SUMMARY OF LAST CLASS THE LUCAS “PER SE” RULES 1. PHYSICAL INVASION 2. DENIAL OF ALL ECONOMICALLY BENEFICIAL OR PRODUCTIVE USE EXCEPTION: BACKGROUND PRINCIPLES.

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Presentation transcript:

SUMMARY OF LAST CLASS THE LUCAS “PER SE” RULES 1. PHYSICAL INVASION 2. DENIAL OF ALL ECONOMICALLY BENEFICIAL OR PRODUCTIVE USE EXCEPTION: BACKGROUND PRINCIPLES NOXIOUS USES

SUMMARY (CONT.) TAHOE-SIERRAMORATORIA “SEGMENTATION” REJECTED LIMITS ON MORATORIA PALM BEACH THE DENOMINATOR PROBLEM

THE DENOMINATOR ISSUE: PALM BEACH ISLES ASSOCIATES KEY FACTS: : bought acres for $380, : sold 261 acres east for $1 million 3.Remaining 50.7 acres: 49.3 submerted : federal fill permit; expired : apply to DER for permit; denied Suit and settlement 6.Corps of Engineers denies fill permit

THE DENOMINATOR ISSUE WHAT THE ISSUE IS PERCENTAGE OF PROPERTY TAKEN NUMERATOR (TAKEN) OVER DENOMINATOR (ENTIRE PROPERTY) WHY IT’S SO IMPORTANT LUCAS OR PENN CENTRAL

FACTORS IN RESOLVING DENOMINATOR ISSUE LOVELADIES: FLEXIBLE APPROACH THAT TAKES INTO ACCOUNT FACTUAL NUANCES FACTORS: 1 TIMING OF PROPERTY ACQUISITION AND DEVELOPMENT 2 ENACTMENT AND IMPLEMENTATION OF GOVERNMENTAL REGIMEN

PALM BEACH POSITIONS GOVERNMENT: (1) LAND PURCHASED TOGETHER; (2) CAN’T SEVER PART SUBJECT TO REGULATION FROM REST PBIA: (1) NO COMMON DEVELOPMENT SCHEME (2) SEPARATED BY ROAD (2) DIFFERENT ZONING (4) NO UNIFIED DEVELOPMENT PLANNED (5) OCEAN SOLD BEFORE GOVT REGULATION

HOLDING IN PALM BEACH ACRES IS RELEVANT PARCEL 2.NO ECONOMIC VALUE 3.SO, TAKING UNLESS 4.NAVIGATIONAL SERVITUDE (BUT SCOPE OF SERVITUDE IS CRITICAL)

REMEDY: FIRST ENGLISH AGINS RULE: NO TAKING UNTIL GOVERNMENT DECIDES TO MAKE REGULATION PERMANENT RATIONALE: CAN’T FORCE GOVERNMENT TO TAKE PROPERTY FIRST ENGLISH: PROPERTY HAS BEEN TAKEN (“TEMPORARY TAKING” FOR THAT PERIOD)

REMEDY (CONT.) GOVERNMENT’S OPTIONS AT TIME OF FINDING OF TAKING: 1. KEEP REGULATION IN PLACE AND TAKE ENTIRE PROPERTY 2. RESCIND REGULATION AND PAY FOR TEMPORARY TAKING (NOTE LINK TO ARGUMENTS IN TAHOE- SIERRA, WHICH CAME LATER)

SUMMARY OF TAKINGS 1.CATEGORICAL TAKINGS: PHYSICAL OCCUPATION AND ALL ECONOMIC USE “NUISANCE” EXCEPTION--LUCAS 2.FEES: NOLLAN AND DOLAN 3.GENERAL REGULATORY TAKINGS: PENN CENTRAL (AND PENN COAL) DENOMINATOR ISSUE: PALM BEACH 4.REMEDIES: FIRST ENGLISH

CHAPTER 9: REGIONAL, STATE AND FEDERAL REGULATION INTRODUCTION 1. REGIONAL OR CRITICAL AREA REGULATION 2. THE “QUIET REVOLUTION” 3. CRITIQUES OF LOCAL REGULATION 4. DESIGNING THE STATE OR REGIONAL SYSTEM

REGIONAL AND CRITICAL AREA REGULATION REGIONAL AND CRITICAL AREA REGULATION CAMPSEN (391) THREE-FACTOR TEST: 1. NO SIGNIFICANT ENV. IMPACT 2. OVERRIDING PUBLIC NEED 3.NO FEASIBLE ALTERNATIVES