BEST OF BLONDIE (Songs 1977-81) Today: Lecture May Run Over Time; Go Till Done Hold Qs Until After Class No Office Hours Tue-Wed; I’ll Post on Course Page

BEST OF BLONDIE(Songs 1977-81)

• Today: Lecture • May Run Over Time; Go Till Done• Hold Qs Until After Class

• No Office Hours Tue-Wed; I’ll Post on Course Page Soon for 11/26-12/14

• Assmt Sheet Updated for Final Week• Course Evaluations at End

Mon/Tue

MORE COMING ATTRACTIONS

• Ackerman (Mon/Tue): Asking Very Specific Qs• Key Terms (“Ordinary Observer” &

“Bad Joke”) used in context of these Qs• Not asking if people would like the

regulation

• Exam Qs Assigned: IIID(1998) & IIIF(2001)• Mon/Tues: What Makes Qs Difficult?• Final Class: Arguments re Those

Difficulties

• Thanksgiving Invitation

Penn Central: Takings Analysis

KEYS TO COLOR OF TEXT TODAY

Greens = Arguments of Claimant PCBlues = Points Made by MajorityReds = Points Made by Dissent Purple = Points Made by Prior AuthoritiesBlack = Commentary from Me

Yellow/Gold: Open Qs After Yellow/Gold: Open Qs After Penn Penn CentralCentral


Structure of Penn Central Takings Analysis

1.Overview

2.Relatively Clear Instances of Takings3.Arguments from Purpose4.Arguments re Harm to Property Owner5.Means/End Testing

Penn Central Takings Analysis: Relatively Clear Instances of

Takings• More likely a Taking if there is a

physical invasion of property by or because of gov’t –Note: Based on type of interference

rather than purpose or extent– Arguably Michelman reasons: Likely

high demoralization costs for physical invasions

Penn Central Takings Analysis: Relatively Clear Instances of Takings

• More likely Taking if physical invasion

• Gov’t actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions. (Sax Enterprisers)


• More likely Taking if physical invasion• Gov’t actions that may be characterized as

acquisitions of resources to permit or facilitate uniquely public functions. (Sax Enterprisers)

• US v. Causby (DQ131) arguably both:– Very low airline overflights invaded

airspace –Use by military completely destroys

value of farm

Penn Central Takings Analysis: Relatively Clear Instances of Takings• US v. Causby (DQ131): Taking where …– Very low airline overflights invaded airspace –Use by military completely destroys value of

farm• DQ131: Majority distinguishes Causby

from PC:–No physical invasion of airspace by NYC–No appropriation of property by NYC for

gov’t use or exploitation for gov’t purposes –Harm to PC not arising from gov’t

entrepreneurial operations


• DQ131: Majority treatment of Causby suggests endorsement of Sax with narrow view of “Enterpriser”–Majority Characterizes PC: No

appropriation of property [by NYC] for gov’t use or exploitation for gov’t purposes.

– Arguable if “Enterpriser” read broadly (see application of Sax to PC in earlier slides)



1.Overview2.Relatively Clear Instances of Takings

3.Arguments from Purpose4.Arguments re Harm to Property Owner5.Means/End Testing

Penn Central Takings Analysis: Arguments from Purpose

Purpose: Where Were We Before Penn Central?

•Hadacheck & Mahon: Can regulate to stop public nuisance.•Miller: To save one type of property, can limit or destroy another type•Sax & Epstein both think purpose is important•Indirectly enters into Michelman b/c affects people’s perception of situation and thus may be relevant to both Demoralization Costs & Fairness Principle


Majority’s Discussion of Zoning (p.130)

•US SCt had previously “upheld land-use regulations that destroyed or adversely affected recognized real property interests” where – State gov’t “reasonably concluded”

– that forbidding particular land use –would promote HSWM

•Reaffirms Hadacheck & Miller; gives many examples of permissible regulations


PC Tried to Distinguish Hadacheck/Miller, etc.

