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Law School Outline - Property II Wiseman

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					Property II Outline Professor Wiseman Spring 1999 I. Nuisances A.Theories 1.Economists think that judges unknowingly reach the result economists would dictate; ie. The least cost solution 2.Competing theory - justice/fairness - responsible party should be liable. May not be the most efficient result and may not be the least cost solution. B.Nuisance Rationale 1.Zoning is based on nuisance rationale 2.Zoning is constitutional based on Nuisance theory 3.Trespass vs Nuisance a)Trespass interferes with the property right to exclude. No harm has to be shown; it is a physical invasion b)Nuisance is a substantial interference with the right to use; you don’t need a physical invasion but you do have to have harm A. Private Nuisances 1. Per se – a. always a nuisance based on illegal use (not a universal requirement) b. intent is almost irrelavant 2. per accidens a. intentional/or unreasonable result of negligent, reckless, or abnormally dangerous activity b. substantially interferes with use and enjoyment c. lawful use B. Public Nuisances 4.An otherwise lawful activity that interferes with the public at large 5.Does not interfere with the public’s land use 6.Discomforts the public at large. May be detrimental to public’s health, safety, welfare 7.If it’s a public nuisance, it will almost certainly be a private nuisance. 8.You only have to intend to do what you are doing; don’t have to intend the harm

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9.An act that interferes with general community interests or the comfort of the public at large - air pollution, loud noises, houses of prostitution, etc. 10.Intentional and unreasonable conduct (or unintentional negligent, reckless, or ultrahazardous conduct) which causes substantial harm 11.A public official, usually an attorney general, brings actions for public nuisances 12.A private individual may bring a public nuisance action only if he demonstrates specific injury to his property that is unique from the injury suffered by the public at large C.Remedies 1.Equitable Relief: Enjoinment/ Injunction 2.Damages to Injured Party a)Such an award reflects the court’s belief that the nuisance will not or should not abate - a policy decision after applying the balancing test b)Cts may award damages for past and/or potential harms, or award damages to the injured party until the nuisance subsides. c)Ct may grant injured party’s injunction, but demand indemnification - require the injured party to pay ’s costs to shut down or move its facility 3.Law and Equity a)If there is an adequate legal remedy, cannot get an equitable remedy b)Remedy you get depends on the facts you prove. c)Damages for breach of restrictive covenant is generally not as adequate as an injunction D.Nuisance Analysis 1.Liability Stage a)Intention + unreasonable act which interferes substantially with ’s use and enjoyment (1)Traditional Test (Morgan) (a)Look at reasonableness of ’s actions from the ’s point of view, but do this objectively. (b)Would a reasonable  consider this interference unreasonable? (2)Modern Test (a)Social Utility Test

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(i)Examines the unreasonableness of ’s actions and then balances the social utility of the ’s conduct with harm to  (ii)If the  outweighs the , then the case is over. s conduct is not unreasonable (iii)If  outweighs , then  gets damages, but no injunction (3)Doctrine that will look at ’s use to see if it is abnormally sensitive (Drive inn, amusement park case) 2.Remedy Stage a)Traditional Test (1)If a nuisance has been found (and there is substantial damage), then  gets temporary damages and an injunction b)Boomer (1)Permanent damages are granted, but not an injunction when ’s loss is small compared to the removal of a nuisance c)Balancing of the Equities (1)Done at the remedy state (2)Generally, an available defense to an injunction. NOT a defense to a legal remedy (3)Balance the equities to see if the injunction should be granted (4)Ct weights the injury which would result to  and public if the injunction is granted against injury to be sustained by  if the injunction is denied. (5)If  outweighs ,  will not get an injunction but will get monetary damages (a)Estancias court says s conduct has to be strictly necessary in order to even do this test. In that case, an AC unit is not strictly necessary. Court like this would just grant the injunction d)Four Possible Remedies  Ct should choose efficient and fair remedy and the least cost solution (1)Injunction at ’s expense (typical)

