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Instructions: Go to “Slide Show” on the upper menu bar and select “View Show”.

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  1. Instructions: Go to “Slide Show” on the upper menu bar and select “View Show”. Use the down cursor key to move through the slides. Answers slide in underneath the questions. Note that if you hit ESCAPE in the middle of working through the slides, you will have to start from the beginning and skip through to where you left off. There are 107 questions total. (c) Daragh Carter, UHLC 2002.

  2. Eminent Domain / Regulatory Takings Q1: What is the bumper sticker for MIDKIFF? For a use of the police power / a taking to be constitutional, it must be rationally related to a conceivable public purpose. (c) Daragh Carter, UHLC 2002.

  3. Eminent Domain / Regulatory Takings Q2: What is the bumper sticker for LORETTO? A: A permanent physical occupation is a taking, period. (c) Daragh Carter, UHLC 2002.

  4. Eminent Domain / Regulatory Takings Q3: What is the bumper sticker for HADACHECK? A: Regulations without compensation are appropriate to prevent common law nuisances. (c) Daragh Carter, UHLC 2002.

  5. Eminent Domain / Regulatory Takings Q4: What is the bumper sticker for PENN COAL? A: When a regulation goes too far, it will be considered a taking. (c) Daragh Carter, UHLC 2002.

  6. Eminent Domain / Regulatory Takings Q5: What is the bumper sticker for LUCAS? A: If a regulation reduces the economic value of land to zero, then it is a taking. Side note: If the background of common law had supported the regulation (e.g. if the proposed use was a nuisance, the above does not apply). (c) Daragh Carter, UHLC 2002.

  7. Eminent Domain / Regulatory Takings Q6: What is the bumper sticker for PENN CENTRAL? A: When a reasonable investment backed expectation is infringed upon, there may be a taking. (c) Daragh Carter, UHLC 2002.

  8. Eminent Domain / Regulatory Takings Q7: What is the bumper sticker for NOLAN? A: There must be an essential nexus between the public purpose/goal of the exaction and what is being exacted. (c) Daragh Carter, UHLC 2002.

  9. Eminent Domain / Regulatory Takings Q8: What is the bumper sticker for DOLAN? A: There must be a rough proportionality between the cost of the exaction upon the developer, and the cost of the developer’s action on the public. (c) Daragh Carter, UHLC 2002.

  10. Eminent Domain / Regulatory Takings Q9: What are the two questions to ask about a proposed government taking through eminent domain? A: Can government do it? (I.e. is it constitutional) Must government pay? (Must they compensate the landowner). (c) Daragh Carter, UHLC 2002.

  11. Eminent Domain / Regulatory Takings Q10: PILGRIM COAL was a case cited by Justice Holmes in the PENN COAL case. What “balancing test” did Holmes refer to from Pilgrim Coal that could be used to decide if a regulation had gone too far? A: He referred to an “average reciprocity of advantage” – that either party subject to the regulation would experience approximately equal benefit and detriment, such that neither was significantly advantaged/disadvantaged as compared to the other. In Pilgrim Coal, a regulation required two mining companies to leave a wall between their neighboring mines, that way if one mine flooded the other would not. The average reciprocity of advantage was satisfied, both mines benefited from the increased safety of their miners. The burden on each was also about equal. (c) Daragh Carter, UHLC 2002.

  12. Eminent Domain / Regulatory Takings Q11: In PENN CENTRAL, what did Justice’s Brennan and Rehnquist focus their attention on in deciding if the regulation amounted to a taking? A: Justice Brennan focused on what was left – the owners had not been deprived of all economic value, hence there was no taking. Justice Rehnquist (dissenting) focused on what was taken – the air rights to develop above Penn Central station and what the air rights were worth, and whether the TDRs (Transferred Development Rights) were adequate compensation. (c) Daragh Carter, UHLC 2002.

  13. Eminent Domain / Regulatory Takings Q12: Did LORETTO focus on what was taken, or what was left? A: What was taken: two cubic feet of space on the roof. (c) Daragh Carter, UHLC 2002.

