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Eminent Domain And Regulatory Takings Outline

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This is an extract of our Eminent Domain And Regulatory Takings document, which we sell as part of our Property Outlines collection written by the top tier of NYU School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Property Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:


II. Police Power: the underlying govt power. With its police power, the state can: 1) go through eminent domain process and take title. The govt physically takes (occupy) land, and transfers the title from the owner to itself. Must be for public use. Compensation required 2) Pass Regulation, and not pay any compensation. But they can't get title to your property, they just pass some regulation requiring you to do or not do something. a. If a court finds the regulation goes too far, then the court says it is a taking?then govt has a choice. i. Can maintain regulation, go through eminent domain process, (e.g., in Lucas change the title of the beachfront property from Lucas to state of South Carolina and compensate Lucas), or ii. Kill the regulation Eminent Domain A. Main issues: public use and due process. Court is very deferential to states, unless it looks arbitrary and capricious. Must be for the general welfare of the state. B. Broad Categories: a. private property to public ownership, as for a road b. transfers to private parties as part of programs to serve a public purpose---like curing of oligopoly of land ownership (Hawaii Housing Authority v. Midkiff) or blight (Berman). O'Connor describes these as to "cure public harms" in Kelo dissent c. Transfers to private parties such as utitlies, where private entity comes under control of the public d. Cases in which collective action is needed to acquire land for vital instrumentalities of commerce, like railroads C. Economic Development (Kelo v City of New London)---City in bad shape. City Council approved a redevelopment plan and authorized Development Corporation to purchase property or acquire through eminent domain on its behalf. A few property owners challenge in court. SCOTUS upholds the plan. a. Promoting economic development is a traditional and long accepted function of government. It's ok that government pursuit of a public purpose will often benefit individuals. b. Court looks at comprehensive nature of the plan and that it serves a public use. c. Court defers to state legislatures on public use within reason, given different and evolving circumstances and values in different parts of the nation d. O'Connor dissent: this case doesn't fit the prior categories we've permitted Midkiff and Berman were treating public harms. This is not a public harm---creating a benefit. There's always going to be some public use, and beneficiaries are usually the rich and powerful. D. Economic Growth---Govt in Michigan bought out homes in thriving Poletown, Detroit to build a GM for fair market value to build a Cadillac plant (that worked out well!)

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