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Property II
University of Nebraska School of Law
Duncan, Richard F.

Property II
Richard Duncan
Spring 2012
IPA; Eminent Domain and the Takings Clause
Purpose of the Takings Clause
In the words of the Court from the Penn Central case, the “Fifth Amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” All Takings issues should be analyzed in light of the purpose that animates the Takings Clause.
Quintessential example of a taking for public use: City wants to take land for a park for everyone to enjoy, and pays just compensation
·         Also clearly allowed, takings for things like railroads and utilities which are used by the public
Quintessential example when a taking is NOT allowed under the takings clause of the Constitution: Property is transferred to the ownership of another
The Takings Clause of the 5th Amendment = “… nor shall private property be taken for public use, without just compensation.”
Kelo v. City of New London
In Kelo, the public cannot walk into Pfizer or the condos, but the entire city benefits economically along with the corporations
Justice Stevens: Public Use à Public Purpose à Anything the legislature or congress deems to be public welfare à public welfare is broad and inclusive “it is not for us to appraise [the reasons]” – Stevens
Thus, economic development takings may satisfy the public use requirement even if the land is transferred to a private developer.
Berman v Parker – D.C. determined neighborhood was blighted, took neighborhood, sold it to developers à Court held removing blight was sufficient public purpose
Hawaii Housing Authority v Midkiff – O’Connor said harmful use was being eliminated when oligopoly was broken up and that constituted a public purpose
U.S. v. Cosby
Condemnation action: The government wants to pay you a certain amount
Reverse condemnation action: Property owner says that the property was taken and that the government owes him
Common law rule: You owned all the way up to the top of the atmosphere and down to the core of the earth
Holding: Diminution of value of the property due to low altitude fly-overs is a partial taking which requires just compensation.
Degree of taking = degree of compensation
Loretto v. Teleprompter Manhattan CATV Corp.
Legislature made law that CATV would get access to apartment buildings to “facilitate tenant access.”
“Even though you can’t see it or use it at all, a taking is a taking, no matter how small.” – The size of the taking doesn’t go to whether or not there is a taking, just the amount of compensation.
Per se rule: Is there a taking of any size? If yes, just compensation must be paid
Ad hoc rule: Case by case and fact dependent.
Regulatory Takings
Pennsylvania Coal Co. v. Mahon
It is very clear that the bill sets out a deed that conveys the surface estate, but the coal mining company explicitly reserves the support estate and the mineral estate. And it reserves the right to mine coal right beneath the surface.
State passes Kohler Act which prevents mining of coal that public roads, homes, and public buildings.
Holmes, speaking for the U.S. Supreme Court says that the “general rule…is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” (i.e. regulatory taking only a taking if it goes “too far.”)
Too far = Impossible or commercially impracticable to use the land
The court says that there is a total taking of the coal in question (27 million tons of coal/27 million tons of coal) while the dissenting judge Brandeis says (small amount/all the coal the company owns)
Holding: Kohler act may go forward but coal companies are due just compensation (regulatory taking) a total taking of some coal
Suppose police shut down a crack house. Taking? Not really an exception, but often referred to as the crimes and nuisances exception.
Penn Central Transportation Co. v. City of New York
They wanted to build their own office building right above Grand Central, so they went to a commission to ask if they could, and they were denied.
Holding: Only those regulations interfere with the reasonable investment backed expectations of the owners are takings, and since Penn Central is making a reasonable profit, it wasn’t a taking. So here the Supreme Court was looking at how much was at stake/how much that had in total, whereas in Penn Coal it was amount in question/amount in questi

regulated to the point where there are no more economically viable or productive options for its use, then it would not be a total regulatory taking and just compensation would not be necessary.
If it’s a total regulatory taking because it is forbidding some kind of nuisance or crime, that would not be a compensable taking, that would simply be exercise of police power to stop a crime from taking place
This holding has NO effect on Penn Coal and Penn Central because those organizations could still use the property and therefore the takings were not total takings.
Nollan v. California Coastal Commission
Nollans want to expand their house and the California Coastal Commission wants an easement over their property for people to walk from one beach to the next. They ask the government if they can have permission to build the addition and the government proposes a quid-pro-quo. The government is proposing a physical taking of an easement.
Exactions cases: cases in which the government conditions granting some developmental approval on the property owner's transfer to the government of some interest in property in order to mitigate the harm caused by the increased development.
The doctrine of unconstitutional conditions holds that if an individual possesses a right as against the government, the government may not require waiver of that right as a condition to the receipt of a benefit. The Nollans argue “why should we give up our fifth amendment right to just compensation for ability to inflict harm on the public?”
The question is: Is stopping people from viewing the ocean a reasonable attempt to mitigate harm that would be exacted by the expansion of the Nollans’ home? If the exaction was designed to mitigate the harm created by building a bigger house, that would be okay. But it wasn’t, so the Nollans win.