  14. Eminent Domain / Regulatory Takings Q12: Did HADACHECK focus on what was taken, or what was left? A: Actually, because nuisance law was applied, it didn’t matter. (c) Daragh Carter, UHLC 2002.

  15. Eminent Domain / Regulatory Takings Q13: Did PENN COAL focus on what was taken, or what was left? A: What was taken: the coal that the coal company was required to leave un-mined so that there were support columns. (c) Daragh Carter, UHLC 2002.

  16. Eminent Domain / Regulatory Takings Q14: Did LUCAS focus on what was taken, or what was left? A: What was left: essentially nothing of any economic value. (c) Daragh Carter, UHLC 2002.

  17. Eminent Domain / Regulatory Takings • Q15: What “reasonable investment back expectations” did the court set out to protect in: • PENN COAL • PENN CENTRAL • LUCAS A: In PENN COAL: the coal company expected to mine ALL of the coal, not just some of it. Being forced to leave coal in the columns interfered with that. In PENN CENTRAL: Rehnquist wanted to protect the owner’s investment expectation to be able to develop the property further. In LUCAS: the expectation to build houses on the lot was reasonable because it was not a common law nuisance. (c) Daragh Carter, UHLC 2002.

  18. Eminent Domain / Regulatory Takings Q17: What principle is illustrated in PALAZZOLO v. RHODE ISLAND? A: The court found that because the restriction on land use (the land was protected wetlands) left the plaintiff with $200,000 worth of developable land, he had not been deprived of all economic value, therefore there was no taking. A person must be deprived of ALL economic value of their land in order for the regulation to be a taking. (c) Daragh Carter, UHLC 2002.

  19. Eminent Domain / Regulatory Takings Q18: What is an exaction? A: An exaction is a condition placed upon the development of land, e.g. you may build X only if you agree to term Y. (c) Daragh Carter, UHLC 2002.

  20. Eminent Domain / Regulatory Takings Q19: In the NOLLAN case the California Coastal Commission (defendant) wanted the public to be able to see the beach from the road, and the exaction asked of NOLLAN required permanent physical access to the beach across NOLLAN’s land. Why is this a problem? A: There is no essential nexus between the public purpose/goal of the exaction and what the exaction requires. The public having physical access across NOLLAN’s land bears no relationship to the public being able to see the beach from the road. (c) Daragh Carter, UHLC 2002.

  21. Eminent Domain / Regulatory Takings Q20: Briefly describe how the Texas Open Beaches Act functioned to gain permanent physical access to privately owned beach property without a taking. A: The Act used the background of common law. Because the public had 10 years of uninterrupted physical access to the land, the owner loses their right to exclude others. In brief the Act says that from the mean high tide mark to the vegetation line is open to the public. If the vegetation line is pushed back behind a beachfront house and the house is more than 50% destroyed, it cannot be rebuilt. (c) Daragh Carter, UHLC 2002.

  22. Eminent Domain / Regulatory Takings Q21: First English Evangelical v. County of Los Angeles completed Justice Holmes’ statement in Penn Coal. What statement, and what was the completion? A: The statement completed was “when a regulation goes too far it will be recognized as a taking”. The completion is “…and government must pay.” (c) Daragh Carter, UHLC 2002.

  23. Eminent Domain / Regulatory Takings Q22: One group loves exactions and another group hates them. Who are the groups and why do they feel that way? A: Local governments love exactions; it’s like printing money. It is a common means of funding public improvements. Developers hate exactions. Exactions just add extra costs and conditions to their development plans. (c) Daragh Carter, UHLC 2002.

  24. Eminent Domain / Regulatory Takings Q23: The rule coming from the DOLAN case regarding exactions was that there must be _________ ? A: There must be a rough proportionality between what is required by the exaction (in Dolan’s case, title to some of her land to build a flood easement and a bike path) and what is permitted in return (in Dolan’s case, she wanted to enlarge her store). Note: The easiest way to think of rough proportionality is that the government can’t ask for your entire garden in exchange for their permission for you to build a mailbox. No rough proportionality. (c) Daragh Carter, UHLC 2002.