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(2)Damages at ’s expense (3)No remedy at all (4)Injunction at ’s expense (Del Webb) E.Lateral Support 1.Basically holds up the neighbor’s property 2.Imposes a duty on neighboring land to provide support that the subject parcel would need and receive under natural conditions. 3.The right of lateral support can be waived or expressly expanded F.Subjacent Support 1.Issues arise when one person owns surface rights and another person owns some kind of subsurface rights such as mineral interests. G.5 Cases 1.Morgan v. High Penn Oil Co. a)Facts -  owns land with house, restaurant, 32 trailers.  operates an oil refinery at all times and emits noxious gases and odors in great quantities on certain days of the week. argued that the oil refinery was a lawful enterprise and therefore not a nuisance per se. Ct found that the operation of the oil refinery was intentional and unreasonable in causing noxious gases/ odors and impaired the use of ’s land. An injunction is necessary to protect  against injury. b)Rule - Every person should use his property as not to injure that of another. Should not invade a person’s interest in the use an enjoyment of their land. c)Rule - A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury d)NOTE: Coming to the nuisance is not an absolute defense, but it is a relevant factor in determining liability 2.Estancias Dallas Corp. v. Schultz a)Facts -  brought suit asking that  be permanently enjoined from operating AC equipment and tower on the property next to his residence. Ct found that the unit sounds like a jet airplane. Could have 4

used separate AC units that would have cost $40K more than what they spent. To redo now costs $150K-$200K. s are entitled to an injunction. b)Note: Parties can always later bargain whether an injunction will be enforced 3.Boomer v. Atlantic Cement Co. a)Facts -  operates a large cement plant. Neighbors allege injury to property from dirt, smoke, and vibration emanating from the plant. The ct stated that it could not effectively eliminate air pollution through this case. Here, the damages are relatively small compared to the value of s operation and the consequences of an injunction. As an alternative, could grant an injunction but postpone the effect to a future date to give an opportunity for technical advance to come about. Could grant an injunction conditioned on payment of permanent damages to s which would compensate them for the total economic loss to their property present and future caused by s operations b)Note: Ct granted an injunction on condition of payment of permanent damages. But future damages are difficult to determine; granting permanent damages eliminates incentive to abate the nuisance. But, since there are many potential s, it might behoove the  to clean up its act. c)Note: Dissent said the majority was licensing a continuing wrong. An incentive to alleviate the wrong would be eliminated, thereby continuing air pollution. d) Note: A nuisance easement may be terminated for misuse - for an increase in use, for example. 4. Spur Industries () v. Del Webb Development Co.() a) Facts - Feedlots were suitable for cattle feeding.  purchased property near grazing land and expanded development for homes.  had problem selling homes because of odor problems. Ct held that ’s operation was an enjoinable public nuisance but that  must indemnify  for costs to move/ shut down. Cts of equity must protect the public I as well as the operator of a lawful, yet noxious business, from the result of a knowing and willful encroachment. b) Rule - A residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial/ agricultural endeavors and has been damaged thereby.

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c) Note: Had  alone been injured, then coming to the nuisance would have been a bar to the relief they asked for. But there were several homeowners who were also injured. 1. Traditional a. Conduct is unreasonable from the perspective of the P b.Unreasonable from the reasonable person standard 2. Contemporary a. Unreasonableness test balances the unreasonable conduct against the harm to the P 3. How to evaluate – a. Ask: Is the defendant’s conduct substantially and unreasonably interfering? b. Evaluation: Liability 1. P: unreasonable P-> measure of unreasonableness traditionally Unreasonableness-> ? of fact 2. Modern view: D’s conduct outweighs P’s harm – no liability D’s conduct-> social utility C. Coming to the nuisance – not a defense to the claim but is relevent to liability D. Trespass v. Nuisance 1. Trespass – intentional interference with right to exclude 2. Nuisance – intentional interference in right to use Remedies for Nuisance 1. injunction (traditional) at D expense 2. damages to P – at D expense (Boomer) 3. Nothing – (appropriate if P came to nuisance) expense on P 4. Indemnification – at P expense Court should chose the least cost solution and place the cost on the party at fault  Some jurisdictions apply balancing of equities in remedy -harm to D and public if injunction granted v. harm to P if not granted II. EASEMENTS 6 

A. An interest which a person has in the land in the possession of another B. An owner cannot have an easement in his own land 1. Reason: An E by definition is an interest which a person has in land in possession of another C. An owner may make use of 1 part of his land for the benefit of another part of his land (a quasi-easement) D. An implied grant is easier for the court to find than an implied reservation. E. Within SoF - requires written instrument F. What if B doesn’t tell D about the E to make his property value higher? Would A have any recourse? Yes. B has now interfered with A’s right to use! So damages may be awarded. G. If you inherit land or if you adversely possess, you take land subject to the E, with or without notice 1. RSN: You cannot get more than O owns; you are not a bfp. II. Types of Easements 1. Appurtenant – positive easement->right of use  A enjoys benefit: A, owner of benefit, enjoys in land owner capacity  If A conveys to C, C is now owner of dominant track and C now has the benefit.  Benefit runs with the land  A positive appurtenant gives the owner the right to use the servient owner’s land  Dominant-> right to use  Servient-> duty not to interfere  In right to use, A has a secondary easement to maintain and improve  B does not have duty  Determinable easement can be conveyed (it has a condition for breach which would terminate easement) 2. in-gross -> you can take it with you  personal easement in-gross presumptively is alienable  commercial easement is alienable  A right of way across land is not likely to be construed in-gross  If easement is written expressly it can overcome the presumptions  No dominant owner b/c no dominant land  Owner of servient track has duty not to interfere

