Takings Clause : “[N]or shall private property be taken for public use w/o just compensation.

To invoke Takings Clause, claimant must show that:

(1) His private property
(2) has been “taken by the gov’t
(3) for a “public use”
(4) w/o just compensation

 “Bundle of Sticks”: bundle of rights

o 1. Right to exclude others (State V. Shack-migrant farmworkers)
o 2. Right to Use/ Right to Possess
o 3. Right to transfer (alienation)- right to convey my property (limited in part by Civil Rights
Act.
 Procedural Due Process: individual has the right to assert Procedural D.P. against the gov’t in terms
of the gov’t taking property. Associated w/  Fundamental fairness: notice, opportunity to be heard,
impartial decision-maker.
 Substantive Due Process: have a right to have a judge 2nd guess the substantive decisions of the
legislature; controversial b/c judge can question the more democratic legislature. Refers to
fundamental rights and liberties as found by federal & state sup cts.
o Is there a rational basis for the gov’t action? Does it reasonably relate (police power) to the
purpose? Did the gov’t act arbitrarily? Did they single out an individual?

I. Eminent Domain
Plenary (broad) power of condemnation, to take title from an unwilling seller. This power lies within
the Legislature, and the executive agency condemning must have the authority from the
Legislature.
 Limitations on the power:
 “just compensation”- what a willing buyer would pay a willing seller for the property.
 “public use”-public access expanded to mean public purpose
o common carrier- transportation entity that makes its services available to anyone. Using
eminent domain to open a railroad station is not public ownership; but the public can
use the common carrier as a railroad.
o mall- has public access but private ownership

Kelo v. City of New London – J. Stevens delivered the opinion of the Ct (2005)
Facts: The City of New London was a blighted city and was targeted for economic revitalization. Kelo’s property
was not blighted and was condemned only b/c of its location within the scheme of the plan to build momentum.
Issue: Whether the economic development satisfied the “public use” requirement of the 5th amend. or violates it?
Sup Ct. defined public use broadly and this was the problem. All Legis had to do was call it “public purpose” to take
the property.

Rule of Law: A development plan to revitalize an economically distressed city involving the acquisition of
property by the power of eminent domain qualifies as a “public use” within the Takings Clause.
Holding: Taking satisfied “public use” requirement of the Fifth Amendment.
  Hawaii v. Midkiff: title was taken from lessors and transferred to lessees (for just comp.) Reaffirmed
Berman’s deferential approach to legis. judgments and concluded that State’s purpose of eliminating the
“social & economic evils of a land oligopoly” qualified as a valid public use. “A purely private taking could
not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of gov’t
and would thus be void.”

 Berman v. Parker: Berman had a non-blighted store in a blighted area and a statute was enacted to
authorize the use of eminent domain to promote economic development.
o To resolve issues, not on a piecemeal basis, but in light of the entire plan.
o we cannot say that public ownership is the sole method of promoting the public
purposes of community redevelopment projects.

J. Stevens deferential to the local legislation.

 Sup Ct. is not constitutionally equipped to decide these issues
 The issue of democracy (Not a case of Judicial Activism, but Judicial Restraint)
 Will not adopt bright line rule that economic development does not qualify as public use.
Promoting economic development has always been a function of gov’t.
 Deference:
o a. Ct give great respect to legislative decisions
o b. Area was sufficiently distressed to constitute a need for economic development
o c. Must look at the steps the legislature went through before “taking.”
 No specific benefit to group or individual

J. O’Connor dissent Legis. cannot be trusted; cannot have all this deference; there has to be a judicial check.
-The basis that she dissents: uses the term “justice & fairness” a lot; not necessarily the law.
-Wants a bright line rule that if this is an economic development, it is not per se constitutional taking (wants to tie
the Legis. hands)
o Did not dispute the expansion that public use is public purpose. Says that economic development
takings are not constitutional b/c she thought that would benefit the private developers.
Economic development takings seriously jeopardize the security of all private property
ownership.  worried about the gov’t powers overbearing the little people. Gov’t plays
favorites; cuts too broadly; no limits.

* Distinguishes Berman and Midkiff saying it remedied a social harm

 The Ct expands the meaning of public purpose to include a secondary benefit to the public—such as
increased tax revenue, more jobs, maybe aesthetic pleasure.
1. Displays empathy
2. Legislates from the bench
3. Doesn’t follow precedent

1. The sovereign may transfer private property to public ownership- such as a road or military base
2. The sovereign may transfer private property to private parties, often common carriers, who make the
property available for the public’s use. (Ex: railroad, public utility, a stadium)
3. Takings that serve a public purpose also satisfy the constitution even if the property is destined for
subsequent private use (ex. Berman, Midkiff)

 Counterargument to being an activist judge:

1. Looking at Words of the Constitution
2. Stand up for property rights (tenet of conservative Judge)

Didden v. Village of Port Chester (statutory)

Facts: Port Chester seeking to develop blighted -Constitutionality of this scenario: Gov’t can authorize
waterfront and wanted to build. Didden wanted to build developer as its agent.
CVS and private developer wanted a Walgreens.
Issue: The statute of limitations bars Didden’s claims -Challenge to the Const.: that
Didden argues that he did not know when the developer was trying to
developers came up w/ Walgreen’s plan; no public blackmail.
purpose under lies the pending condemnation of the
property; and Port Chester unconstitutionally delegated -Technicality: Statute of
condemnation to developers. limitations had expired.
Holding: Statute of Limitations had run, and Didden
could not put forth his claims **Dicta: On the merits of the
case, they probably would have
decided this case based on Kelo and it probably would have been constitutional.

** Didden had a lot of Procedural D.P. because the owner claimed that they didn’t get notice of the
hearing. Didden is an eminent domain case. In regulatory takings you do not see a lot of procedural due
process.

J. Harlan on REGULATORY TAKINGS: We are going to decide regulatory takings on the basis of
substantive D.P. We are not going to focus much on the owner crying about the impact of the
regulation.
II. Regulatory Takings (Inverse Condemnation)
- A taking in which the gov’t purports to act under the police power, but the property owner claims
it should have been proceeded by eminent domain.

Substantive due process: have a right to have a judge 2nd guess the substance of the decisions of
the Legislature. This is controversial judge questioning the more democratic legislature.

 Dichotomy: Regulatory Takings

1. Character of Gov’t Action: that the regulation meets the requirements of substantive
due process –must have real or substantial relation to protect public health, morals, or
safety.
2. Impact on individual property owner

 Role of Nuisance in Dichotomy cases: a. Gov’t- stop public harm; abate the nuisance; and b.
effect on property owner- can argue that there were no property rights b/c in bundle of sticks
there is nothing that you can assert to conduct public nuisance.

Mugler v. Kansas (brewery case) – J. Harlan (1887)

Police Power- not governed by eminent domain principles b/c police power has nothing to do
w/ takings clause.

Facts: Mugler’s property was regulated by statute prohibiting the manufacture of alcoholic beverages. He was
selling beer that was manufactured before the passage of the statute. He is claiming that his property
cannot be put to any other use, and if not used for manuf. Beer, it will be of little value.
 Issue: Whether the statute of Kansas is in conflict w/ the clause of the 14th Amen. D.P.
Holding: A prohibition upon the use of property for purposes to be injurious to the public health, safety, and
morals cannot be deemed a taking or appropriation of property for the public benefit.

 Statute held that where intoxicating liquors were sold were in violation and deemed to be a
places common nuisance.

Police Power: The court determined that an amendment prohibiting such a “noxious use of property” was in
effect a valid use of the state’s police power and was not in violation of the 14th Amendment. In essence,
regulatory takings, as a legitimate use of police power, do not require just compensation.

 J. Harlan differentiates from case in which actual physical invasion and public use (Pumpelly – land flooded by
gov’t made it a taking There was a physical invasion).
o Going to decide regulation takings on the basis of substantive D.P., not focusing on the
impact to the owner.

