Transcript Current Issues in Takings and Vested Rights (Powerpoint)

Damien M. Schiff
Pacific Legal Foundation
Takings Tests
 Physical taking (categorical)
 Third-party physical taking (categorical)
 Deprivation of all economically viable use (categorical)
 Regulation has gone “too far”
 Economic impact
 Reasonable investment-backed expectations
 Nature of regulation
The bundle of sticks
 The parcel as a whole
 Background principles
 Public trust doctrine
 Nuisance
 Reasonable and beneficial use
R&J Holding Co. v. Redevelopment Auth.
 Williamson County
 Final decision
 Denial of compensation
 Avoiding preclusive merger
Town of Nags Head v. Toloczko
 Discretion over the remedy, including declaratory
judgments
 Sensitive issues of state law, including land-use
regulation
Banks v. United States
 Six years from date of accrual
 Government-accelerated erosion
 Rule of stabilization
 Substantial encroachment
 Damages are reasonably foreseeable
Estate of Hage v. United States
 Exhausting the permitting process
 The futility exception
 N.B. Williamson County partially irrelevant
 Water rights as usufructuary rights
Casitas Mun. Water Dist. v. United States
 Physical versus regulatory takings
 Public trust, reasonable use, and in-stream uses
 Right to storage versus right to beneficial use
Otay Mesa Props. LP v. United States
 First English Evangelical Lutheran Church versus
Tahoe-Sierra Preservation Council
 Permanent versus temporary easements
 Valuation
 Before and after
 Fair market rental
Ark. Fish & Game Comm’n v. U.S.
 Generally a federal issue
 Permanent or temporary policy?
 What’s wrong with a tort remedy?
Henderson v. City of Columbus
 Proximate causation
 Substantial cause and effect relationship
 Strict liability
Mehaffy v. U.S.
 Palazzolo v. Rhode Island
 Reasonable investment-backed expectations
 Reset even within family
 Windfall avoidance
Besaro Mobile Home Park v. San Clemente
 Due process interlude
 The excessive rents/fair return rationale
 Pennell v. City of San Jose: protection of consumer
welfare a legitimate interest supporting price controls
 Pervasively regulated industries
Avenida San Juan P’ship v. Fremont
 Spot zoning
 Degree of economic impact
 Nature of government action
Severance v. Patterson
 Public beach easements
 Rolling easements
 Erosion versus avulsion
Besaro Mobile Home Park v. City of Fremont
 Nollan/Dolan
 Essential nexus
 Rough proportionality
 Real property versus money
Vested Rights
 Common law rule
 Development Agreements
 No exemption from state and federal regulations
 Normal rules of contract interpretation
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