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Negative Easements->right to restrict servient owners use 1. Appurtenant: ex: access to light&air across neighbor’s property. This would prohibit neighbor form building anything to block.  A good faith purchaser is stuck w/ burden if has notice 1. constructive notice – posted 2. Actual notice – seeing deed 3. Inquiry notice – if D sees A crossing & doesn’t ask. D has duty to inquire why A crossing  3 ways easements are created 1. expressly 2. implication 3. litigation If you inherit land, you take with burden of easements w/o notice If you AP, you take land subject to easements. cannot take more than he owns

 

You

Easement or License 1. described in detail, probably easement 2. A may pass on B’s property, probably license 3. If says revocable probably license, but can be revocable easement Prescription/Adverse Use 1. must meet all elements of AP except exclusivity (exclusive in sense that AU claim is exclusive of others 2. Permission to use defeats prescription b/c it is a license 3. Scope of use is limited to the prescriptive use Right to estoppel  License + reasonable, expensive reliance + knowledge of prespective servient owner = right to estoppel  Easement by estoppel – license becomes irevocable  Principal element of estoppel(license) is defeating to prescription  You need to make expressly revocable to avoid reliance Implied Easement 1. original common ownership 8

2. must have prior use which can be described as a quasi-easement 3. easement must be reasonably necessary 4. implied reservation – harder b/c a grantor of servient track had opportunity to explicitly create an easement – interpret K against drafter b/c had opportunity to make it clear Quasi-easement  You can’t have easement on your own land, but you could have something that looks like an easement. If one part of the property looks dominant and another servient  Example: B has three lots and lays a sewer line before conveying to A – seems to create a quasieasement before land sold->after an implied easement Easement by Necessity 1. original common ownership 2. strict necessity at time of division Extinquishing easement by necessity 1. no longer necessary 2. can’t have easement on your own land – if dominant and servient comes into one owner; easement is gone for good unless there is independent reason for easement (A reselling back lot) Beachfront Property Easements 1. If you own beachfront property, you own to highwater mark 2. As matter of public policy, navigable waters are publicly owned 3. Gaining prescriptive easement – courts have operated on idea that use is permissive 4. Public Trust Doctrine – beachfront owners own in trust for public; thus, if beachfront is divided by many owners, the publics right to use the beaches becomes doubtful. 5. If navigable lake, can claim riparian rights ->rt. To use the body of water Assignibility of Easements 1. Appurtenant – can be assigned ->dominant owner sells land

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2. In gross – presumptively not assignable if personal & presumptively assignable if commercial 3. Assignability can be established by express language Creation of Easements 1. expressly through grant 2. by implication – requires original common ownership 3. by necessity – requires original common ownership, necessity must arise at time of creation 4. by prescription – adverse CHOATE 5. by estoppel – where expensively relied with knowledge of licensor 6. by litigation – acquisition of nuisance easement 7. statutory condemnation – eminent domain Termination/Defenses 1. express terms (so long as used for x purposes, might be time limited 2. D & S owners are one person 3. Necessity terminated when no longer necessary 4. By prescription – if S owner CHOATE interferes with D owner’s use & D owner makes no objection 5. By estoppel – if obvious to S owner. Is D owner getting there by another way & S owner expensively relies on that 6. By misuse (per se) – adding land to D track is per se misuse unless the use is restricted to the original D track 7. By abandonment – simple nonuse is not enough – extinguished at moment of abandonment 8. Balancing the equities(Defense)– examine harms & benefits to both users – would enjoining S owner from interfering with D owner be equitable 9. Serves no useful purpose Enforcement of Easements 1. Benefit of easement appurtenant automatically runs to successor 2. Benefit of easement in gross automatically runs if so intended 3. Burden appurtenant runs w/ notice and intent is presumed 4. Burden in-gross intent is presumed if commercial not if personal 5. Intent is required for benefit and burden