 Means to an End: As long as the means to an end is rationally related; no taking. Means Banning Alcohol;
EndAbate nuisances

 Bundle Of Sticks: Nothing in bundle of rights that says you can conduct public nuisance

 Pumpelly v. Green Bay: A taking b/c owner’ s property was flooded as a result of a dam being built
and cause permanent damage amounting to condemnation.

Physical Invasion of property just compensation  Questions to ask yourself:

1. Does the statute or regulation have a
 An early attempt by the Ct that they will defer to the Legis. real and substantial relation to
on these police power cases. (1887) the Police Power? Does it serve a
 The statute was adopted by a majority of the voters, and legitimate purpose?
this is significant b/c it is the most democratic way to enact 2. Is there a palpable invasion of rights
a law. secured by the fundamental law?
** Owner may convert the property to other lawful uses. 3. Bad Faith Attempt to single out? When
this happens then judicial
consideration is given.
Sic Utere Tuo Alienum Non Laedas: use your own
property as not to injure another’s property. Pg 661: If therefore a statute purporting
to have been enacted to protect
the public health, morals, or
safety, has no real or substantial
relation to those objects, or is a
palpable invasion of rights
secured by the fundamental law,
it is the duty of the courts to so
adjudge & thereby give effect to
the Const.
Hadacheck v. Los Angeles -(bricking case) J. McKenna
**Standard for Arbitrariness- (singling out)

That court defined the police power as the “justification of prohibition of certain activities to
protect the health and comfort of the community.”

Facts: Hadacheck purchased land to manufacture bricks
prior to an ordinance being passed which makes it
unlawful for any person to establish/operate a brick yard
within described limits in the city. His land was more
valuable for brick-making; serve little economic purpose
in any other capacity
Issue: Taking of property w/o compensation and is the
ordinance invalid?
Holding: No, promoting a key public need. ∏ can use the
property for a different use.
move elsewhere.
Test for determining the valid exercise of police
power: Standard of Arbitrariness
-Property owner argues that it was arbitrary b/c they
singled him out among others who had the same
business. **Just b/c they got to him 1st, doesn’t mean
they won’t get to others.
-Distinguishes Reinman v. Little Rock(livery stable)
saying that Reinman could conduct business
elsewhere; Hadacheck says that he cannot move or
use for residential purposes.
-Hadacheck distinguished Reinman b/c he could not

 Ct. adopted a fulsome view of the state’s police power; displayed some sensitivity for the owner
in saying that it can have another use.
 Also, they did not prohibit the excavation of the clay, just prohibited the brick-making
 Presumption of Validity: Accord good faith to the city in the absence of a showing to
the contrary and an honest exercise of judgment upon the circumstance which induced
the action.
 Means vs Ends: The means of no bricking is rationally related to the ends of protecting the public;
not interfering w/ Legislature.
 ***In Hadacheck and Mugler: The cts pay no attention to effect on the property owner; just to
the statute.

 Defenses:
o No reason for the prohibition of the business
o Maintenance and use is not in the nature of a nuisance as defined in the Civil Code (and is thus
not dangerous or detrimental to the health, morals, or safety of the public.
o No complaint was ever made on the brewery.
o Sole purpose of annexing was for the specific purpose of prohibiting and suppressing
o Was the property owner singled out?
o Ordinance does not state a public offense and is in violation of the 14th Amendment.
o Business is lawful.
o Ordinance would foster a monopoly suppressing competition. (Just b/c they don’t get to
others who has same business, doesn’t meant they won’t)

**Is brick manufacturing per se a nuisance? A nuisance per se is noxious everywhere no matter where it is
located.
Miller v. Schoene-(cedar rust case) J. Stone (1928)

Facts: VA passes a statute which orders that any cedar  The ct had to make the choice b/t one class of
tree infected w/ cedar rust within a certain distance property and another and in this there was a
from an apple tree must be destroyed- they were judicial deference to the Legislature. Economic
considered a public nuisance. ∏ sues in violation of 14 th interest in apples trump cedar.
Amend.rights.  Are cedar trees noxious? No, neither are apple
Issue: Was D.P. violated by the ordinance? trees. The problem was their proximity.
Holding: The ct held that the reasonable exercise of state  Distinction: Preventing a public harm or creating
power controlled by considerations of social policy did a public benefit? Acting to prevent a public
not involve any denial of D.P. harm, gov’t doesn’t have to pay; if creating a
**Does NOT deal w/ the issue of public nuisance. public benefit the gov’t has to pay.
 The owner lost his right to exclude and right to
possess trees- lost some of his bundle of sticks.
o They are bestowing a private benefit to the apple owners. The distinction doesn’t work as well as
some judges claim it.
 Police Power Statement: As long as nuisance is being abated, even if there is a complete destruction of
property, no compensation is necessary.
 Where the public interest is involved, preference of that interest of property of the individual is one of the
distinguishing characteristics of police power which affects property.
 Residential trees still have ornamental value.
 Public nuisance? No. Did not affect health or safety.
 Alternative Outcome: What would happen had the Legis. not acted? The apple owners could have paid
the cedar growers to go out of business and would have a better outcome.

Mendez v. Fla. Dept. of Agriculture-(citrus canker case) ** This is a state

constitutional issue and applies ONLY in Florida. (2007)

Facts: ∆’s destroyed ∏’s exposed citrus trees, b/c they
were within 1900 feet of an infected citrus tree. Claimed
this inverse condemnation b/c the trees were physically
taken and destroyed; thus compensation.
Issue: Are the destruction of ∏’s exposed citrus trees a
taking under the Florida Constitution? Was the ∏’s trees
an imminent threat to public welfare or a public
nuisance?
Holding: Yes, there was a taking. No there was no
imminent harm presented by the trees, and was not a
nuisance. Thus, no valid exercise of state police power.
 Class action case: involved a class of ppl that
were similar and the ct has to police the
situation.
 Ct construed the Legis. scheme in the case as
employing a public benefit (not harm) b/c the
danger was not imminent.
 This case is distinguished from Miller in that
the ct ruled this was a regulatory taking and
the property owners are the one suing. The
gov’t did not take title of the land.

o This issue for the ct is that they couldn’t predict that an exposed tree would get infected.
o The ∏’s are not challenging the constitutionality of the program, they want just compensation in each
individual case.
 4th Amendment Problem- Search and seizure: There were mass search warrants issued.
IMPORTANT! -JUDICIAL DEFERENCE TO LEGISLATURE? No, In Mendez we do not see that kind of
deference. The ct did not simply defer to the Legis. declaring the cedar trees a public nuisance.
  What is the distinction between Miller and Mendez?
o Science was solid in Miller, question of whether the destroyed trees would ever become
infected was present in Mendez.

Hudson Co. Water v. McCarter- J. Holmes (1908)

 1st time the gov’t looks at the impact on the owner!

Facts: NJ enacted a statute making it unlawful for
anyone to transport or carry water from NJ from a body
of water into any other state for use therein. After
passage of the statute, the plaintiff made a contract with
NYC to furnish water to them. Plaintiff claimed statute
took his property (the pipe) without due process. Sues
for taking property without due process of water.
Issue: In depriving Hudson of rights to divert water to
NY, was due process violated? Does property owner
have rights to water?
Holding: No and no. Deference to the state: statute is
upheld. State has a longstanding interest to protect the
public, including the water, irrespective of disagreement
of private owners.
them.”
 Justice Holmes’ statement indicating his
willingness to depart from the standards in
employed in Mugler, Hadacheck, and Miller.
The 1st time Ct looks at impact on owner.
 REGULATION MAY GO TOO FAR! The court will
not always find that an action by a state
legislature will not constitute a taking. If it
burdens a property owner to such a degree, the
court will sometimes find that there was a
taking.
 Preservation of water for health and prosperity
of state. The state was a quasi-sovereign and
representative of public interest and has a
standing to protect the public.
 Individuals cannot remove their rights from the
police power “by making a contract about

Defenses:
 That the statute impairs contractual obligations
 Takes property without Due Process of law
 Interferes with interstate commerce
 Denies the privileges of NJ to citizens of other states.

