate exercise of governmental power and doesn’t trigger the takings clause. If a-d are NOT met, then a takings issue may arise.

Summary on Key Takings Issues: Permitting and Exactions – Here’s an example: You want to expand your store by 3 stories. The substantial government interest asserted will be that you will add to traffic and parking. So step (b) is the government says we’ll let you only if you build a parking lot – a possible nexus to the government interest. Step (c) – there’s undisputed evidence that your “negative” impact if you expand is 20 more cars in the neighborhood per day. Step (d) is the proportionality test – so if the government places a permit condition that you must create a 30 car parking lot then maybe that’s okay and not a taking; if the condition on the permit requires you provide a 230 car city parking lot then maybe you have a takings issue because the “exaction” is not roughly proportional to the potential impact of what the government is allowing you to do.

Summary on Key Takings Issues: • Inverse Condemnation The government has, in effect, physically invaded your dominion and thus there is a violation of the takings clause. Prototypical case – no formal procedure but the city starts digging up your lawn to lay a utility line or comes by and cuts down your trees. Note that “inverse condemnation” is often used coterminous with “regulatory takings” • Regulatory takings Your dominion is restricted; the government tells you how you can use your property. Only if it is a ruin of all economically valuable use is it a “taking” per se. Otherwise, we must decide whether the government has gone “too far.” After all “government could hardly go on” if it couldn’t regulate.

Summary on Key Takings Issues: • Police Power If you were never allowed to do it in the first place, you have no takings complaint. So, if the restriction on the use of your property falls under the general authority to regulate the safety, morals, and health of society there is little chance of a successful takings claim. See specifically Scalia on his opinions about traditional common law restrictions like nuisance. • If you decide that an inverse condemnation, regulatory action, or permitting condition constitutes a “taking,” you must still then go to the next 2 steps – public use and just compensation.

Concluding Remarks • Please consume this overview as a start to more detailed cases and issues to come later in the semester

Property II Professor Donald J. Kochan