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6. Easement appurtenant is presumed b/c it runs with the land 7. Notice is required for burden to bona fide purchaser Assessment of Easements 1. Was an easement created? 2. Is it enforceable by successive parties? III. Covenants    Covenants are promises about land use – convenants are property rights not K rights When a covenant runs with land, a property right is enforced Covenants may be more restrictive than ordinance but not less restrictive

Requirements in Enforcing Covenants at law
Horizontal privity

A
(promisee)

B(promisor)
<- veritical privity

B1 A to enforce against B1 1. strict vertical privity required for burden to run w/ land -> B must succeed in complete i.e. B has fee simple; must convey fee simple to B1 2. touch or concern – covenant must be on which touches or concerns the land 3. Notice 4. Intent – that covenant was intended to go w/ assignee – if covenant is one which T & C the land, intent is implied 5. Horizontal privity – privity of estate b/w the origninal parties (grantor-grantee, landlordtenant, etc.) satisfied today w/ any convenance of property interest – a simple exchange of promises b/w neighbors is not enough for horizontal privity.

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What is required for the successive promisee to enforce against original promisor? K
(promisee)

A

B(promisor)
<- RELAXED VERTICAL PRIVITY

A1 1. vertical privity – on benefit side it is not required that entire estate succeed. 2. T or C 3. Intent – if T or C lands, intent will be implied 4. Notice is not required 5. Horizontal privity is not required ** the benefit runs more easily than burdens for policy reasons

What is required for A1 to enforce against B1? A B

A1

B1

Benefit run to A1 burden to run to B1 1. 2. 3. 4. 5. 6.   intent on part of original parties Notice to B! T or C Horizontal privity for burden Vertical privity for benefit Strict vertical privity for B->B1 Law thinks of covenant as attached to estate. A->A1, the covenant goes with the estate Covenants enforced in equity are treated more as attached to land not estate

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

Difference b/w real covenants and equitable servitude is remedy 1. to be enforced at law, covenant must have been imposed expressly (w/ privity) 2. if seeking damages, you will only get it if it was not placed on land expressly – if by implication, then only remedy is injunction. 3. If by implication, somewhere must be an express restriction covenant which then by implication attaches to a property that it was not expressly stated for

Sanborn v. McLean  If an owner of 2 or more lots “so situated as to bear the relation” sells one w/ restrictions which benefit the other or others, the servitude becomes mutual.
“SFR” O A SFR O

   

If restriction enhances the value of the lot O retained, then by implication the restriction applies to O’s lot. Intent is implied b/c restriction is attached; enforcing in equity Covenant can never be implied on the basis of use Implied covenant means that when an express covenant applies to one piece of land – it is implied to another

Reciprocal Negative Covenant     2 or more lots so situated sale w/ restrictions with benefit to land

Touch and Concern Element 1. Is the covenant restrictive or affirmative? If affirmative, may not t or c. 2. Does the covenant effect the value of the property? If benefit is purely in-gross presumptively doesn’t 13

T or C land. Will be stricken from title but will be treated as part of K 3. If no land is benefited the burden will not run using T or C element Racially restrictive Covenants   Racially restrictive covenants are valid under Shelley v. Kramer as long as state doesn’t enforce Now, they are illegal under FHA

Common Interest Communities       CC&R’s enforced by homeowner’s Assoc. usually run easily b/c they are express Master deed – document which defines the essence of the community Lakeside Village ct. suggests that standard should be general validity of restriction not as applied to a particular owner Declaration should be given very strong presumption of validity b/c you buy in knowing the restriction Adopted restrictions may not be valid automatically – need to look at how adopted Ct. holds that non-enforcement would be proper only if violations are arbitrary, violate public policy, or are unconstitutional Rationales for this rule 1. presumption of validity -> helps to avoid litigation b/c not having a case by case analysis 2. certainty/predictibility – expectations of Condo owners and protects their reliance interest 3. helps shared housing formation 4. public policy->refers to Shelley – restriction which is unconstitutional if state were to impose & thus unconstitutional if enforced -> could have restriction which would not violate FHA & state would refuse to record 5. ct. applies this standard if restriction is reasonable -> reasonably related to health & cleanliness; protects the social fabric of common interest community

