ELEMENTS B1 & B2 POWER POINT SLIDES

ELEMENTS B1 & B2 POWER POINT SLIDES Class #38: Tuesday, November 22, 2016 National Cranberry Relish Day

BLONDIE 4(0)-EVER(Songs 1977-81) NOW ON COURSE PAGE • Comments & Best Answers for Q3 Exam Bank OFFICE HOURS • Today (newly added) • 9:45-10-45 • 12:45-2:45 • Sat. 11/26 1-4 p.m. • Sun. 11/27 1-4 p.m.

CLASS #38 Completion of PC Analysis Review Problem 3B (Krypton) Review Problem 3C(i) (Oxygen) Ackerman

Penn Central: Takings Analysis Structure of Penn Central Takings Analysis • Overview • Relatively Clear Instances of Takings • Arguments from Purpose • Arguments re Harm to Property O • Distinct Investment-Backed Expectations • Denominator Q • Means/End Testing

Penn Central Takings Analysis: Arguments re Harm to Property Owner If 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

Penn Central Takings Analysis: Arguments re Harm to Property Owner If My Read of DIBE Correct, Tension betw. • Why should result differ depending on DIBE if claims by otherwise identical Osof identical lots? versus • Why should O get compensated when govt cuts off other possible uses if O • is still using parcel as intended at purchase; and • is making a RRR

Penn Central: Takings Analysis Big Qs Left Open by Penn Central • Noxious Use • MEANING OF DISTINCT INVEST-BACKED EXPECTATIONS (DIBE) • DIBE & Hadacheck • Denominator Q • Heightened Scrutiny for Takings?

Penn Central: Takings AnalysisBig Qs Left Open by Penn Central Meaning 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)

Penn Central Takings Analysis: Arguments re Harm to Property Owner DQ3.41 (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)

Penn Central Takings Analysis: Arguments re Harm to Property Owner DIBE & PRIOR CASES: Mahon [DQ3.35] Majority’s description of Mahon (p.142): Taking where Act made mining commercially impracticable Nearly 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-backed Almost all gone (per Holmes) = significant interference Critical that majority accepts Holmes reading of facts

Penn Central Takings Analysis: Arguments re Harm to Property Owner DIBE & PRIOR CASES: Miller • Probably no significant interference w DIBE • Highly unlikely that purchaser would have distinctexpectations related to cedar trees • As I suggested, under Penn Central analysis, might require payment in rare case where big interference w related DIBE (10,000 Cedars)

Penn Central Takings Analysis: Arguments re Harm to Property Owner DIBE & PRIOR CASES: Hadacheck • Invested money specifically to build brickworks • Expectations both distinct & investment-backed • Significant interference; investment in building now essentially destroyed (can’t go condo in 1915) • Why is Hadacheck OK but Mahonnot OK? • Prior explanations re public nuisance/noxious use seem to be eliminated by majority’s fn30

Penn Central: Takings Analysis Big Qs Left Open by Penn Central • Noxious Use • Meaning of Distinct Invest-Backed Expectations (DIBE) • DIBE & HADACHECK • Denominator Q • Heightened Scrutiny for Takings?

Penn Central: Takings AnalysisBig Qs Left Open by Penn Central DIBE & Hadacheck: After Penn Central, Why is Case Different from 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 Penn Central DIBE & Hadacheck: After Penn Central, Why is Case Different from 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 re Mahon: Unreasonable to cave in.

Penn Central Takings Analysis: Arguments re Harm to Property Owner [DQ3.36] Pet’r: Ordinance = Taking b/c completely deprived us of “air rights.” • Majority addresses this claim even though it says it isn’t clear that “air rights” totally deprived (see discussion of DQ3.34 & 3.37)

Penn Central Takings Analysis: Arguments re Harm to Property Owner [DQ3.36] Majority Response (p.143) to Pet’r claim: Taking b/c completely deprivedusof “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

Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q (p.143) “‘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. …

Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q (p.143) “‘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; missing in my edit)

Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority 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

Penn Central Takings Analysis: Arguments re Harm to Property Owner Majority on Denominator Q • BUT Comparing Treatment of Mahon suggestsMajority is not just adopting BDS Dissent • May turn on what claimant owns • Maybe looking at parcel in PC b/c Pet’rowned 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

Penn Central: Takings Analysis Big Qs Left Open by Penn Central • Noxious Use • Meaning of Distinct Invest-Backed Expectations (DIBE) • DIBE & Hadacheck • DENOMINATOR Q • Heightened Scrutiny for Takings?

Penn Central: Takings AnalysisBig Qs Left Open by Penn Central Denominator 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 ?

Penn Central: Takings Analysis Structure of Penn Central Takings Analysis • Overview • Relatively Clear Instances of Takings • Arguments from Purpose • Arguments re Harm to Property Owner • 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

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 • Rational Basis Scrutiny • Means Chosen Must Be RationallyRelated to • Legitimate State Interest

Penn Central Takings Analysis: Means/End Testing Common Type of Constitutional Analysis • Rational Basis Scrutiny • Means Chosen Must Be RationallyRelated to • Legitimate State Interest • Compare Two Forms of “Heightened Scrutiny”: Strict & Intermediate

Penn Central Takings Analysis: Means/End Testing Rational Basis Scrutiny 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 • Must be Rationally Related • to Legitimate State Interest • Used for Ordinary Legislation(where deferring to legislature) • Govt Almost Always Wins

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

Penn Central Takings Analysis: Means/End Testing Majority Discussion of Zoning (p.141) • 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

Penn Central Takings Analysis: Means/End Testing • Majority (p.142): “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.

