LAW
Con Law 2 Sal F16.docx

C holding yes i it is the owners loss not the takers

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c. Holding : Yes. i. It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken. ii. The landowner owns at least as much of the space above the ground as they can occupy or use in connection with the land. iii. Griggs – Congress can’t redefine private property to suit its own means. They can however, redefine the area surrounding property (the curtilage). iv. The Government’s action was “as complete as if the US had entered upon the surface of the land and taken exclusive possession of it.” 3. Nollan v. California Coastal Commission , 1987 a. Facts : Family wanted a building permit. The local government made the permit contingent on the granting of an easement across the property to reach a public beach. b. Issue : Does this constitute a taking? c. Holding : Yes. i. While requiring the easement without compensation would clearly violate the law, does the granting of the permit alter the outcome? ii. No. There needs to be a nexus between the restriction and the solution. The Court finds there is no nexus and therefore this is not a valid use of the land use power. iii. There is a taking if “the condition…utterly fails to further the end advanced as the justification.” Thus, Government conditions placed on development can constitute a taking. 4. Dolan v. City of Tigard, OR , 1994 a. Facts : Involves the application of the nexus. A hardware store in Oregon wanted to rebuild and expand on the existing property. The Government said ok, BUT you have to leave room for the flood plain and a bike path. b. Issue : was this a taking? c. Holding : Yes. Affirms Nollan and created the two part test below. 5. Essential Nexus Test : AKA Rough Proportionality 12
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a. First, is there a nexus between the legitimate state interest and the permit condition created by the city? b. Second, whether the exactions on development were roughly proportionate to the government’s justifications for regulating? ii. What constitutes for public use? 1. The 5th Am only authorizes takings for public use . If the taking is deemed to be for private use, the taking is invalidated and returned to the owner. But the Court has interpreted public use broadly. 2. Kelo v. City of New London, CT a. Facts : Economically depressed city sough, through a private economic development corporation, to take private property for purposes of a new economic development project. b. Issue : Did the sale to a private party constitute public use? c. Holding : Yes. A taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. Use the Rational Basis Test. This was met because the city’s action reasonably believed this taking would create over 1,000 new jobs and increase economic growth even though a private party would take the property.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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