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Defenses to Covenants 1. change in circumstances  change must be substantial and radical  must be changes w/in the property restricted by the covenant 2. covenant has outlived it usefulness 3. abandoned or waived 4. too vague to be enforced 5. not a covenant just a personal agreement 6. Doesn’t meet a requirement at law Zoning Policy reasons for zoning 1. city planning  logistics (mixing public and private uses)  ordering public uses 2. avoiding nuisance suits 3. preservation of historic areas 4. control population density 5. public safety 6. aesthetics Alternatives to zoning 1. free market->let the market control 2. nuisance suits 3. covenants Constitutional Requirements which Zoning must meet: 1. 5th Amendment – No person shall be deprived of life, liberty, or property without due process, nor shall private property be taken for public use w/o just compensation. 2. 14th Amendment – nor shall any state deprive any person of life, liberty or property without due process or take private property for public use w/o just compensation 2 Ways gov’t can screw up: 1. Take priv. Property for public use w/o just compensation 2. Deprive property w/o due process  Take/Deprive are different

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Euclidian Zoning: comprehensive zoning serves the legitmiate police power objectives of preserving public health, safety, morals and general welfare. Zoning in general satisfies due process. Rule: Zoning is constitutionally permissible if it meets due process requirements (1) purpose legitimate (2) means rationally related to the purpose

Ways to challenge zoning” 1. Statutory  FHA  Outside Scope of Act enabling it  Spot zoning 2. Constitutionally a. Due Process 1. Procedural Due Process  Hearing  From impartial tribunal  Must explain reason for their decision 2. Substantive Due Process  2 parts: -end legit? -means legit? A zoning regulation can be challenged: On its Face: 1. is purpose legitimate? 2. Is the means to achieve the purpose rationally related to the stated purpose? As applied: 1. Is purpose legit? 2. Is application to this particular owner rationally related? Zoning is required to have a comprehensive plan. Due process analysis examines the plan. End-legit; meansrationally related? Unless Higher scrutiny required Deprivation Test: Presumption is as long as acting for public welfare and acts in a way that comports with due process (in both procedural sense and substantive sense) it is o.k.

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  

Substantive – process depends on what’s at stake Procedural – gov’t can deprive but must do so with due process Substantive d.p. standard: 1. gov’t can’t act arbitrarily 2. must be rationally related to legitimate police power

Legislative Framework in which land use regulation occurs: Enabling legislation – police power is state power so enabling legislation delegates this police power to local authorities (in most states) Standard State Zoning Enabling Act (SSZEA) Section 9: more stringent requirement prevails when there is a conflict between city/county ordinances. Most stringent to least stringent: Residential Commercial Industrial Agricultural Hazardous Section 3: Comprehensive Plan Requirement Comprehensive plans will serve due process and will provide harmonious development, not piecemeal Interpret separate from the zoning ordinance itself. If it is separate, it is implemented through subdivisions and zoning. Some courts say the zoning ordinance itself is the comprehensive plan…..Wiseman thinks SSZEA envisioned a plan Non-conforming Use Owner has vested property right – prior zoning vests the use in that owner ->A and B each buy a lot of commercially zoned land, A does nothing, but B builds a store and makes $$$ from it: B can recover b/c he made use of the land, A gets nothing. Reasonableness standard would be constitutional if enough time to realize return on investment in most jurisdictions…i.e. two years to change to conforming use

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Achieving Flexibility in Zoning 1. variance – deviation from zoning requirements b/c requiring landowner to conform would give unusual hardship -> way of avoiding constitutional problems Tend to be uses which take up a lot of space i.e. ordinance requires 100ft. setback. Owner of lot only has 85ft. Requests a variance Requirements for variance:  must have owner(original) apply for variance (can’t have purchased property after ordinance)  ordinance must be substantially harmful to owner  must be able to grant w/o detriment to comprehensive plan Use variance – SFR lots seeks variance to open dentist office -> difficult to show undue hardship.  Harder to get b/c a change in use is most inconsistent with zoning 2. Special exception – use which is permitted on the face of ordinance but which is different from regular use in zone and has to be specifically granted i.e. church in residential neighborhood 3. cluster zoning – size and width of individual lots in development may be reduced, provided that the overall density of the whole tract remains constant. Saved space is pooled and used as common open spaces (private park, swimming complex) 4. PUD (planned unit developments) – planned mix of residential and commercial use so that commercial needs of residents are close by creating communities within themselves. Zoning Amendments and the Spot zoning Problem Spot zoning 1. zoned to the benefit or detriment of single owner 2. outside the comprehensive plan

