Government Ownership

1. Government Ownership 29% of the land in the U.S. is owned by the federal government • Includes 66% of the state of Alaska • More than 50% of the land in many state west of the Rocky Mountains • 65% of the land west of Denver, but only 2% of the land east of Denver Is this constitutional? • State v. Federal ownership ch 13 Regulation of Land Use

2. Government Ownership Much of the land now owned by the federal government came to it as states were formed and admitted into the union. Originally, the federal government’s objective was to get the land into private hands as quickly as possible. The sale of the land was helpful in retiring debts that accumulated during the Revolutionary War. ch 13 Regulation of Land Use

3. Government Acquisition of Property Three methods of acquisition • Escheat – intestate succession • Dedication – giving to the government as in streets in a subdivision • Eminent Domain ch 13 Regulation of Land Use

4. Eminent Domain • An inherent right of the sovereign • In the US, recognized in the 5th amendment. • Incorporated to the states by the 14th amendment Due Process Clause • Tennessee Constitution: No man’s property [shall be] taken, or applied to public use, … without just compensation being made therefor. ch 13 Regulation of Land Use

5. Eminent Domain – outside the U.S. • Expropriation – a government seizes a privately owned business or privately owned goods for a proper public purpose and awards just compensation. • When a government seizes private property for an illegal purpose and without just compensation, the taking is referred to as a confiscation. • Sovereign immunity and/or Act of State Doctrine will prevent recovery in a U.S. Court. ch 13 Regulation of Land Use

6. Eminent Domain Subject to two restrictions • Public Use • Private property rights vs. government authority • Legislative v. Judicial?? • Just Compensation ch 13 Regulation of Land Use

7. Hawaii Housing Auth. v. Midkiff - 1984 • The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. • Government does not itself have to use property to legitimate the taking.

8. Kelo v. City of New London – 2005 • Whether a city’s decision to take property for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment. • The determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. • Because that plan unquestionable serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment. ch 13 Regulation of Land Use

9. The Backlash - TCA • It is the intent of the general assembly that the power of eminent domain shall be used sparingly, and that laws permitting the use of eminent domain shall be narrowly construed • Public use shall not include either private use or benefit • This shall be construed to protect the private property rights of individuals and businesses… ch 13 Regulation of Land Use

10. But, a court cannot substitute its own judgment of necessity for that reserved to the legislative branch. • Tn Court of Appeals - 2012

11. Just Compensation • The general rule is that “just compensation” means that the government must pay fair market value. • FMV is not • The value that the owner places on the property • Removal or relocation costs • Subjective or emotional dmages • Loss of profits or goodwill

12. Taking Inverse condemnation is the cause of action brought by a property owner to recover the value of real property that has been taken for public use even though no formal condemnation proceedings under the power of eminent domain have been instituted.

13. Taking Regulatory takings are found when there is a physical invasion onto the property. This is a per se taking. New York statute which required landlords to install CATV cable facilities on the roof of their buildings; the facilities were part of a city-wide cable network designed to bring cable services to the entire city.

14. Taking When there is no physical invasion, there is no bright line rule or formula for determining when a regulation “goes too far.” • Factors include: • Economic impact of regulation • Interference with reasonable investment backed expectation • Character of the regulatory action

15. NOT a Taking • New York City Landmark Preservation Commission rejected Penn Central's proposals for construction of a high rise building atop the Grand Central Terminal. • A moratorium on construction of individual homes imposed by the Tahoe Regional Planning Agency.

16. Takings • Landowner was subjected incessant low-level military flights well below the federally recognized aviation airspace. • Beachfront Management Act effectively deprived Landowner of his ability to erect homes on his properties.

17. Restrictive Covenant • Arestrictive covenant is a contract regarding the use of land among generally private landowners. • Such covenants are property interests that run with the land and usually arise from a series of overlapping contractual transactions. • Accordingly, they should be viewed as contracts and construed using the rules of construction generally applicable to the construction of other contracts. ch 13 Regulation of Land Use

18. RC v. Easements • An easement is an interest in the land, but a covenant is a contractual promise concerning the use of the land. • Similar to an easement appurtenant in that the restrictive easement “runs with the land” • RC can be enforced by and against successive title holders. • Purpose/Objective. To maintain continuity, which should stabilize property values. ch 13 Regulation of Land Use

19. Restrictive Covenants Examples No further subdividing Window treatments Mailboxes Dog houses Pets Beekeeping Square footage Building materials Color of building materials Fences Garages ch 13 Regulation of Land Use

20. Creation of Restrictive Covenants • Written: Usually listed in a separate document that is executed and recorded before any lots in the subdivision are sold. Reference is then made in each deed to the recorded covenants. States an intention that it run with the land • Must touch and concern the land – affects its value • Privity of Estate: grantor and grantee ch 13 Regulation of Land Use

21. Interpretation of Restrictive Covenants Restrictive covenants are in derogation of common law and will be narrowly construed against restriction. ch 13 Regulation of Land Use

22. Enforcement • Originally, enforced by individual landowners in the same development – under the same restriction • Now, they are more commonly enforced by Homeowners’ associations. • Change in neighborhood: • Some owners violate the restrictions. “Acquiescence of prior violations of the very substance of a general plan or particular restriction” will be held to be a waiver of rights. • Change outside the area. Would enforcement really maintain the nature of the property, or has the nature of the property changed so much that the restriction doesn’t do anything? • Racially discriminatory covenants • Using the courts to enforce would be state action and invoke the constitution. Equal protection clause of the 14th amendment • Other discriminatory covenants may violate federal statutes. Fair Housing Act. ch 13 Regulation of Land Use