 This is similar to Hadacheck b/c the property owners arbitrary argument is focusing on the statute
itself, in that the NJ statute is unconstitutional.
 J, Holmes key language: Police power may limit the height of a building w/o compensation; but if it
does so to the point that the building is wholly useless, then just compensation is due.
o There is a limit on Police Power; it cannot be exercise arbitrarily to make the land useless.

 Famous Holmes Quote from Hudson:

"The boundary at which the conflicting interests balance cannot be
determined by any general formula… For instance, the police power may
limit the height of buildings without compensation…But if it should
attempt to limit the height so far as to make an ordinary building useless,
the rights of the property owner would prevail over the public interest
 and the police power would fail. To set such a limit would need
compensation and the power of eminent domain"
Penn Coal v. Mahon – J. Holmes (1922)
 This case established the law of Takings. The significance of this case is that the state wasn’t a party: Big
problem that coal company was exploited. The Mahons represent PUBLIC INTEREST.
 Mugler is precedent; Holmes just ignored the precedent. Holmes didn’t like the un-thinking, knee-jerk
reactions in the law.

Facts: Facts: Kohler Act passed by PA legislature
forbidding the mining of anthracite coal in such a way
to prevent subsidence, among other things, of any
structure used as human habitation with certain
exceptions including among them: land where the
surface is owned by the owner of the underlying coal
and is distant for more than 150 ft from any improved
property belonging to any other person. Mahons own
surface but Penn owns right to remove all coal by
contract. Mahons sue PA Coal Company in order to
prevent them from mining under their property because
it would call this subsidence.
Issue: Can the police power be stretched “so far” as to
allow for the Kohler Act?
Purpose of the Kohler Act: It is not a public safety
measure b/c safety can be secured by less intrusive
means to accomplish it (i.e. Notice)
 Holmes is 2nd guessing the Legis. by saying
notice can secure safety. Succinctly stated
the purpose of the Act was the interest of
the property owner and had little to no
public purpose.
 - Defense against this: You cannot notify
ppl traversing the streets or lakes/roads.
Holding: Holmes wrote the majority opinion ruling that
the Kohler Act was a taking; required just
compensation. This is the first time we see a regulatory
taking that was labeled as such by the Court.
Opinion marks a shift in the law: Avg reciprocity of
advantage is absent from the statute: The property
owner get some benefit out of the regulation as well as
suffering the burden b/c the burden is also imposed on
his neighbors.
Example Doyle gave on avg recip: Doing this to someone
else’s property is helping me out although burdening
me.
surface is owned by the coal owner.
- Furthermore, it is not justified in the protection as person safety. That could be provided for by
 The Supreme Court’s decision in
Pennsylvania Coal v. Mahon is significant b/c
of its explicit recognition of the regulatory
takings doctrine as well as the first decision
to articulate and apply an ad hoc approach
to determining when a police regulation
should be regarded as a taking. The court’s
decision recognized that sometime’s a
police power regulation has an impact
functionally equivalent to an exercise of
eminent domain. (Cannot shortcut the
Takings Clause by using the police power to
achieve a result that should have been
accomplished by the use of eminent domain
power).
. “Government can hardly go on if to some extent
values incident to property could not be
diminished without paying for every such
change in the general law.”
 Holmes recognizes that some property
rights have to yield to the police power but
there are sometimes when the power goes
too far and unfairly burdens someone’s
property.
 Balancing test: Does the importance of the
police power being served by the regulation
outweigh the extent of the economic
burden imposed on the property owner?
***Cts will not be using this test anymore
Post-Lingle.
-the extent of the public interest is shown by
the statute to be limited since the statute
ordinarily does not apply to land when the
notice. (Mahons signed contract)
Factors to be examined:
1. Economic impact on the owner (extent of diminution)- J. Holmes characterized the extent of
the loss as “great” b/c the statute rendered the coal needed to support the surface of no
commercial value.
2. Whether the regulation served to prevent harm to the general public- J. Holmes concluded
that the statute did not have this effect, b/c subsidence damage to a single private house is not a
public nuisance, and any injury to 3rd parties could be avoided by providing notice of impending
mining activity.
3. Whether the ordinance confers an average reciprocity of advantage among all affected owners- the
statute appeared to confer a benefit on surface owners and a burden on owners of coal in place and could not
be said to secure an ARA among all affected property owners.
4. Ad-hoc Nature (designed for a particular purpose)
 Does improve the public harm mean prevent public harm? How can we predict anything if it is to a
degree?
 Strong desire to improve the public condition – not enough to warrant achieving desire by a shorter cut
than the constitutional way of paying for the change.
 Holmes trivializes the use of the police power by saying that it does not outweigh the economic extent
on the property owner.
o “This is the case of a single private house” (pebble on the gov’t side “the Act”) and noted that,
“the extent of the taking is great”. (boulder on the coal company)
 Not an exercise of police power when the right to mine is reserved by contract (Hudson County Water
case).
-Estates in land can nonetheless be separated by contract (Subsurface, Surface, Airspace). Mahons
signed the contract w/ the risks of acquiring only subsurface rights; and that risk becoming a danger
does not warrant giving them more than what they bought.

However, to prevent the mining would be the same as destroying or appropriating it. (Regulatory Taking).
o “Robbery under form of law”
o “The right to coal exists in the right to mine it”

 Under 5th and 14th: Penn Coal suffers the loss – Just Compensation is required.
o Not challenging the right to prevent damage; just requiring compensation.

Outcome: Penn Coal won because Mahon would have had to own the subsurface rights to win.

J. Brandeis Dissent:
-If the use is noxious; then the police power may
regulate it. Brandeis has a whole different concept
largely based on precedent.
-Deference- police power= wide & broad; bundle of
sticks does not include the right to public nuisance (not
in favor of balancing test)
-He says you must look at the property as a whole, you
cannot divide up the property and say regulation went
too far.
-Brandeis makes this a fight b/t Penn Legis. and the coal
company.
-Holmes makes it a fight b/t Mom & Pop store and the
coal company.
 Goal of statute is to protect the public safety
and health. The state action to prevent a
public nuisance is legitimate.
 (J. Brandeis says every time the gov’t
regulates a nuisance it is an average
reciprocity of advantage).
 “Sum of the rights of the parts cannot be
greater than the rights of the whole.”
 If Public safety is imperiled, no grant or
contract can prevail against the police power.
  Cites Hudson County Water: the fact that the regulation abrogated recognized rights of property was not
dispositive; “individuals cannot remove their rights from the police power by making a contract about
them”.
**The gov’t is not invading, taking title nor reducing economically viable use.
Keystone Bituminous Coal Ass. V. DeBenedictus – J. Stevens (1987)
 Public purpose is legitimate and the impact on the owner is not great. Contrasts Mugler,
Miller and Hadacheck in focusing on the impact on the owner.
 Zoning ordinances are comprehensive and also segregated uses. It does not treat every
similarly situated person the same so you can still get the “I was singled out argument.”