•Argued laws upheld in these cases all designed to stop “noxious uses” (essentially public nuisances) (see fn 30)•This is plausible reading of earlier cases : – Stopping public nuisance/noxious use = no

Taking – Different rules for other kinds of gov’t actions.– E.g., BDS in Mahon dissent re public harm v.

public benefit


Dissent Agrees with PC: Providing Benefit Different From Stopping Harm•“[T]he gov’t can prevent a property owner from using his property to injure others without having to compensate the O for the value of the forbidden use.” (p.138)•Describes Hadacheck & Miller as noxious use cases (fn8 p.138) •NOTE: Even the most Conservative Justices in 1978 don’t question results in Hadacheck & Miller


Dissent Apparently Would Adopt Position Later Articulated By Epstein

(Taking unless Public Nuisance or Reciprocity)

•Dissent Sees Neither Here•DQ133: As I argued earlier, could see some reciprocity in tourist $$$ flowing to PC; neither opinion recognizes•Important: Majority Implicitly Rejects Epstein Position by Disagreeing w Dissent


[DQ132] (n.30): Majority seems to reject distinction between preventing harm &

providing benefit. •In Hadacheck & Miller, uses lawful at time of regulation [relevance: Os not bad actors meriting punishment?]•Cases don’t turn on “noxious use” but that restrictions were “reasonably related” to implementing a policy “expected to produce a widespread public benefit”•Plus destruction of historic landmark is public harm.


DQ132: Does Footnote 30 alter earlier cases?

•If “noxious use” category gone, would seem to mean that readings of Hadacheck & Miller that rest on public nuisance idea are incorrect.•I’m skeptical that category is completely gone. You’d think preventing greater harms ought to give state more leeway to regulate land use.

Penn Central: Takings AnalysisBig Qs Left Open by Big Qs Left Open by Penn Central Penn Central

A.A.Noxious UseNoxious UseB.B. Meaning of Distinct Invest-Backed Meaning of Distinct Invest-Backed

Expectations (DIBE)Expectations (DIBE)

C.C. DIBE & DIBE & HadacheckHadacheck

D.D. Denominator QDenominator Q

E.E. Heightened Scrutiny for Takings?Heightened Scrutiny for Takings?


Noxious UseNoxious UseShould we read Footnote 30 literally to mean that harm/ benefit distinction is irrelevant to Takings analysis and there’s no special treatment for “noxious uses”?

—OR—Can we still argue that gov’t gets more leeway to limit property rights when stopping harm to others or when purpose is otherwise very important?



1.Overview2.Relatively Clear Instances of Takings3.Arguments from Purpose

4.Arguments re Harm to Property Oa. Distinct Investment-Backed

Expectationsb. Denominator Q

5.Means/End Testing

Penn Central Takings Analysis: Arguments re Harm to Property

Owner• Majority rejected claimant’s argument

that any significant loss in value is a Taking. (Last Class)

• However, says (p.130) that a significant factor in Takings analysis is the “extent to which the regulation has interfered with distinct investment-backed expectations” (DIBE)

• Opinion is not explicit about what DIBE means or its relationship to the facts or to prior cases


Owner[DQ127] Not significant interference

with DIBE in Penn Central (pp.135-36)•No interference w primary expectations re parcel. – Can still use in way intended (RR Stn)– Can still make reasonable rate of return (RRR)

on investment

•Claimant exaggerates impact on “air rights”– No indication that can't build anything above.– Can transfer air rights in any event (suggests

can consider TDRs in doing valuation)


Owner[DQ127]: DIBE: My Read from

Majority•Expectations = – Refers to owner’s expectations at time of

purchase (or relevant subsequent investment)– Expectations presumably must be

plausible/lawful at time = implicit requirement of reasonableness



Majority•Distinct: expectations re property right affected must be– Specific: Not vague like “someday I

might develop more” or “I want as much profit as I can get”

– Separate from Whole (where relevant): Look for evidence showing O considered right in Q separately at time purchased



Majority•Investment-Backed? – Evidence that distinct property right

specifically paid for (e.g., separate price or negotiation)

–Rewards good lawyering in drafting transaction documents (e.g., separately pricing “air rights” “mineral rights” “support rights” etc.)


Owner[DQ127]: My Read of DIBE

•Expectations = O’s at time of investment (reasonable)•Distinct: Specific v. Vague; Separate from Whole •Investment-Backed? Specifically paid for•Penn Central– Air Rights not focus of deal: not distinct or

investment-backed– DIBE in RR Station: No significant interference

b/c RRR


Owner[DQ127]: My Read of DIBE

•Expectations = O’s at time of investment (reasonable)•Distinct: Specific v. Vague; Separate from Whole •Investment-Backed? Specifically paid for•Exam Note: – Owner generally had some DIBE at purchase

(intended uses)– Check if right affected is specific part of DIBE– Check if interference w DIBE is significant

(e.g., no RRR)


OwnerIf My Read of DIBE Correct

•Significance: Protects ag. specific out-of-pocket losses– If O explicitly paid for specific use and state

denied that use, may be Taking– If RRR on intended investment, not Taking

•Suggests different result in Penn Central IF:– O bought parcel last year at higher price b/c of

intent re tower

OR – O purchased air rights alone


OwnerIf My Read of DIBE Correct, If My Read of DIBE Correct,

Tension betw.Tension betw.1.1.Why should result differ depending on Why should result differ depending on DIBE if claims by otherwise identical Os of DIBE if claims by otherwise identical Os of identical lots? identical lots? (Clancy)(Clancy)

