The Court should …..
The V amendment to the Constitution holds that private property shall not be taken
for public use without just compensation.
The taking might take different forms. It can be happen through a formal
condemnation action, a judicial proceeding and court determination of the just
compensation, determined on the value of the property on the market (highest and
best use).
It might be “by conditioning”, when the use of land is restricted by a regulation or
the terms of a permit. Taking might finally take the form of inverse condemnation,
when there is a regulation of the land that is so substantial to deprive any beneficial
use of it. The taking might refer not only to land but also to personal property
(Horne).
There are different forms of taking. First of all, a physical taking occurs when there
is a concrete occupation of the property. In order to have a physical taking it is not
necessary to have a complete condemnation of the land. Even a minor occupation of
the property to devote it to a public use constitutes a taking. Hence, it requires the
Government to provide just compensation (Loretto v. Teleprompter Manhattan
CAVT Corp). Another form of physical taking is granting right of public access to
a private property (see Nursery v. Hasid, where the Supreme Court stated that when
the right to exclude third parties from the property is violated there is a physical
taking).
LOSS OF BENEFICIAL USE (prohibition) prohibition of any use is taking under
Lucas
A more subtle form of taking can occur when the government operates a regulatory
restriction reducing the practical use of property.
A regulation might deprive a property of “all economically beneficial or productive
use of land”, also known as “inverse condemnation” (see Lucas v. South Carolina
Coastal Council)
Not all prohibitions of use constitute a taking. In fact, under the common law
principle known as the nuisance theory, the use of the land might be restricted to
prohibit a nuisance or danger. Under this principle, a State could prohibit a use of
the land that constitutes a nuisance without having to pay any compensation. It
follows from that the a State cannot prohibit a use of the land that does not constitute
a nuisance without paying just compensation. For example, if the State imposes the
loss of all beneficial uses of the land for aesthetical purposes, then the restriction
will be qualified as a taking (see Lucas v. South Carolina Coastal Council). A
regulation is a taking only when it completely frustrates the owner’s reasonable
expectations and renders the property useless, unless it was a nuisance.
Two main elements must be evaluated to determine whether there is a taking: “the
character of the action and on the nature and extent of the interference”. If the
restrictions permit a reasonable beneficial use of property, and are authorized by a
law that promotes general welfare, then there is not a taking (Penn Central Trans.
Co v. NY City.).
PERMITS (state imposing conditions)
Generally, a State may impose on permit conditions that further a legitimate
government goal. However, not every condition is admissible. There must be a
reasonable nexus between the condition imposed and the intended use of the
land. Nollan v. California Coastal Commission
INTENSE REGULATION what about a regulation that does not prohibit but
regulates intensely, so that I cannot use as I had intended
Generally, a state can regulate property in the public interest even the regulation
impacts negatively the value of land. Government regulation that only incidentally
infringes on the owner’s use of property is not considered a taking, nor is regulation
that outlaws the noxious or dangerous use of property. (eg, zoning laws) The
Supreme Court has held that such statutes do not constitute a Fifth Amendment
taking that deserves compensation. (Miller v. Schoene, the Supreme Court decided
that the destruction of one class of property to save another by Virginia state was a
legitimate exercise of the state’s power. Hadacheck v. Sebastian, where the Court
held that governments have a broad authority to regulate actions that re harmful to
the general public.
While property may be regulated to a certain extent, if regulation goes too far (makes
it commercially impracticable to engage in the economic activity under
consideration) it will be recognized as a taking. Thus, it will require fair
compensation. Pennsylvania Coal Co. v. Mahon
In determining whether the Takings Clause (and its protections) applies, one has to
determine if there is a governmental “taking” (physical or regulatory) and if the
taking of property was for public use. If there was a taking for public use, the next
question is if “just compensation” was or should have to be paid to the property
owner. If this is not the case, the Amendment V is violated.
A state can impose conditions on the owner, but only if it advances a governmental
purpose and there is a connection between the permit and the conditions created.
“Government regulation can constitute a taking if a regulation goes "too far," which,
according to Justice Holmes, occurs when that regulation makes it commercially
impracticable to engage in the economic activity under consideration.
Here, we are confronted with ….
Regulatory?
Justifiable interest?
Reasonable?
Some beneficial use? Central controls. NO TAKING.
No beneficial use? Mohan controls. TAKING.