Facts: challenged statute prohibited all underground  Key to the opinion: Distinguished from Penn
mining that caused subsidence damage to surface Coal, b/c this case neatly exercises its police
structures and obligated mining companies to leave in power to prevent behavior that is
place for structural support at least half of the coal that tantamount to public nuisance.
underlay the protective structure.  The Kohler Act intended to prevent
Issue: Does the act constitute a taking and require just harm to a few ppl & the subsidence act
compensation? (Penn Coal) intended to protect more of the public.
Holding: The Act specifically says it is for the purpose of  The Subsidence Act was
protecting the public. *comprehensive:
**The legal significance is that it was the
anecdote of complaining that property
owners were singled out.
 The coal miners have to show the economic impact of this subsidence statute compared to other statutes.
J. Stevens says this is a big burden b/c they have to show that the statute makes it commercially
impossible to mine.
 Argument of the Coal Company: Taking the whole support estate and that should be considered
separately from the surface and mineral estate. That this is a taking of the all the bundle of sticks in the
support estates.
o Denominator Problem: Is it 100% of the 40-acre parcel land, or 25% of the 160 acres.
 J. Stevens distinguished Penn Coal: He keeps the balancing test, but allocates it differently (shrinks it).
1. The impact of the property is relative to how much coal they have left compared to the profitability.
2. The extent of the taking is not great.
o The decision is based on the whole value of the coal field, and not just the pillars. “Sum of the
parts cannot be greater than the rights of the whole.”

The Test
1. Public Purpose: Protection of Health, Safety, and General Welfare
2. Diminution of Value: Must look at Total Aggregate Value- ∏ have not shown any diminution
in value to satisfy heavy burden placed.
Compare value that has been taken from value that remains
3. Investment Backed Expectations
Keystone: Showing that Only 75% of the coal was minable in the first place.
The Support Estate
• Support Estate is separate from Mineral Estate or Surface Estate under Penn Law.
Consists of right to remove strata that under grid the surface – or leave those layers intact to
support the surface and prevent subsidence (two uses cannot exist).

Dissent (Rehnquist, J.).

What determines whether the gov’t has to pay is the impact/ burden on the individual property owner. If
they pay the property owner; then the Legislature can go on to regulate.
 J.Holmes: says that gov’t can hardly on if they had to pay to regulate BUT regulation can go too far.

Zoning

Euclid v. Ambler Realty Company (zoning ordinance to prohibit urban

sprawl)

Facts: ordinance adopted by Village to regulate **On the exam anything w/ a number requires
and restrict the location of trades, industries, at specific attention: $10,000 an acre industrial: $2,500
houses, 2 family houses and single family an acre residential. The property still has some value;
houses. ∏ was planning to sell land for it hasn’t lost total value.
industrial development, but considerable  City won this case b/c the assertion of the
amount of property zoned for residential. property owner that he lost ¾ of the value on the
Issue: Is the ordinance invalid in that it violates property.
the const’l protection “to the right of property in  This case looks like Mugler b/c the Ct doesn’t
the appellee by attempted regulations under the spend much time looking at the impact on
guise of the police power, which are property owner.
unreasonable and confiscatory? -Is it justifiable to segregate industrial uses from
Holding: No, upheld statute b/c it wanted to residential uses? It’s easier to administer
affect noxious uses of industry. Wanted to fire/safety, prevent disease, control traffics and
separate residential uses, Not going to scrutinize easier to pave roads.
each sentence of the zoning ordinance. Single  Highest Use- Single Family Residential. The
family home is highest level of zoning most zoning is cumulative and apts are not allowed in 2
protected. family home districts. J. Sutherland calls apts a
“mere parasite.”
Standard of Review the Ct uses: Provisions are not arbitrary and unreasonable b/c of substantial
relation to the public health.
 “It cannot be said that the ordinance in this respect “passes the bounds of reason and
assumes the character of a merely arbitrary fiat.” Not arbitrary
 The Fairly Debatable Standard: First Introduction of Substantive Due Process
Language in Takings

“A nuisance may be merely a right thing in a wrong place – like a pig in the parlor. If the validity of
legislative classification for zoning purposes be fairly debatable, the legislative judgment will be allowed
to control. “ Under this standard, courts will be very deferential to the Legislature.

Means to an Ends Test: If the means (zoning) adopted advances public health and safety
(ends).

**The Court did not address the Average reciprocity of advantage.

 “The inclusion of a reasonable margin to insure effective enforcement will not put
upon a law, otherwise valid, the stamp of invalidity.”
 The attack directed at ordinance in its entirety, thus did not need to apply to the
zoning board of appeals.
Nuisance: justifies exclusion of one residential use from another!

 Although there was no showing that the more restricted uses would inevitably create a
nuisance subject to abatement at common law, the Court sustained the scheme on the
ground that it was designed to minimize the incidence of future nuisances, and hence was a
legitimate exercise of the police power, not requiring payment of compensation.
Nectow v. City of Cambridge- the court took this case just to prove that
there are limits to Euclid v. Ambler Realty

Facts: Nectow sued to obtain a mandatory The Court held “that no practical use can be
injunction directing the City of Cambridge to issue a made of the land in question for residential
permit on his tract of land, w/o regard to its having purposes, because among other reasons herein
been zoned for residential purposes. Nectow related, there would not be an adequate return on
contracted to sell the tract of land for an industrial the amount of any investment for the
use even though his land was zoned primarily for development of the property.”
residential purposes -Districting in this case would not promote the
Issue: Did the ordinance deprive Nectow of his health, safety, convenience and general welfare of
property w/o d.p. of law? the inhabitants in the City.
Holding: Yes, zoning ordinance was unreasonable
and gov’t loses. The ends doesn’t justify the means Substantial Relations Test: The action “has
and the owner’s reasonable investment back no foundation in reason and is a mere
expectations are a side issue in this case. arbitrary or irrational exercise of power
having no substantial relation to public
health, morals or safety or the public welfare in its proper sense.
 The application of a general zoning law to a particular property effects a taking if the
ordinance does not substantially advance legitimate state interests.

 There was no deference to the legislature in this case.

o Why did the Court take this case? To show that there are limits to the police power,
that Euclid v. Ambler has limits.

THREE TYPES OF ZONING CASES:

1) Developer/Owner: Challenge zoning of developer/owner of property as too restrictive

2) Neighbor: Town has taken some action on neighboring parcel, neighbors are suing to prevent
development
3) Third-party non beneficiary case: (Big Box) Cases brought by parties who are excluded from the
town
Anti Big Box Regulation- You cannot cite to police power to economically protect local stores.

Penn Central Transportation v. City of New York- the decision most cited
today as providing the governing doctrinal structure for takings cases
where a categorical rule does not apply.
Facts: Grand Central Terminal was designated a
landmark under the New York City’s landmark
ordinance in 1967. Later, the terminal’s owners
sought approval to construct a 55 tower office tower
atop the terminal. The NYC landmarks Commission
denied approval.
Issue: Whether the application of NYC’s Landmarks
Preservation Law to the parcel of land occupied by
Grand Central Terminal has “taken” its owners’
property in violation of the 5th and 14th
Amendments?
Holding: No taking of property. The restrictions
imposed are substantially related to the promotion
of general welfare and not only permit reasonably
beneficial use of the landmark site but also afford
∏s opportunities further to enhance not only the
Terminal site but also other properties.
Significance: Air rights issue- they were
transferable to other structures, therefore
the Court did not imply a taking.
TDR- transferable development rights- if you
own property that is not completely
developed as allowed in the zoning, the
owner can transfer or sell the
development rights to a parcel where
they were not allowed to develop such a
structure.
Justice Brennan cited three factors as being
important in giving structure to ad-hoc inquiry:
1) The diminution in value of the property;
attributable to the challenged regulation- the
landmark regulation did not significantly
diminish the value of the company’s property

2) The extent to which the regulation interferes w/ the owner’s distinct investment-backed
expectations-b/c the historical use of the site had been as a station and b/c the company had not actually
invested any money in the construction above the station, the regulation did not interfere w/ the owner’s
“primary expectation” regarding the parcel.