  25. Eminent Domain / Regulatory Takings Q24: What is an inverse condemnation? A: This is the flipside of a taking. It’s when an owner files suit to institute a forced sale of the land. An example is the CAUSBY case where a chicken farmer moved for an inverse condemnation of his land because noise from a nearby military airport stopped his chickens from producing eggs. (c) Daragh Carter, UHLC 2002.

  26. Eminent Domain / Regulatory Takings Q25: What political undertones did Mixon reference with regard to MIDKIFF? A: That it seems odd that a Republican Judge like Sandra Day O’Connor would appropve of legislation that took land from a few powerful landowners and forced it’s sale to the regular folks. But look at who really benefited from the sale…arguably it was the rich landowners because they were able to sell all of their land free of federal gains taxes. (c) Daragh Carter, UHLC 2002.

  27. Eminent Domain / Regulatory Takings Q26: Dolan v. City of Tigard’s requirement that regulations be measured for “rough proportionality” is conceptually most similar to: A: Penn Coal v. Mahon’s distinction between regulations that provide an average reciprocity of advantage and those that go “too far” and require compensation. [Fall 1999 Exam, Q1] (c) Daragh Carter, UHLC 2002.

  28. Eminent Domain / Regulatory Takings Q27: A city adopts an ordinance that requires all houses in the “blue district to be painted blue, all in the “red” district to be painted red and all in the “green” district to be painted green. When challenged, the city justified its ordinance as reducing danger to public health from disease-carrying mosquitos. The single most pertinent case to cite to rebut the city’s claim is: A: Nollan v. California Coastal Commission. Because there is no essential nexus between what the ordinance is asking for – painting houses – and the purpose/goal of the ordinance – mosquito danger control. [Fall 1999 Exam, Q2] (c) Daragh Carter, UHLC 2002.

  29. Philosophical Sidebar Q28: What does “rational maximizer of utility” mean? A: Everyone is a rational maximizer of utility – we all try to get the most out of our environment and interactions. (c) Daragh Carter, UHLC 2002.

  30. Philosophical Sidebar Q29: Does the situation below pass Pareto-Superiority?  A: Yes, because some people are better off, one is unaffected, and nobody is worse off. (c) Daragh Carter, UHLC 2002.

  31. Philosophical Sidebar Q30: Does the situation below pass Pareto-Superiority?  A: No, because while the majority of people are better off, one is worse off. A situation will fail Pareto-Superiority if A situation will fail Pareto-Superiority if anyone is worse off than before. (c) Daragh Carter, UHLC 2002.

  32. Philosophical Sidebar Q31: Does the situation below pass Kaldor-Hicks?  A: Yes. If the “winner’s” gain is sufficient such that the winner could compensate the “loser” adequately, that passes Kaldor-Hicks. We don’t actually care whether the loser is compensated or not, because that does not affect the efficiency of the transaction. (c) Daragh Carter, UHLC 2002.

  33. Philosophical Sidebar Q32: What is a cost externality? A: A cost that occurs in a transaction that is not figured into the market cost of something. For example, the cost of pollution from refineries is an external cost that is not figured into the cost of gasoline. (c) Daragh Carter, UHLC 2002.

  34. Zoning Q33: What was said of zoning at the district court level in AMBLER v. EUCLID? A: The district court found that zoning was unconstitutional. The court felt that no legitimate public purpose was served by zoning, and that it functioned to cause economic segregation (keep the poor away from the rich). Zoning flunked the “Can government do it” test as far as the district court was concerned. (c) Daragh Carter, UHLC 2002.

  35. Zoning Q34: What was said of zoning at the Supreme Court level in AMBLER v. EUCLID? A: The supreme court felt that zoning was constitutional; it advanced the public interest by restricting certain types of land use, thus providing sunshine and fresh air. (c) Daragh Carter, UHLC 2002.

  36. Zoning Q35: What was the test for constitutionality of zoning as applied by the Supreme court in AMBLER? A: The supreme court looked to see if there was a substantial relation between zoning and the public health, safety, morals or general welfare. (c) Daragh Carter, UHLC 2002.

