1. Regulation as Taking Prof. David Glazier April 10, 2007 PropertyProperty

2. Today’s Class Takings Issues Cases we did NOT read Loretto v. Teleprompter Manhattan CATV Corp Pennsylvania Coal Co. v. Mahon Plymouth Coal Co. v. Pennsylvania When does regulation go too far? Penn Central v. City of New York Lucas v. South Carolina Coastal Council Course Wrap-up Scheduling

3. The Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

4. Takings Issues For what purposes can government take property? - Kelo: “Public use” = public purpose - State law may be more restrictive When does regulation so impact property value as to constitute a taking? Can government demand concessions for permitting use of private land?

5. Loretto v. Teleprompter Manhattan (1982) N.Y. law mandated landlords allow CATV wiring on their buildings - CATV companies given exclusive rights by city - Could install both “crossover” and bldg wires - Junction boxes and wires attached to buildings State CATV Commission set $1 payment U.S. S. Ct held permanent physical presence constituted a “taking” - But $1 payment upheld on remand

6. Pennsylvania Coal Co. v. Mahon (1922) Mahon bought surface rights subject to mining - Deed allowed removal of all coal at risk of collapse 1921 Pa. Statute required support for structures - Penn coal claimed this was a taking S. Ct. held: “If regulation goes too far, it will be recognized as a taking” - magnitude of diminution in value important factor - fairness of shifting burden to private parties

7. Cf Plymouth Coal Co. v Pennsylvania Pa. statute required pillar of coal be left along property boundary - Ensured double thick-wall between adjacent mines - Protected from flooding if one mine abandoned S. Ct. upheld: “average reciprocity of advantage” - requirement for safety of employees - no burden shifting to third parties

8. Penn Central v. City of New York (1978) What is the “regulation” in question here?

9. Penn Central v. City of New York (1978) What is the alleged taking?

10. Penn Central v. City of New York (1978) Why did majority say it was not a taking? “Whole property” approach to value

11. Penn Central v. City of New York (1978) Why did minority think it was a taking?

12. Penn Central v. City of New York (1978) What if Penn Central wanted to build this?

13. Penn Central v. City of New York (1978) What if no alterations were allowed?

14. Mayor vetoes sale of downtown air rights By Duke Helfand, Times Staff Writer March 20, 2007 Mayor Antonio Villaraigosa on Monday vetoed a plan to sell 9 million square feet of unused "air rights" over the Los Angeles Convention Center downtown — a gambit to boost the area's nascent residential boom. In a veto message to the City Council, Villaraigosa said he wholeheartedly supports the air rights initiative. But, he said, the proposed law behind it violates the City Charter by failing to give him an opportunity to review or reject projects spawned by the plan. Developers could buy vertical space over the Convention Center and use it to expand residential projects elsewhere downtown beyond what zoning codes allow — an idea that critics say will exacerbate traffic and strain other services.

15. Lucas v. South Carolina Coastal Council (1992) Chronology of Events: 1972 – Federal coastal zone legislation 1977 - 1986 - 1988 -

16. Lucas v. South Carolina Coastal Council (1992) How did S.C. S. Ct. justify state’s actions?

17. Lucas v. South Carolina Coastal Council (1992) What does U.S. S.Ct. hold?

18. Lucas v. South Carolina Coastal Council (1992) What does J. Blackmun’s dissent argue?

19. Lucas v. South Carolina Coastal Council (1992) What do you think? The rest of the story -

20. Upcoming Reading Thursday, Apr. 12: Environmental Considerations 15 min zoning wrap-up (1015–1030 + regular class) Read State v. City of Rochester, n1 862-68 Read Palazzolo v. R.I. pp. 1025-30 Read Tahoe-Sierra pp. 1031-38 Tuesday, April 17: Exactions (Last Class) Read Nollan v. CA Coastal Commission pp. 1042-49 Read Dolan v. City of Tigard pp. 1049-57 But wait...

21. Schedule Issues - Review session? -- Think about it, inputs by Thursday - Office Hours? -- T/Th 2:00 – 3:30 -- T + W next week -- afterwards?

22. Questions?