3) The character of the government action- The majority rejected the argument that the building
prohibition was analogous to a physical invasion of airspace, and instead analogized the regulation to
run-of-the-mill, widely accepted zoning regulations; reasonably related to promotion of general welfare.
- Simply by showing that they could have been denied the ability to exploit a property interest
that they believed was available for development is untenable. (pg 130)

 Average Reciprocity of Advantage- Preservation of landmarks benefits all citizens and buildings both
economically and by improving the quality of life as a whole.
 Note Ripeness Issue: No appeal of zoning plan; owner had the right to appeal and submit an
alternative plan, but never did so.
 The property owner argues that he’s being singled out b/c the legislation applies only to
individuals who own selected properties. State argues: It is of course true that the Landmarks
Law has a more severe impact on some landowners than on others, but that in itself does not
mean that the law effects a “taking.”
 Important language: “Taking” jurisprudence does not divide a single parcel into discrete
segments and attempt to determine whether rights in a particular segment have been entirely
abrogated. Look at the extent on the parcel as a whole (bundle of sticks).
J. Rehnquist Dissent: 1) the City was not seeking to prohibit conduct “dangerous to the safety,
health, or welfare of others; rather it sought to provide a benefit in the form of preserving a
pleasing façade. 2) The law singled out a very small % of property owners in NYC for unique
burdens, and did not secure average reciprocity of advantage; 3) the regulation had the effect of
transferring a servitude to the city, which is a type of property right that is often acquired by
purchase or condemnation.
Loretto v. Teleprompter Manhattan CATV Corp.- J. Marshall (1982)
Bright Line Rule- permanent physical invasion constitute takings per se.
Facts: Teleprompter (∆) installed its cable television equipment on a building subsequently purchased by
Loretto (∏). The equipment was permanently fastened to the building and was placed there under
 authority of the previous owner and the state. Loretto sued, contending this constituted a “taking,” as
cable television served an important public interest. ∏ appealed summary judgment, and the ct of
appeals affirmed, upholding the constitutionality of the state statute granting permission to ∆.

Statute: Requires landowners to allow the installation of cable facilities on their property. Landlords
only needed to be compensated (a reasonable amt) $1 for allowing cable to be run in their buildings.

T. Ct used Penn Central Test: If it is a temporary physical invasion, then the balancing test applies ( Penn
Central).
 Can you argue that this was temporary? It only lasts as long as the statute lasts; and as long as
the building was used for residential purposes.

 Bright line rule: The character of the gov’t action is a permanent physical occupation of real property,
there is a taking to the extent of the occupation w/o regard to the public benefit.

Policy analysis: Permanent physical occupations are an especially demoralizing form of gov’t
interference because an “owner suffers a special kind of injury when a stranger directly invades and
occupies the owner’s property.”

**Bundle of sticks matter only if temporary:

The gov’t does not simply take a single “strand” from the “bundle” of property rights: it chops through the
bundle, taking a slice of every strand:
1. Right to possess: The owner has no right to possess the occupied space himself
 power to exclude: No right to exclude others from possession and use
2. Right to control use: permanent physical occupation forever denies the power to control the use
3. Right to dispose: will ordinarily empty the right of any value since the purchaser will also be
unable to make any use of the property.

Benefits of a per se rule: Clarity and predictability if everyone knows where they stand
Cons to a per se rule: Blackmun (dissent) says that property owners will try to “shoe-horn” their way into the
bright-line rule.

Justice Blackmun’s dissent:

3 problematic distinctions with this bright-line rule:
1. Distinction b/t a temporary and physical occupation is nowhere defined in this
opinion. How long an occupation must continue to qualify as “permanent?”
2. Distinction b/t a gov’t mandated occupation of property by 3 rd parties (a taking) and
use regulations that functionally achieve the same result (not a taking)
 The implication is that NY could have avoided the categorical rule by requiring
the landlord to purchase and install the cable herself (similar to apple trees &
cedar trees)
3. Distinction b/t “voluntary” (invited presences) and “involuntary” (uninvited
presences).
 Constitutional protection for the rights of private property cannot be made to depend on the size of
area permanently occupied.
 A ct should consider the extent of the occupation as one relevant factor in determining compensation

Agins v. City of Tiburon- J. Powell (unanimous ct) (1980)

“Substantially Advances Test”
 Facts: Appellants have acquired five acres of unimproved land for residential development, the city required
by California law to prepare a general plan governing land use and the development of open-space
land. City adopted zoning ordinances in which property may be devoted to one-family dwellings,
accessory buildings, and open-space uses, with restrictions permitting appellants to build b/t one and
five single family residences on their tract. W/o having sought approval for development, appellants
brought suit against the city alleging a taking of their property w/o just compensation and a
declaration that the zoning ordinances were facially unconstitutional.

Inverse condemnation claim: A landowners who challenges the constitutionally of a zoning ordinance may not
sue in inverse condemnation and thereby transmute an excessive use of the police power into a
lawful taking for which compensation must be paid.”
o cannot transform an invalid use of the police power into a valid taking

Agins standard: Application of general zoning law to a particular property is a taking if (1) it does not
substantially advance legitimate state interest or (2) denies owner of economically viable use of his
land.  The court explicitly and directly lays down substantive language.

1. Substantially advances legitimate state interest:

a. The specific zoning regulation at issue are exercises of the city’s police power to protect the
residents of Tiburon from the ill effects of urbanization.
2. Denies owner of economically viable use:
a. Not deprived of all economically viable use of home, still had single family home use,

Here, ordinance substantially advances government's goal

. To discourage premature and unnecessary conversion of open-space land to urban uses.
 REMEMBER THIS TEST WILL BE OVER-RULED IN LINGLE
 ALTHOUGH S.A. TEST WAS NEVER USED TO DETERMINE A TAKING
 LINGLE: RECOGNIZES ITS EXISTENCE ONLY IN THE WORLD OF DUE PROCESS CHALLENGES

Lucas v. South Carolina Coastal Council –J. Scalia (1992)

Categorical Rule Denying all economically viable use= taking!

Facts: Lucas owned two beachfront lots that were subject to post-acquisition restrictions on development
contained in the South Carolina Beachfront Management Act. Lucas purchased the property in order
 to build a residential development. At the time of purchase, the land was not subject to use
regulations. Two years later, the South Carolina legislature passed the Beachfront Management Act
(1988) that made it illegal to erect any permanent habitable structures. Lucas filed suit, claiming that
the law constituted a taking of his property without just compensation. The trial court held that the
restrictions rendered the lot “valueless”.
 The Supreme Court of South Carolina reversed, saying that the statute served a protected a valuable
public resource and therefore no compensation was required by the Fifth Amendment. Cited
Mugler v. Kansas in that regulation was designed to prevent "harmful or noxious" use. (App. Ct.
Dissent: said that the primary purpose of the Act was the creation of habitat for flora and fauna, not
abatement of nuisance).
Holding: The Court says that in order for South Carolina to prevail on remand, it must show that common law
principles of nuisance and property forbid the intended use of the land. The Act deprived Lucas of
all economically beneficial use and restricted uses which were previously permissible.

The Act was a legitimate exercise of the police powers and Lucas did not challenge this issue.

Ripeness issue:
Special permits were allowed which relaxed the 1988 statute. B/c of this amendment, Lucas’s claim of
permanent deprivation is unripe. (he may still be able to secure permission).
o Sup Ct had jurisdiction but it’s the prudential standard for judicial restraint. Don’t
decide const’l issues until the facts are ripe.
o Constitution is our foundational wall & its significant is the Sup Ct. interprets a case
relating as precedent. The precedent that can change based on facts is a weak
precedent.

