Regulatory Takings p.409
- Government, rather than condemning property and formally transferring title to itself under the eminent domain power, merely “regulate” its use and thus substantially diminishes its value à. Government is obligated to pay “just compensation” for the loss under the Takings Clause ? à. The Court Held yes
- “inverse condemnation” suits by property owners against regulations that are not formal takings have become commonplace
- Whether regulation rose to the level of a taking requiring just compensation
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
- P (property owner) ; D(mining company) ; A deed granted P the surface rights but reserved to D the right to mine all coal under the house ; P sought to enjoin D from mining under P's house and removing the supports and causing subsidence
- P argued that the Kohler Act extinguished D’s right to mine under P's surface land
Held
- the Kohler Act was unconstitutional as a taking of D's rights under a valid contract ; Ps, in order to protect themselves, should have contracted to acquire more than the surface rights ;
o (Do- the Act which forbids mining in such way to remove supports and to cause subsidence, amounts to a “taking” coz it in effect take the contractual right to mine coal; thus, unconstitutional )
o (DO- two factors , (i) it affects mining , (ii) property owner waived all claim for damage, i.e. they should have done more to protect their property )
- Held - the Kohler Act could not have been used to terminate the valid contractual rights D received, nor could the Act could be used to take D's contract rights without adequate compensation
Reasoning
- The destruction of property and contract rights by the Kohler Act, forbidding the mining of anthracite coal so as to cause the subsidence of certain buildings and places, cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved
- Unconstitutional also because … the property owners whose deed reserved the right to remove the coal, and who thereby waived all claim for damages therefrom
- <one factor> In determining the limits within which values incident to property may be diminished under the police power without compensation, the extent of the diminution is a fact for consideration
- <regulation v. taking> While property may be regulated to a certain extent, if regulation goes too far, it constitutes a taking
- <judicial deference to legislature> in determining whether there has been such a diminution in values incident to property under the police power as to (i.e., taking) require an exercise of eminent domain and the payment of compensation,, the greatest weight is given to the judgment of the Legislature, but it always is open to interested parties to contend that the Legislature has gone beyond its jurisdictional power.
Dissent
- The restriction here is not a taking, but merely the prohibition of noxious use
Note
- A few should not bear all the cost of the public welfare ; that cost should be spread through the compensation requirement
Miller v. Schoene, 276 U.S. 272
- Acting under the Cedar Rust Act of VA law, D state entomologist ordered Ps tree owners to cut down a large number of ornamental red cedar trees growing on their property as a means of preventing the communication of a rust or plant disease with which they were infected to the apple orchards in the vicinity ; Held it not taking
- DO- seemed to consider importance of apple orchard as a “public use” , e.g. “ apple growing is one of the principal agricultural pursuits in VA”
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, p.413
- Upheld a modern day counterpart to the Kohler Act
Note
- The Court has not confined the notion of regulatory takings to real property
When zoning, landmarking, other environmental laws are challenged as being compensable “takings” ?
Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, <the Penn Central Balancing test>
- Fact - The law required the owner of a designated landmark to keep the building’s exterior in good repair, and to obtain approval from a city commission before making exterior alterations
- Held - NY preservation law designating a certain building a “landmark” constituted a permissible regulation, not a compensable taking ,
Reasoning
- no set formula for determining when justice and fairness require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons
-
- <factors> - the economic impact of the regulation and, particularly, extent to which the regulation has interfered with distinct investment backed expectations as well as character of the governmental action
- A “taking” may more readily be found (i) when the interference with property had to be characterized as a physical invasion by the government, and (ii) when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good
- A use restriction on real property may constitute a “taking” (i) if not (reasonably) necessary to the effectuation of a substantial public purpose or perhaps (ii) if it has an unduly harsh impact on the owner's use of the property.
- In deciding whether particular governmental action has effected a “taking,” the character of the action and nature and extent that the interference with property rights are focused on, rather than discrete segments thereof.
