Property II

Professor Donald J. Kochan

Spring 2009

Class 53 13 April 2009

Today’s Readings



Regulatory Takings

 Pages 1006-1041  

Lucas



Palazzolo Tahoe-Sierra

 Oral Arguments in

Penn Central

and

Lucas

Lucas

 Categorical Rule 1: Any physical invasion constitutes a taking  Categorical Rule 2: Any regulation that eliminates all economically viable use constitutes a taking  (note the stipulation in the case)  Ad hoc inquiry – even if it is not a regulation may still go “too far” per se , categorical taking, a  Finally, focus on the importance of whether the property owner had a right to conduct the activity unregulated at common law; if he did not, it cannot be a taking because the regulation is a legitimate exercise of the police power

Palazzolo

 Ripeness – finality, certainty, level of discretion to authorize activity, “ordinary processes” for decisionmaking  Avoidance techniques by regulators (the “we haven’t yet said no to everything yet” defense)  Post-regulation acquisition of property does not ipso facto bar regulatory takings claim

First English

 If it is a categorical

per se

otherwise a taking under taking or

Penn Central

temporary nature is irrelevant, it is still a taking that takes the parties to the compensation/valuation stage , the  “Normal delays” in permitting, zoning, ordinance compliance obligations generally not a taking

Tahoe-Sierra

   Moratorium – not a taking; not presumed to be permanent Highlights issue of finality before deciding what the government has determine yet actually done ; cannot Consider Ripeness Issues    Indefiniteness Issues – delays generally not categorical takings Denial of economically productive use; diminution in value at compensation stage Leasehold hypothetical – is a moratorium like an uncompensated government lease?

  Compare with temporary takings v. permanent takings How does it affect not only use of the property but also investment?

 Non-Required: Oral Argument http://www.oyez.org/cases/2000-2009/2001/2001_00_1167/

Pedagogical Reasons for Listening to Oral Arguments

     A glimpse into the Supreme Court of the United States and its Justices – www.supremecourtus.gov

See what preceded the decisions you have read Analyze how the arguments involved in those cases were presented and analyzed Examine the audio for purposes of learning oral advocacy skills (you can learn from the good do and the bad on these tapes); analyze how the attorneys respond to questions and see how to do it well and what not to Professor Kochan will provide analysis during those arguments played in class, on substance and advocacy and lawyering skills, including a discussion of pre argument briefing

Penn Central & Lucas Oral Arguments

Penn Central (to be played in class) http://www.oyez.org/cases/1970 1979/1977/1977_77_444/argument/ Lucas (to be played in class) http://www.oyez.org/cases/1990 1999/1991/1991_91_453/argument/

Concluding Remarks

 Place yourself in the shoes of the property owner  Place yourself in the shoes of affected or interested members of society  Place yourself in the shoes of the regulator