Another categorical rule:

When the state deprives a property owner of 100% of the economic value of their land for some
public purpose, it is a compensable taking unless:

Exception to the rule: the use that is being taken away was never part of the title to the
land in the first place. For example, it’s not a taking to deprive the owner of the right to
create a nuisance on their land, because that wasn’t part of their property rights anyway.
[e.g. building nuke-plant on quake-fault]
o Justice Scalia doesn’t want state/ local legislature to trigger the exception to his
bright-line rule by just calling it a nuisance. It would have always had to be a nuisance
in the past.
o Hadacheck: Gov’t has to be free to respond to new learning (scientific discoveries)
in reference to it having to always be a nuisance.

There are two clear-cut cases that do not need ad-hoc inquiry:
1. Physical occupation of private property (Loretto)
2. Denial of all economically viable use of private property.

J. Blackmun’s dissent:
“Today the court launches a missile to kill a mouse.”
-The missile has 2 components: The new categorical rule and the exception (unless the prohibited
uses are common law nuisances. The target is just a mouse b/c rarely will regulatory programs wipe
out value altogether.
o There is uncertainty as to what Lucan can build w/ the 1990 Amendment. We don’t know a regulation
has gone too far until we know how far it’s gone.
o Under the 1988 Act: Lucas was able to challenge the location of his property but hadn’t done so.
Maybe they would have exempted his property from the total ban. (1042-1043).
 1. Finding that the land is valueless is implausible b/c there is still recreational use on the
land. Counterargument: is recreational use economically viable use?
 Right to exclude others (most essential stick)
 Picnic
 Swim
 Camp
 Or live in a mobile home…
 Right to alienate land ---
 May be valuable to neighbors to expand their beachfront property

J. Steven’s dissent:
o The owner who is diminished by 95% recovers nothing (although under Penn Central rule, may be
able to recover) but the owner who is diminished 100% recovers all value.
o Arbitrariness of the rule: If neighbors house were destroyed by a hurricane, they would not be able
to rebuild nor recover. Lucas (who has lost the opportunity to build) recovers.

Problems with the rule:

 Denominator Problem: How much of the property do you look at?
o What is economically viable use? Is the rule intended to apply to true deprivations of all market
value, or would the rule be triggered by prohibiting all development of land?
 Nuisance exception: Exception is not big enough for the rule. It’s a “one-use” exception (ex: pig-rendering
factory) applied to a flat rule.
o Is it still a categorical rule w/ the exception?
 Is it still a total taking when it is limited to a 2 yr taking? The ct doesn’t distinguish b/t permanent and
physical as they did in Loretto.

J. Souter’s statement: Ct shouldn’t have granted certiorari. There is no review of T. Ct decision that this is a total
wipeout. Ct took the case based on assumption that the state deprived the owner of entire economic interest.

Exactions- “Quid pro Quo”

 In an exaction, the government grants permission for development, but only if, in
return, the owner agrees to donate certain property or money to the government .
1. total prohibition on the project would be unconstitutional
 2. condition imposed would be unconstitutional if done outside the exaction
context
 The doctrinal innovations of these decisions are confined to the special case of exactions
and do not apply to challenges to direct regulation.
 Exactions fall within the general pattern of gov’t conduct covered by the
unconstitutional conditions doctrine-which says that the state may not condition the
availability of some discretionary benefit on an agreement by the recipient o waive or
forgo a constitutional right:
(1) A landowner seeks a gov’t benefit—amendment of the zoning code or issuance of a special
use permit—that the gov’t has broad discretion either to grant or deny.
(2) The gov’t conditions the receipt of this benefit on an agreement by the landowner to transfer
certain property to the gov’t
(3) If the gov’t were to appropriate the property directly from the landowner, the Takings Clause
would require the payment of just compensation.
Thus, these exactions represent an attempt to condition the receipt of a discretionary gov’t benefit
on a waiver of a const’l right, the right to just compensation.

Nollan v. California Coastal Commission- J. Scalia (1987)

**Essential Nexus Test

Facts: The Nollans owned a beachfront lot in Ventura, Calif. on which sat a dilapidated bungalow that the
Nollans wanted to demolish and replace w/ a larger house. Under CA law, the redevelopment project
required a permit subject to the condition that the Nollans grant an easement allowing the public
lateral access across the private portion of the beach behind their house.
o Commission found that new house would increase blockage of ocean view and prevent public
from “psychologically” realizing that a stretch of coast line existed.
o Commission argues that permit condition that serves same purpose of police power as a refusal
to issue that permit should not effect a taking if refusal of the permit wouldn’t.

Holding: If California wants an easement, it must uses its police power through eminent domain and pay for it.

Rule: A “permanent physical occupation” constitutes a compensable taking, and requiring such an
occupation as a condition for a building permit also must be compensated in order to be
constitutional.

Essential Nexus Test: It is not constitutional if condition substituted for the prohibition fails to further the
end advances as justification for the prohibition. (the lack of nexus b/t the condition and the
original purpose of the building restriction converts that purpose into something other than what it
was.
- Unless the permit condition serves the same governmental purpose as the development
ban, the building restriction is not a valid regulation of land use but “an out and out plan
of extortion.”
- It is quite impossible to understand how a requirement that people already on the
beaches be able to walk across the Nollan’s property reduces any obstacles to viewing
the beach created by the new house & impossible to understand how it lowers any
psychological barriers.
- When the essential nexus is eliminated, the situation becomes the same as if CA law
forbade shouting fire in a crowded theater, but granted dispensations to those willing to
contribute $100 to the state treasury
**Adding an unrelated condition alters the purpose to one which is inadequate to sustain the ban. (adding
unrelated condition of easement to the building of a house)

 They were able to ban the building of a new house altogether. What’s the problem if they allow
Nollan’s to build w/ a condition of the easement?
 A vertical access would have been const’l b/c it satisfies the nexus problem in connecting the road to
the beach although it poses a huge burden on the property owner. This case was about lateral
access!

Some other points to take away from Nollan:

o Right to exclude others (most essential stick in the bundle of rights)
o Easement= permanent and continuous right to traverse property physical occupation

J. Brennan’s Dissent:

 Claims that majority struck down reasonable effort to respond to development on coast line - and
landowners never showed that their reasonable expectations were even disrupted.
  
"To make scientific precision a criterion of constitutional power would be to subject the State to an intolerable
supervision hostile to the basic principles of our government.
 Cf. Keystone Bituminous Coal (Takings clause has never been read to require the States or the courts to
calculate whether a specific individual has suffered burdens…in excess of the benefits received"
 
Cites legislative deference "conclusions [of the legislature] should not be disturbed by the courts unless clearly
arbitrary and unreasonable"
 Legislature is better qualified to determine necessity, character, and degree of regulation.
 
Commission sought to provide "public access to the coast for recreation purposes"
Sought to balance private and public interests and to accept tradeoffs: to permit development that reduces access
as long as other means of access are enhanced.
 
- Decreased visual access created an Impression that beach is not public.
Would allow it easement-- because "if people driving by can see numerous people passing and re-passing along the
dry sand, this conveys the message that the beach is open for public use"…
 
- Increase in private use of the shorefront --- would burden public ability
Public may get the impression that beach is no longer public: "due to the encroaching nature of private use
immediately adjacent to the public use as well as the visual block of increased residential build-out.

 
Penn Central Test:
The fact that action is legitimate use of police power does not insulate it from takings claim
"Regulation goes too far it will be recognized as a taking"
 
Brennan would look at:
1. Nature of government action
2. Economic impact of the regulation
i. Esp. in regards to investment backed expectations.

1. Character: imposition of conditional permit which allows public access

1. Physical intrusion is minimal.
2. Public is permitted to pass and re-pass
 3. Area is only 10ft which means that even without the permit condition, the public's right of access
permits it to pass within a few feet of the seawall.
4. Not unilateral gov't action, but condition on approval of development request submitted by
appellants.
5. State has not sought to interfere with any pre-existing property interest

2. Economic Impact:

 Concludes no taking here because of Average Reciprocity of Advantage

a. Development Increases value of property, not diminishes
b. Allowing intense development in exchange for right of access to beach.
c. Appellants benefit as private landowners and as members of the public
 
Commission sought to strike a balance between private development and public access
 Provision is reasonable
NO takings claim because No disruption of expectation interest. No right to exclude the public under state law.
And even if they did, they had full advance notice that development is conditional.