2.2.Why should O get compensated when govt Why should O get compensated when govt cuts off other possible uses if Ocuts off other possible uses if O– is still using parcel as intended at purchase; is still using parcel as intended at purchase;

andand– is making a RRRis making a RRR

Penn Central: Takings AnalysisBig Qs Left Open by Big Qs Left Open by Penn Central Penn Central A.A. Noxious UseNoxious Use

B.B.Meaning of Distinct Meaning of Distinct Invest-Backed Invest-Backed Expectations (DIBE)Expectations (DIBE)

C.C. DIBE & DIBE & HadacheckHadacheck




Meaning of DIBE: DifficultiesMeaning of DIBE: Difficulties•Should gifts/inheritances count as zero investment?•Should foregone opportunities count as DIBE:

– PC pays $15 Million for Air Rights = DIBE– If PC turns down offer of $15 Million for Air

Rights = Same?

•How prove distinct & investment-backed? – RR Station in PC built with capability to support

tower. – Majority doesn’t see as evidence of DIBE in tower

(but could)


OwnerDQ134 (fn.13): Dissent: Sees

Difficulties w RRR•Must determine what rate of return is “reasonable” for different types of property•Must determine which piece of property to look at (Denominator Q; we’ll return to in a moment)•ME: Also turns Constitutional Q into Battle of Accountants (re Proving Rate of Return)


OwnerDIBE & PRIOR CASES: Mahon [DQ128]

Majority’s description of Mahon (pp.132): Taking where

Act made mining commercially impracticableNearly same effect as destroying all of rights reserved Note: Doesn’t look at whole parcel (see Denominator Q below)

As described, easy case for signif. interference w DIBE:

Mineral & Support Rights both distinct & investment-backedAlmost all gone = significant interferenceCritical that majority accepts Holmes reading of facts


OwnerDIBE & PRIOR CASES: Miller

•Probably no significant interference w DIBE•Highly unlikely that purchaser would have distinct expectations related to cedar trees•Under Penn Central analysis, might require payment in rare case where big interference w related DIBE (10,000 Cedars)


OwnerDIBE & PRIOR CASES: Hadacheck

•Invested money specifically to build brickworks– Expectations both distinct & investment-

backed– Significant interference; investment in building

now destroyed

•Why is Why is HadacheckHadacheck OK but OK but MahonMahon not OK? not OK?•Prior explanations re public nuisance/noxious use seem to be eliminated by majority’s fn30


B.B. Meaning of Distinct Invest-Backed Meaning of Distinct Invest-Backed Expectations (DIBE)Expectations (DIBE)

C.C.DIBE & DIBE & HadacheckHadacheckD.D. Denominator QDenominator Q



DIBE & DIBE & Hadacheck: Hadacheck: AfterAfter Penn Penn Central, Central, Why is Case Different Why is Case Different

from from Mahon?Mahon?I test this a lot; useful to think about possible answers. Some

examples on next slide.

Penn Central: Takings AnalysisBig Qs Left Open by Big Qs Left Open by Penn Central Penn Central DIBE & DIBE & Hadacheck: Hadacheck: AfterAfter Penn Central, Penn Central,

Why is Case Different from Why is Case Different from Mahon?Mahon?•Because many uses of parcel remain (v. Mahon: complete loss of mineral rights)?•Because Hadacheck is a Miller case (unavoidable choice between brickworks & residential use)?•Because unreasonable to expect to continue harming neighbors ?

– Though looks like noxious use claim again– Also, could say same about Mahon: unreasonable

to cave in



1.Overview2.Relatively Clear Instances of Takings3.Arguments from Purpose

4.Arguments re Harm to Property O

a. Distinct Investment-Backed Expectations

b. Denominator Q5.Means/End Testing


Owner[DQ129] PC: Ordinance =

Taking b/c completely deprived PC of “air rights.”

•Majority addresses this claim even though it says it isn’t clear that “air rights” totally deprived (see discussions of DQ127 & 130)


Owner[DQ129] Majority Response (top p.133)

to PC claim: Taking b/c completely deprived PC of “air rights.”

