Property II Professor Donald J. Kochan

1. Property IIProfessor Donald J. Kochan Spring 2009 Class 53 13 April 2009

2. Today’s Readings • Regulatory Takings • Pages 1006-1041 • Lucas • Palazzolo • Tahoe-Sierra • Oral Arguments in Penn Central and Lucas

3. 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

4. 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

5. 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

6. 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/

7. 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

8. 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/

9. 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