1. Agenda for 24th Class Admin stuff Name plates Handouts Slides
Takings III Handout
Takings
Physical occupation (Loretto)
Regulatory takings

2. Assignment for Next Class
Review any questions we did not discuss in class today
Read Takings III handout
No writing assignment
Optional: Examples & Explanations, pages , 629,

3. Review of Last Class Eminent domain Needed to prevent hold up problem
5th Amendment
no taking for public use without just compensation
But states may protect private property more
Public use
public purpose, even if property transferred to private parties for economic development or other uses
But minority favors stricter limits
Just compensation
Fair market value
But in practice government gives more
Statutes may require more

4. Loretto
NY requires landlords to permit cable companies to install cable equipment
Boxes and wires, bolts and screws
1/8th of cubic foot
$1 compensation pursuant to statute and regulatory commission
Marshall+5
Any “permanent physical occupation,” no matter how small, is a taking
Rule is better than standard
Blackmun+2
Should apply balancing test for regulatory takings (next class)
Formalistic to say occupation by 3rd party is per se taking
But equivalent mandate (e.g. requiring landlord to provide mailboxes) is not
$1 compensation later upheld by NY Ct of Appeals
Do you think the Court’s decision in Loretto was correct as a matter of law, justice, and/or policy?

5. Takings Qs
The city of Oneida owns the local electric utility. It needs to construct new power lines across Prof. Rasmussen’s property. If one of the electricity poles will be on Prof. Rasmussen’s property, does the city have to pay Prof. Rasmussen compensation?
Same as the previous question, except the poles will be on public land, but the power lines will cross Prof. Rasmussen’s property, 20 feet above the ground?
Prof. Barnett owns property on the Pacific coast of Oregon. The government decides that the coast is more beautiful and more friendly to wildlife if there are no buildings on it, so it forbids Prof. Barnett and similarly situated landowners from building on their property. Does Oregon need to compensate Prof. Barnett?
The federal government decides to build a military base next to Dean Guzman’s yoga retreat center. They own the land upon which they build the base, and they are happy to let Dean Guzman continue to operate his retreat. Nevertheless, the noise from the military helicopters and target practice ranges interfere with the mediation that retreat center attendees try to practice. Can Dean Guzman sue the government for compensation?

6. Pennsylvania Coal Coal Company sold surface of property
Retained mining rights including “support estate”
Grantee assumes risk of subsidence and waives all claims for damages
Pennsylvania legislation forbids mining that would cause subsidence
Plaintiff sued to enjoy mining inconsistent with statute
Defendant argued that statute was a taking of its property
Holmes (for majority)
Regulations can be takings
Regulations always diminish value of property
But can’t go “too far”
Purpose of statute was to protect property, not safety
Statute took “estate in land”
Brandeis (dissenting)
Statute protects public by prohibiting “noxious” use (nuisance?)
Diminution in value is relevant, but must be measured by value of entire property
Not just mining rights, not just value of “support estate”
“Denominator Problem” v “conceptual severance”
Do you agree with the majority opinion in Pennsylvania Coal as a matter of law, policy, and/or justice?

7. Penn. Central
Penn Central built and owned Grand Central Station -- a beautiful Beaux Arts building
Declared a landmark in 1967
In 1968, Penn Central wanted to build office building above station
Landmark Commission denied permit
Brennan upheld denial -- 3 factors
Economic impact
Look to parcel as a whole, not just air rights
Transferrable development rights mitigate burden
Interference with investment-backed expectations
“primary expectation”: RR terminal
Character of government action
Harm prevention v benefit creation?
Physical occupation?
Disproportionate burden?
Do you agree with the majority opinion in Penn. Central as a matter of law, policy, and/or justice?

8. Questions on Regulatory Takings I
Suppose Developer owns 200 aces of undeveloped land. The US Postal Service installs a mailbox on one corner of the property attaching it to the ground with a 2’ by 2’ concrete slab. Does the Postal Service need to pay the Developer compensation? If so, how would the amount of compensation be measured?
The East Dakota Supreme Court has held that shopping mall owners have no right to exclude political demonstrators and must allow demonstrations in their malls. Must East Dakota pay compensation to shopping mall owners?
Suppose the city of Rolling Meadows enacts an ordinance limiting all new construction to no more than 2 stories. Must the city pay compensation to landowners who had planned to build 3-story homes?

9. Questions on Regulatory Takings I
Suppose Developer purchases a large tract of ocean-front property and formulates plans to build and sell 100 homes. The city denies Developer permits to build 99 of the homes because of their impact on native plants and animals. The city does, however, allow construction of one home. Must the city pay compensation to the Developer?
Suppose the government requires homeowners to construct high metal fences around areas contaminated by hazardous waste. Must the government compensate affected landowners?
Supposed that, because of opposition by homeowners, the government repeals the statute in the prior question and instead authorizes and instructs the state environmental agency to enter onto affected properties and build high metal fences around areas contaminated by hazardous waste at government expense. Must the government compensate affected landowners?