•Can’t establish a Taking simply by saying can’t exploit a property interest that they had believed they could use•Elimination of one use of parcel not inherently interference w DIBE (see fn. 27) [MAF: would flow from my explanation of DIBE] •Goes on to address Denominator Q


OwnerMajority on Denominator Q (p.133)

“‘Taking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. … [T]his Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole, [here, the city tax block designated as the ‘landmark site.’]” (bold passage in original)


OwnerMajority on Denominator Q: Language looks

like BDS dissent in Mahon (parcel top to bottom)

•Don’t divide a single parcel into segments to determine if whole segment gone•Look at all of parcel affected by regulation –Here whole block that was designated a

landmark –NOTE majority doesn’t look at other nearby

parcels owned by PC, so don’t look at all claimant owns


OwnerMajority on Denominator Q

•BUT Comparing Treatment of Mahon suggests Majority is not just adopting BDS Dissent •May turn on what claimant owns

– Maybe looking at parcel in PC b/c PC owned whole parcel

– Where claimant in Mahon did not own whole parcel, discussion did not look at whole parcel, but only at rights reserved.

•Generally would seem possible to have DIBE in particular segment if pay for separately



C.C. DIBE & HadacheckDIBE & Hadacheck

D.D.Denominator QDenominator QE.E. Heightened Scrutiny for Takings?Heightened Scrutiny for Takings?


Denominator QDenominator Q•Majority on Mahon v. PC Denominator Q Uncertain•Aspect of Denominator Q I’ve Tested a Lot:– Person separately buys two adjacent parcels

and uses together– Challenged regulation affects one of the two– To Measure Reasonable Return/DIBE/Loss in

Value, when should you look just at affected parcel and when at new combined parcel ?



1.Overview2.Relatively Clear Instances of Takings3.Arguments from Purpose4.Arguments re Harm to Property Owner

5.Means/End Testing

Penn Central Takings Analysis: Means/End Testing

Common Type of Constitutional Analysis

•Asks if –Means Chosen (Particular State Law) is

Sufficiently Well-Designed to Achieve …– An End (State Interest) that is

Sufficiently Important



•Asks if –Means Chosen (Particular State Law) is

Sufficiently Well-Designed to Achieve …– An End (State Interest) that is Sufficiently

Important•Rational Basis Scrutiny–Means Chosen Must Be Rationally Related to– Legitimate State Interest



•Rational Basis Scrutiny–Means Chosen Must Be Rationally

Related to– Legitimate State Interest

•Compare Two Forms of “Heightened Scrutiny”: Strict & Intermediate


Rational Basis Scrutiny

• Must be Rationally Related

• to Legitimate State Interest

• Used for Ordinary Legislation (where deferring to legislature)

• Govt Almost Always Wins

Strict Scrutiny

• Must be Narrowly Tailored

• to Compelling State Interest

• Used for, e.g., Lines Drawn on Basis of Race, Religion, Speakers’ Point of View

• Govt Almost Never Wins

Penn Central Takings Analysis: Means/End Testing: Heightened Scrutiny

Intermediate Scrutiny

• Must be Reasonably Necessary

• to Substantial State Interest

• Used for, e.g., Lines Drawn on Basis of Sex; Restrictions on Commercial Speech

• Govt Sometimes Wins

Strict Scrutiny • Must be Narrowly

Tailored

• to Compelling State Interest

• Used for, e.g., Lines Drawn on Basis of Race, Religion, Speakers’ Point of View

• Govt Almost Never Wins


Majority Discussion of Zoning (p.130) •US SCt had previously “upheld land-use regulations that destroyed or adversely affected recognized real property interests” where State gov’t “reasonably concluded” that forbidding particular land use would promote HSWM.–Looks like applying Rational Basis Scrutiny

BUT


• Majority (p.131): “It is, of course, implicit in Goldblatt that a use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose….”

• Looks like Intermediate Scrutiny test• BUT majority never explicitly applies test to

PC facts. • BUT If majority thinks test applies, it must

believe Miller, Hadacheck & Penn Central all pass test.



C.C. DIBE & HadacheckDIBE & Hadacheck


E.E.Heightened Scrutiny for Heightened Scrutiny for Takings?Takings?


Heightened Scrutiny for Takings?Heightened Scrutiny for Takings?•Some Language in Majority Supporting Both Rational Basis and Intermediate Scrutiny•I’ll Talk About Why It Matters in Final Lecture•Can Use Intermediate Scrutiny Test on Exam– Can Cite to Passage in PC re Goldblatt– Should Try to Defend That Use is a Good Idea

for Some or All Takings Cases


I’ll Hang Around to Take Qs or You Can E-Mail Me

Have a good & productive break

Documents

BEST OF BLONDIE (Songs 1977-81) Today: Lecture May Run Over Time; Go Till Done Hold Qs Until After Class No Office Hours Tue-Wed; I’ll Post on Course Page