<a per se rule for permanent physical occupation> p.415
Loretto v. Teleprompter Manhattan Catv Corp., 458 U.S. 419,
- When the government authorizes a permanent physical occupation of an owner’s property, there is a taking without regard to the public interests that the government action may serve
- Invalidated NY law that provided that a landlord must permit a cable TV company to install cable wire upon a landlord’s rental property
<a per se rule for regulations denying all economically beneficial use >
Lucas v. S.C. Coastal Council, 505 U.S. 1003,
- Regulation that prohibit all economically beneficial use of land
- Invalidates SC law that had the effect of barring property owner from erecting any permanent habitable structure on his two parcels
First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304,
- Mere validation of the regulation restricting the use of the property was a constitutionally insufficient remedy when government regulation proves sufficiently burdensome to constitute a taking
- The state was also required to pay damages for the temporary taking in effect during the period before the ordinance was struck down
Palazzolo v. Rhode Island, 533 U.S. 606
- A property owner could challenge as a regulatory taking restrictions on his property that had originally been imposed prior to his acquisition of that property
< a temporary development ban > - per se rule denied
- The degree of scrutiny applicable to conditional development exactions under the Takings Clause
Dolan v. City of Tigard, 512 U.S. 374, p.420
- Dolan had sought a permit to increase the size of her plumbing and electrical supply store ; the city conditioned the approval of a building permit on the dedication of a portion of her property for flood control and traffic improvements
- Held – the conditions unconstitutional
- First, determine whether the “essential nexus” exist b/w the legitimate state interests and the permit condition exacted by the city (Nollan) , here, the nexus exists
- Then, the required degree of connection b/w the exactions and the projected impact of the proposed development à rough proportionality test
o The city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development
- Here, the city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control
The Contract Clause p.422
- Art. I sec. 10 – prohibition of state law impairing the obligation of contracts
- Original purpose – to restrain state laws affording debtor relief
- E.g. held unconstitutional a NY insolvency law which discharged debtors of their obligations upon surrender of their property
- The Court (flexible approach) - the Contract Clause did not prohibit all state insolvency laws
Home Bldg. & Loan Asso. v. Blaisdell, 290 U.S. 398
- challenged the validity of the MN Mortgage Moratorium Law (Act), as being repugnant to the Contract Clause of U.S. Const. art. I, § 10 ; the statute, which granted appellees an extension for the period of redemption for a foreclosure sale, was sustained ;
- Held - the Act had been enacted pursuant to the state's police power with regard to an emergency economic crisis ; that the legislation was addressed to a legitimate end ; the conditions upon which the period of redemption was extended were not unreasonable, and ; the legislation was temporary in operation
Reasoning
- All contracts are subject to right of eminent domain
- States retains adequate power to protect public health against nuisance, and to protect public safety despite insistence upon existing contracts
United States Trust Co. v. New Jersey, 431 U.S. 1,
- A law impairing a state’s own obligation was subject to greater scrutiny than legislation interfering with private contracts
- as with laws impairing the obligations of private contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose, although in applying such standard, complete deference to a legislative assessment of reasonableness and necessity is not appropriate, since the state's self-interest is at stake
sec. 3.. substantive due process and privacy p. 427
question – whether the Court infer from Due Process not only economic liberties, but also rights to privacy, such as, family formation, child-bearing, contraception, abortion, and sexual conduct ?
- does it raise similar problem as in Lochner ? e.g. judicial competence
Meyer v. Nebraaska,
- based on “liberty”, reverse the conviction of a teacher for teaching German
Pierce v. Society of sisters ,
- OR law which requires children to attend public schools, the law interfered with the liberty of parents to direct the upbringing of children under their control
Skinner v. OK
- OK law which provides for compulsory sterilization after a third conviction for a felony
Griswold v. Connecticut, 381 U.S. 479, p.429
- Ds were convicted of violating the CT birth control law ;
Held
- that the CT law forbidding use of contraceptives unconstitutionally intrudes upon the right of marital privacy
Reasoning
- Planned Parenthood League's executive director and medical director who had been convicted as accessories for giving information, instruction, and medical advice to married persons as to means of preventing conception had standing to question constitutionally of Connecticut law forbidding use of contraceptives
- “Lochner should be our guide ; but we decline that invitation ; we do not sit as a super-legislature …
- We recently referred to the 14th as creating a right to privacy, no less important than any other right carefully and particularly reserved to the people
- A governmental purpose to control or prevent activities (which are) constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade area of protected freedom
Goldberg concurring
- I have not accepted the view that “due process” as used in the 14th incorporates all of the first eight Amendments,
Black, dissent
- I got nowhere in this case by talk about a constitutional “right of privacy” as an emanation from one or more constitutional provisions ; due process … to claim power to invalidate any legislative act which the judges find irrational, unreasonable, or offensive ;
- If those formulas based on “natural justice” are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary ; the power to make such decisions is of course that of a legislative body
- … natural law due process philosophy found in Lochner , that was a philosophy which many later opinions repudiated, and which I cannot accept
Stewarr , dissent
- I can find no such general right of privacy in the Bill of Rights, in any other part of constitution, or in an case ever before decided by this Court
Note p.435
1.,
- Majority – disavows Lochner as a guide ; he relies instead on the “penumbras” and “emanations” of several specific guarantees in the bill of Rights
- Lochner v. Griswold -
Eisenstadt v. Baird, 405 U.S. 438, p.436
- Overturn a conviction under a law banning the distribution of contraceptives
- “ It is true that in Griswold the right of privacy in question inhered in the marital relationship ; Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup ; if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