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Standard of review for courts 1. If legislative decision -> Is it arbitrary and capricious? Cts. Don’t think appropriate to review legislative decisions outside whether constitutional. 2. If ajudicative decision -> de novo application of law to fact Legislative gets very differential standard How do you tell if legislative or ajudicative? 1. If decision results in adoption of general rule or policy – legislative 2. If general rule applies to specific case – ajudicative See notes if needed Contract and Conditional Rezoning Conditional zoning - zoning conditional on owner adopting certain conditions i.e. a parcel in a residential area might be rezoned for light industry, but only if the developer agreed to large set-backs and a low floor-spaceto-land-area ratio.  Advantage – tailor conditions to particular land  Disadvantage – can create some arbitrariness; can create unequal bargaining power Contract Zoning – refers to arrangement where municipality enters into a binding commitment with the landowner.  Usually struck down by courts b/c or arbitrariness Takings Analysis
Scrutiny of Courts Classification Suspect class: Highest scrutiny Race, Nationality, Ethnicity, alienage, religion Quasi-Suspect: Gender, legitimacy ends Compelling Means Necessary

Important

Substantially Related

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Non-Suspect: Family values, Handicap, age, wealth Economic or social legislation

Legitimate

Rationally related

Permissible conceivable

Imaginative

The exercise of eminent domain requires just compensation. Analysis: 1. Is the end legitimate? 2. If legitimate, is the means rationally related? 3. Has an essential property right been destroyed? 4. Does the benefit to the public outweigh the detriment to the private owner?   When gov’t exercises its power in pursuit of legitmate police power purpose, public use requirement is presumptively met. Public use does not mean use by the public but rather some public interest

Hawaii Housing Authority v. Midkiff Transferred private land to private lessees. Court said this legislation serves a legit public service (breaks up oligopoly). Public use requirement is coterminous with police power. Gov’t may not pay for the right to arbitrary. There is a presumption that the legislature acts in public interest. Loretto When an essential property right has been permanently destroyed it is a taking. 1 ½ cubic feet of roof space taken by cable company – no longer has right to exclude Introduces denominator problem  Use issue – 100% of 1 ½ cubic feet

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

Or small fraction of entire building Alienation issue – cannot alienate 100% of 1 ½ Or small fraction of entire building

Hadacheck If gov’t regulating a public nuisance then can take with impunity. Pennsylvania Coal If denominator is pillar of coals then 100% of that property has been taken. (Holmes view of case) So, this regulatory act is a taking b/c destroys right to coal (use land) If denominator is Penn. Coal entire holding, then coal still owned by them just can’t mine it. That left in place is small percentage of economic loss – no taking (Brandeis view of case) Here, Holmes finds that the regulation amounted to a taking. Keystone Coal Reciprocity of advantage – prohibition of nuisances is always to the benefit of everyone including the owner. 27 million segment of estate not with other tons of coal does not constitute a separate property for takings law purposes – (support taking b/c not separate segment – only has value property)

Not really true – Wiseman thinks has value independently b/c both sides would like to have it. Denominator Test: (Wiseman) 1. Can you get there from here?  Can’t get to any of the coal without trespassing on Coal company property so not the 27M tons coal not the denominator 2. Does the property have exchange value?  Support estate has exchange value Introduces nuisance exception

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Penn Central Penn Cent. Concedes due process. Strict takings analysis

Examines Taking question 1. economic impact 2. interference with investment backed expectations 3. character of gov’t invasion Ct. seems to be proposing balancing test 1. Penn Central has to pay for upkeep of landmark which singles them out 2. Penn Central gets benefit for its burden (reciprocity of advantage) 3. Investment backed expectations – Penn Central can continue to use as have always used 4. Air rights are transferable, thus still have value (exchange value) 5. Administrative remedies have not been exhausted First English Destruction of essential property right does not have to be permanently destroyed to constitute a taking -> does this through analogy to gov’t occupation cases Doesn’t allow building in flood plain so little Lutherans deprived their area during floods Nollan Easement across private beach in order to get building permit. Ct. treated as taking but really due process analysis End – legit Means – not rationally related Essential Nexus Test - A state may not condition a property use permit on an act not addressing problem caused by the permitted use Dolan Rough proportionality test as opposed to reasonably related test

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True nuisance exception introduced. Lucas State must compensate owner when a regulatory action denies owner of economically viable use of his land, unless the prohibited use constitutes a nuisance under state law. Denies permanent buildings on lot

1. Ends 2. Means 3. Essential property right permanently destroyed (not permenantly) 4. Balancing test

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