Dolan v. City of Tigard -J. Rehnquist (1994)

Facts: Dolan owned a store and applied for a permit to expand the store and pave over the parking lot. The permit
was granted with the condition that she cede to the city a strip of land along a creek running through the property,
to be used as a floodplain and the site for a public bicycle path.

The majority acknowledged that there was a nexus b/t both uses of the exaction and anticipated harms associated
w/ the redeveloped store and new parking lot.
 The paving over of a larger % would exacerbate flooding of the creek, and the vehicles that would be
drawn to the enlarged store and parking lot would increase congestion in the downtown area.

Holding: The Ct found the exaction constitutionally impermissible, however, b/c the city had failed to quantify how
much flooding would be prevented or how many car trips otherwise attributable to the new development would
be avoided by the dedication of the bike path.

Furthermore, the Court held that the requirement for a public greenway (as opposed to a private one, to which
Dolan would retain other rights of property owners, such as the right of exclusive access), was excessive, and that
the City failed to meet its burden of establishing that the proposed pathway was necessary to offset the increased
traffic which would be caused by the proposed expansion.

 City has burden to prove that there was, some individualized basis that they determined that the
driveway would increase runoff and the greenway would alleviate that runoff. [Same with Traffic /
Bike-path]

Rough proportionality test: To be constitutional, a development condition must have a nexus to the anticipated
harms resulting from the development and be roughly proportional. The City must make some individualized
determination that the required dedication is related both in nature and extent to the impact of the proposed
development.

 Only if proposed development had somehow encroached on existing greenway space, it would
have been reasonable to require petitioner to provide alternative greenway.
Palazzolo v. Rhode Island-J. Kennedy (2001)

Facts: ∏ filed an inverse condemnation action asserting that the Council had taken his property w/o just
compensation. The suit alleged deprivation of “all economically viable use” (Lucas)

1959- SGI company first buys property

 1971- RI state commission is created and enacts legislation designating salt marshes as protected “coastal
wetlands”
1978- SGI’s corporate charter is revoked and ∏ owns property
1983-∏ submits app and it gets rejected for being too vague
1985- submits another app to build a private beach club and this app is rejected

Under the agency’s regulations, a landowner wishing to fill a salt marsh needed a “special exception,” and to
secure a “special exception,” the proposed activity must serve a “compelling public purpose which provides
benefits to the public as a whole as opposed to individual or private interests.

3 issues in this case:

1. Ripeness: the court needs to know the final decision of the extent of the permitted development.
Regulation cant go too far unless you know how far it goes. The land owner first has to follow
reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in
considering development plans for the property.
 The ct stated it was ripe b/c they were looking at the regulation imposed . ∏ could never
be able to fill b/c his plan was not for a compelling public purpose.
- Where the stat agency entertains an application from an owner and its denial of the
application makes clear the extent of development permitted, federal ripeness rules do not
require the submission of further and futile applications w/ other agencies.
 ∏ accused of playing a “hide the ball” game of submitting applications for more modest
uses to the Council, only to assert later a takings action predicated on the purported
inability to build a much larger project.
2. Post-regulation acquisition: “the state may not put so potent a Hobbesian stick into the Lockean
bundle.”
 A state would be allowed to put an expiration date on the Takings Clause if post-
enactment transfer of title would absolve the state of its obligation to defend any action
restricting land use.
 Future generations, too, have a right to challenge unreasonable limitations on the use
and value of land.

Arguments for post-regulation acquisition:

1. the restriction might trigger the exception to Lucas- regulation was already on his
property when he bought it, wasn’t in his bundle to begin w/
2. might defeat a Penn Central taking b/c he already knew of the regulation, thus having
no reasonable investment backed expectations.
3. It might also hurt standing to get just compensation if ∏ does not own the property at
the time of the taking, the award does not go to ∏ b/c right to compensation is not
passed to a subsequent purchaser. Bundle of sticks did not include the right to develop
property.

3. Merits: It is held that all economically beneficial use is not deprived b/c the uplands portion of
the property can still be improved. He retains a $200,000 value.
 Denominator problem:∏ asserts that his upland parcel is distinct from the wetland
portions, so he should be permitted to assert a deprivation limited to the latter. The ct
did not address this issue b/c he did not bring it up in the state cts.
Lingle v. Chevron- J. O’Connor (2005)
Facts: The Hawaii Legislature enacted an Act in response to concerns about the effects of market concentration on
the retail gas prices. It seeks to protect independent dealers by imposing certain restrictions on the ownership and
leasing of service stations by oil companies.
  It prohibits oil company from converting existing lessee-dealer stations to company operated
stations in close proximity to existing dealer-operated stations
 It limits the amt of rent that an oil company may charge a lessee-dealer
Chevron sued the Governor and AG of Hawaii claiming that the statute on its face effected a taking of Chevron’s
property. He argued that the rent cap does not substantially advance any legitimate government interest.

 Overturns Agins “substantially advances” test: This formula was derived from due process, not takings
precedents. The “substantially advances” formula suggests a mean-ends test: It asks whether a regulation
of private property is effective in achieving some legitimate public purpose.
o Chevron’s arguments go against their interests.
 Such a test is not valid in discerning whether private property has been “taken” for purposes of the 5 th
Amend. (Takings Clause)

o This inquiry reveals nothing about the magnitude or character of the burden a particular
regulation imposes upon private property rights. (economic impact)
- The burden on the property owner has to be so severe that it is like a physical taking. “

o Nor does it provide any information about how any regulatory burden is distributed among
property owners (average reciprocity of advantage).

 Why does the Ct repudiate Substantive D.P. for the purpose of a taking? Deference to the Legislature
o It would require cts to scrutinize the efficacy of a vast array of state and federal regulations—a
task for which cts are not well suited. It would empower cts to substitute their predictive
judgments for those of elected legislatures and expert agencies.

- Does this case help property owners or the gov’t? It helps the gov’t b/c it takes the whole
efficacy issue and shifts the burden to property owners while deferring to legislatures.

**How does O’Connor address the Nollan and Dolan cases? She distinguishes them; they both involved
dedications to property so onerous that, outside the exactions context, they would be deemed per se
physical takings. In neither case did the Ct question whether the exaction would substantially advance
some legitimate state interest. Rather, the issue was whether the exactions substantially advanced the
same interests that land-use authorities asserted would allow them to deny the permit altogether.

IF CHEVRON WANTED TO CHALLENGE IT CAN USE ONLY:

 
 1. Lucas - Total Taking
 2. Penn Central ad-hoc factual inquiry
 3. Land-Use Exaction violating Nollan and Dolan

Goldblatt v. Town of Hempstead

Facts: ∏ owned 38-acre tract on which he had been mining sand and gravel since 1927. During the first year
of activity, the mining reached the water table, leaving a water-filled crater, which had since been
widened and deepened until it became a 20-acre lake, 25 feet deep. The Town had expanded to a
point where it grew very close to lake. There were 2,200 homes and four public schools in the area.
 There were 4,500 children enrolled in the public schools. In 1958, the Town amended its ordinance,
which regulated excavations, so as to prohibit any excavating below the water table.

 Whether the excavation below the water table is a valid exercise of the state’s police power:
a. public interest
b. means-ends test: means are reasonably necessary for the accomplishment of the purpose and
are not unduly oppressive on individuals.

 The ordinance was passed as a safety measure, and to evaluate its reasonableness we need to
know:
1. the nature of the menace against which it will protect
2. the availability and effectiveness of other less drastic protective steps
3. the loss which appellants will suffer from its imposition

 The burden of “reasonableness” is on the appellants, the burden was not met so the prohibition must
stand as a valid police power regulation.