Penn Central: Takings Analysis Big Qs Left Open by Penn Central • Noxious Use • Meaning of Distinct Invest-Backed Expectations (DIBE) • Denominator Q • DIBE & Hadacheck • HEIGHTENED SCRUTINY FOR TAKINGS?

Penn Central: Takings AnalysisBig Qs Left Open by Penn Central 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

FINAL EXAM QUESTION 3Review Problem 3B (Krypton) FROM EXAM QUESTION IIIE (2000) • Gore Bush is a cash crop b/c source of industrial lubricant Goreseed Oil (GO). • Widespread distribution of recipe for explosives using GO  use in crime & inflation of GO prices • C buys Goreseed farm for $5 Million • State bans GO to reduce criminal uses • Value of C’sfarm drops to $2 Million

FINAL EXAM QUESTION 3

FINAL EXAM QUESTION 3Review Problem 3B (Krypton) HARD Q FROM XQIIIE (2000) Should a state have to pay compensation to landowners whose property value is reduced significantly when the state bans production of a product or growing of a crop to prevent harmful or illegal uses of the product/crop where • the product/crop in question has both legal and illegal uses; and • the landowners’ methods of producing/growing of the product/crop in question cause no direct harms to the landowners’ neighbors?

FINAL EXAM QUESTION 3Review Problem 3B (Krypton) HARD Q FROM XQIIIE (2000) Should a state have to pay compensation to landowners whose property value is reduced significantly when the state bans production of a product or growing of a crop to prevent harmful or illegal uses of the product/crop where • the product/crop in question has both legal and illegal uses; and • the landowners’ methods of producing/growing of the product/crop in question cause no direct harms to neighbors?

FINAL EXAM QUESTION 3EXAM QUESTION IIIF (2001) Parking Garages at Shreveport Airport • A buys one (B) and builds one on adjacent lot (C) • Post 9/11 Security Rules shut down garage on (C) • Value of (C) drops: $350K $100K (Signif. Intf. w DIBE) • Value of B + C together increases from $1M to $1.5M (Almost certainly no Taking) Monday: Analyze B & C together or separately? Today: Assume We Are Just Looking at (C) “Right: Totally at (C)”

FINAL EXAM QUESTION 3Review Problem 3C(i) (Oxygen) FROM EXAM QUESTION IIIF (2001) Assume We Are Just Looking at Garage (C) • Taking if…? • State bans the current use of the land; • Property value reduced significantly (assume significant interference w DIBE); • BUT Targeted harm is misuse of land by third parties

FINAL EXAM QUESTION 3Review Problem 3C(i) (Oxygen) FROM EXAM QUESTION IIIF (2001) Assume We Are Just Looking at Garage (C) • Taking if…? • State bans the current use of the land & property value reduced significantly; BUT • Targeted harm is misuse of land by third parties • Different from Rev. Prob. 3B re targeted harm: • Harm would be located on regulated parcel itself. • BUTDoesn’t flow directly from O’s intended use. Arguments from Authorities & Takings Policy

FINAL EXAM QUESTION 3Review Problem 3C(i) (Oxygen) FROM EXAM QUESTION IIIF (2001) • Taking if…? • State bans the current use of the land & property value reduced significantly; BUT • Targeted harm is misuse of land by third parties • Different from Rev. Prob. 3B re targeted harm: • Located on regulated parcel itself (should help gov’t) • Doesn’t flow directly from O’s intended use (should help O)

Takings Theorist #4: Bruce Ackerman & DQ3.44-3.46(Krypton)

Takings Theorists: Bruce Ackerman DQ3.44 (Krypton) Ackerman Distinguishes Between: • “Scientific Policymakers” use technical concepts; abstract principles (e.g., Michelman!!) • His focus on “Ordinary Observers,” which asks how people in the culture tend to think about property. (Asks very specific Qs)

Takings Theorists: Bruce Ackerman DQ3.44 (Krypton) Focus on “Ordinary Observers” • Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. • 1st Q: “Is property in Q literally ‘taken’?” • Source: Literal Language of 5thAmdt. • Two situations where OO would answer “yes”?

Takings Theorists: Bruce Ackerman DQ3.44 (Krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. • Is property in Q literally “taken”? Means either: • Literally gone completely (like an ordinary enterpriser case).

Takings Theorists: Bruce Ackerman DQ3.44 (Krypton) Ackerman asks very specific Qs re how people in the culture (OOs) tend to think about property. • Is property in Q literally “taken”? Means either: • Literally gone completely (like an ordinary enterpriser case). • What’s left is so trivial, “bad joke” to say you still have property. Examples of “bad joke” cases from those we’ve looked at?

ELEMENTS B1 & B2 POWER POINT SLIDES