  37. Zoning Q36: Which member of the supreme court was apparently asleep at the switch for AMBLER and why? A: Possibly Justice Holmes who had decided Penn Coal (with its average reciprocity of advantage) just 4 years earlier. Mixon says that Holmes must have been sleeping in the corner for Ambler, though it’s possible that if he had been awake he might just have said “Oh well, zoning is ok, everyone it affects everyone about the same”. (c) Daragh Carter, UHLC 2002.

  38. Zoning Q37: The supreme court’s decision in AMBLER is arguably an example of what? A: Issue framing. On one hand it can be argued that zoning is targeted at maintaining the public health, safety, morals and general welfare. Alternatively it’s purpose is to segregate the poor apartment dwellers from the rich single family home owners. (c) Daragh Carter, UHLC 2002.

  39. Zoning Q38: Euclidean zoning is said to be cumulative. What does this mean? A: It means that higher uses (for example residential housing) is permitted in lower use zones (for example an industrially zoned area), but not vice-versa. (c) Daragh Carter, UHLC 2002.

  40. Zoning Q39: The SZEA (Standard Zoning Enabling Act) was enacted in 1922. It enables local government to___________? A: enact zoning ordinances in accordance with a comprehensive plan. (c) Daragh Carter, UHLC 2002.

  41. Zoning Q40: What are the steps involved in adopting a zoning ordinance? A: 1. Appoint a zoning commission. 2. The commission draws up a zoning plan and map regulations to designated districts 3. The commission listen to the community and get their feedback. 4. The mayor/city council hear the commission recommendations, then hear from the citizens, then vote on the ordinances. (c) Daragh Carter, UHLC 2002.

  42. Zoning Q41: The Zoning Commission is a party involved in zoning. What is their function? A: The zoning commission draws up the initial proposed zoning ordinance and then remains in some capacity to oversee proposed amendments to the zoning ordinance. (c) Daragh Carter, UHLC 2002.

  43. Zoning Q42: The Board of Adjustment is a party involved in zoning. What is their function? A: The Board of Adjustment hears the cases of individual landowners wishing to use their land for a purpose not approved by the zoning ordinance. The Board has the power to grant variances: a variances is an approval of a non-conforming use. (c) Daragh Carter, UHLC 2002.

  44. Zoning Q43: What is a special exception, and who grants it? A: Granted by the Board of Adjustment. A special exception is a land use that is conforming to the zoning ordinance, but which needs special oversight to avoid possible problems down the line. Example: Placement of a school might need a special exception – don’t want to put the school next to a freeway where the kids might be endangered. (c) Daragh Carter, UHLC 2002.

  45. Zoning Q44: What is a zoning amendment, and who grants it? A: Granted only by the zoning commission. This is literally what it says it is, a change to the zoning ordinance/laws. (c) Daragh Carter, UHLC 2002.

  46. Zoning Q45: What is a special use permit, and who grants it? A: Granted by the city council. Provides permission to make special use of a property. (c) Daragh Carter, UHLC 2002.

  47. Zoning Q46: What is spot zoning? A: A departure from the comprehensive plan which singles out a particular tract of land for special treatment, typically to benefit the individual landowner/developer without regard for the interests of the surrounding community. (c) Daragh Carter, UHLC 2002.

  48. Zoning Q47: The legislative/adjudicative question. Which parties are supposed to behave in which manner? A: The Board of Adjustment is supposed to behave in a purely adjudicative manner and deal only with the case before them rather than trying to work to shape law/policy. The city council is supposed to perform a legislative function is shaping zoning law rather than behaving adjudicatively to serve the interests of one/a small number of persons. (c) Daragh Carter, UHLC 2002.

  49. Zoning Q48: A special use permit is granted by city council. Is this a legislative or adjudicative function? A: Debatable! Mixon says it is kind of both. (c) Daragh Carter, UHLC 2002.

  50. Zoning Q49: What is the substantive due process requirement for zoning? A: The zoning must be rationally related to the conceivable public purpose of furthering public health, safety, morals and general welfare through the comprehensive plan upon which it is based. (c) Daragh Carter, UHLC 2002.