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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

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property ii professor donald j kochan

Property IIProfessor Donald J. Kochan

Spring 2009

Class 53

13 April 2009

today s readings
Today’s Readings
  • Regulatory Takings
  • Pages 1006-1041
  • Lucas
  • Palazzolo
  • Tahoe-Sierra
  • Oral Arguments in Penn Central and Lucas
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 per se, categorical taking, a regulation may still go “too far”
  • 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
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
First English
  • If it is a categorical per se taking or otherwise a taking under Penn Central, the temporary nature is irrelevant, it is still a taking that takes the parties to the compensation/valuation stage
  • “Normal delays” in permitting, zoning, ordinance compliance obligations generally not a taking
tahoe sierra
Tahoe-Sierra
  • Moratorium – not a taking; not presumed to be permanent
  • Highlights issue of finality before deciding what the government has actually done; cannot determine yet
  • 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
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 and the bad on these tapes); analyze how the attorneys respond to questions and see how to do it well and what not to do
  • 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 & 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
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