 The legislation did not disturb the owner in the control or use of his property for lawful purposes, nor
restrict his right to dispose of it. Declared to be injurious to health, morals and safety of the
community.

 If this ordinance is otherwise a valid exercise of the town’s police powers, the fact that it deprives the
property owner of its most beneficial use does not render it unconstitutional.

 The Court upheld the ordinance against a takings challenge, although the ordinance prohibited the
present and presumably most beneficial use of the property and had (like Mugler and Hadacheck)
severely affected a particular owner. The court felt that Owner made no showing of an adverse affect on
the value of the land. Must be specific in dollars or other objective standards!

Uses Substantial Public Purpose Test: (Means-End Analysis)

 Use restriction on real property may constitute a taking if not reasonably necessary to the effectuation of
a substantial public purpose or if it has an unduly harsh impact upon the owner’s use of the property.
Notes:
 Goldblatt's argument: He said the prohibition confiscated his business, not regulatory (Mugler and
Hadacheck). He said it cant be justified as a safety measure b/c the lake is already 25 feet deep.
o The Judge starts out w/ Mugler- pg 593
 Engaged in the balancing test- "cannot be so onerous as to constitute a taking"
 On the gov't he side he says the prohibition is a reasonable exercise of the police power
 Means ends test- pg 594 which the cts repudiated after this case
o The town has not justified its police power on the practice of safety and the property owner has
not justified the economic impact. There is no evidence on either side so the gov't wins
 This case is sited 16 times in Penn Central and is a puzzlement b/c there is not much in this case

Stop the Beach Re-Nourishment Notes

 New sand becomes public beach b/c the state funded the project to do so
 Plaintiffs arguments: arguing a taking of their littoral rights. Lost the right to touch
the water.
  State arguing that the rights to touch the water was ancillary and this was done for a
public purpose.
 The Florida dist ct held that it was a taking depriving property owners of their
right to maintain contact w/ the water and their right to accretion (the
gradual accumulation of land by natural forces)
 Look up the district cts opinion on westlaw or lexisnexis
 Fla Sup Ct held that it wasn’t a taking- reversed the lower ct order-w/o the re-
nourishment the public would lose vital and economic resources. It protects
the upland owners property from erosion and preserves littoral rights access
to use and view. Consequently, it facially achieves the balance of rights to
uniquely valuable property interests.
 The property owners are being burdened but they are also receiving a
benefit. The gov't is arguing that this wasn’t a taking.
 "Facial" is challenging the statute itself. "As applied" means the statute itself
is okay, but when applied to this specific case, it is unconstitutional.

- To declare a statute facially unconstitutional means that no set of circumstances exists under which
the statute would be valid

(1) States Interest on behalf of relation to Florida’s beaches

- The trust in which the title to the lands under navigable waters is held is governmental in nature and
cannot be wholly alienated by the states.
- The states may by appropriate means grant to individuals limited privileges in the lands under
navigable waters, but not so as to divert them or the waters thereon from their proper uses for the
public welfare, or so as to relieve the states respectively of the control and regulation of the uses
afforded by the land and the waters.

(2) The Upland Owners interests and rights

- private upland owners hold the bathing, fishing, and navigation rights described above in common
w/ the public. (upland owners have no rights superior to other members in regards to these)
-Upland owners hold exclusive common law littoral rights
(1) the right to have access to the water
(2) the right to reasonably use the water
(3) the right to accretion and reliction
(4) the right to the unobstructed view of the water
-These littoral rights cannot be taken from upland owners w/o just compensation
- The right to accretion and reliction is contingent, future interest that only becomes a possessory
interest if and when land is added to the upland by accretion or reliction.

(3) Dealing w/ a dynamic boundary

- The boundary b/t the public or sovereignty lands and private uplands is dynamic boundary, which is
located on a shoreline that, by its very nature, frequently changes.
-Pg 17 definitions of erosion, accretion, reliction and avulsion
-The boundary b/t public and private lands is the MHWL, which represents an avg over a 19yr period
-Under the doctrines of erosion, reliction, and accretion, the boundary is altered to reflect gradual
and imperceptible losses or additions to the shoreline.
- Under the doctrine of avulsion, the boundary line remains the MWHL as it existed before the
avulsive event led to sudden and perceptible losses or additions to the shorelines.

B. The Beach and Shore Preservation Act’s balancing of public and private interests
- The Act promotes the public’s economic, ecological, recreational, and aesthetic interests in the
shoreline.
- The Act also benefits private upland owners by restoring beach already lost and by protecting their
property from future storm damage and erosion.
- Pg 23- At least facially, there is no material or substantial impairment of these littoral rights under
the Act.
- The Act provides for the cancellation of the ECL if (1) the beach restoration is not commenced
within two years; (2) restoration is halted in excess of a six month period; or (3) the authorities do
not maintain the restored beach.
- W/o the beach renourishment provided for under the Act, the public would lose vital economic and
natural resources. As for the upland owners, the beach renourishment protects their property from
future storm damage and erosion while preserving their littoral rights to access, use, and view.

C. First District’s Opinion

- Pg 25- has the cts holdings and why they found it facially unconstitutional.
- Failed to consider the Doctrine of Avulsion which is pivotal b/c the public has the right to reclaim its
land lost by an avulsive event.
(1) Avulsion
- In the context of restoring storm-ravaged public lands, the State would not be doing anything
under the Act that it would not be entitled to accomplish under Florida’s common law, thus the Act is
facially constitutional.
(2) Common Law Right to Accretion
- Right to Accretion is a contingent right that arises from a rule of convenience intended to balance
public and private interests by automatically allocation small amounts of gradually accreted lands to
the upland owner w/o resort to legal proceedings and w/o disturbing upland owner’s rights to access
and use of the water.
-Pg 31 addresses the reasons the renourishment is more than de minimis.
(3) Contact is Ancillary to the Littoral Right of Access
- There is no independent right of contact w/ the water. Contact is ancillary to littoral right of access.
- In this case, the Act expressly protects the right of access to the water, which is the sole
justification for the subsidiary right of contact.
-Facially, these provisions ensure the upland owner’s access to the water remains intact. Therefore,
the ancillary right to contact is satisfied.
- There is no littoral right to a seaward boundary at the water’s edge in Florida. B/c the Act
safeguards access and b/c there is no right to maintain a constant boundary w/ the water’s edge, the
Act, on its face is constitutional.

J. Wells Dissent: The Act can be saved by the payment of just compensation but cannot be
constitutionally applied w/o it.

J. Lewis Dissent: By essential definition, riparian and littoral property is that which is contiguous to,
abuts, borders, adjoins, or touches water. (Majority is incorrect w/ it’s ancillary concept)
Notes on the STBR Hearing

=Why isn’t this an avulsion?

- No caselaw in Florida that says avulsion can occur by artificial means

=You didn’t lose anything, all you lost was the right to touch the water. But the Ct here says you in
effect have the right b/c you can walk right over it and get to the water.

=Florida common law: J. Scalia- It would be very strange to have a principal that all the littoral owner
gets is a right to access the water and not the right to be on the water, have his property be on the
water.

=Can he exclude from the additional 60 ft?

=Spring breakers coming through- would have a negative effect on the value of the property

-Makar answers that they don’t have a right begs the question

-Substantial impairment is the view in Florida

-Judicial taking b/c they said they never had the right to touch the water in the first place.

- Kneedler- there is a doctrine that when the state fills its own land, it becomes its own land

- Martin v. Busch: a sudden, dramatic action by the State

- Safriet mentions dealing w/ a physical taking which was dropped out at the administrative hearing

-The state is claiming title to the New Beach that they out in and the landowners owned what they
owned as of September 7, 2003.