Law Commons^™

The U.S. Government Taking Under Eminent Domain: When Just Compensation Is Unjust (Comment), Michael Perez

The Scholar: St. Mary's Law Review on Race and Social Justice

The true effects of private takings do not occur in a vacuum and are not solely academic in nature. The consequence of losing property implicates loss of income, loss of value in residual property, and loss of familial land. The importance of protecting the rights of individual land-owners becomes increasingly apparent when analyzing the effect of the taking.

This comment will explore how the government’s taking of private property occurs—including how the government has loosened restrictions and procedural hurdles. The analysis will focus specifically on processes, policies, and statutes, created and used by the federal government to facilitate takings necessary …

Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger

Touro Law Review

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate

Rethinking "Just" Compensation: Dignity Restoration As A Basis For Supplementing Existing Takings Remedies With Government-Supported Community Building Initiatives, Alyssa M. Hasbrouck

Cornell Law Review

Longstanding calls for the Supreme Court to revisit the Takings Clause's just compensation requirement are especially relevant in light of urban renewal's destructive history. However, the just compensation requirement should be viewed as a floor, not as a ceiling. Even in the absence of formal action by courts, legislatures and local governments can act to fulfill the government's constitutional obligation of "full and perfect" compensation. By taking preemptive action to support community-based initiatives, financially as well as politically, the same legislatures that seized and destroyed urban neighborhoods can begin to set things right. Court-ordered investments in the longterm well-being of …

Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier

Maine Law Review

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this …

Preventing Franchise Flight: Could Cleveland Have Kept The Browns By Exercising Its Eminent Domain Power?, Steven R. Hobson Ii

Akron Law Review

The purpose of this Comment is to analyze whether Ohio law would allow for such a taking, and to determine if such action would have solved the problem of keeping the Browns in Cleveland. In analyzing this issue and focusing on the difficulties that such a taking would create, it will be demonstrated that this taking probably cannot be achieved successfully, and that some congressional intervention is needed to rectify the franchise relocation problem.

The Price Of Protection: Compensation For Partial Takings Along The Coast, Matthew Hromadka

Touro Law Review

No abstract provided.

The Art Of Stripping: How The Government Applies The Takings Clause To Strip You Of Your Property, Toni Kong

Touro Law Review

No abstract provided.

Still An Issue: The Taking Issue At 40, Patricia E. Salkin

Touro Law Review

In October 2013, with the launch of Touro Law Center’s new Institute on Land Use and Sustainable Development Law, the Touro Law Review held a symposium to commemorate the 40th anniversary of “The Taking Issue: A Study of the Constitutional Limits of Governmental Authority to Regulate the Use of Privately-Owned Land Without Paying Compensation to the Owners” (The Takings Issue), the Council on Environmental Quality’s seminal report by Fred Bosselman, David Callies and John Banta. For this symposium Touro Law Review assembled some of today’s leading luminaries to reflect on how the taking issue has evolved and to assess where …

Agins V. City Of Tiburon: Open Space Zoning Prevails - Failure To Submit Master Plan Prevents A Cognizable Decrease In Property Value, Jermaine Chastain

Pepperdine Law Review

This casenote examines the Supreme Court's struggle to reconcile its focus on the facial validity of a zoning ordinance with the traditional "taking" approach requiring diligent factual inquiry. While the Agins Court reiterates such an approach, the author notes the Court's departure from important constitutional and precedential considerations. The author offers a possible explanation for the departure, concluding that the Agins decision apparently makes plan submission a prerequisite for acknowledging economic loss and strongly implies a requirement of complete loss of all property value before a compensable taking will be recognized.

Eminent Domain For The Seizure Of Underwater Mortgages, Sarah Thompson

University of Michigan Journal of Law Reform Caveat

Like many cities in the United States, Richmond, California suffered greatly from the recent mortgage crisis. The foreclosure crisis hit Richmond hard in 2009, when more than 2,000 homes in Richmond went into foreclosure. This figure is especially shocking given that there were 18,659 owner-occupied housing units in the city at that time. In 2012, the city saw an additional 914 foreclosures and a foreclosure rate of thirty out of 1,000 homes (well above the national average of thirteen of every 1,000 homes). Today, it is reported that nearly forty-six percent of homes in Richmond are “underwater,” meaning that what …

One May V. The 800-Pound Gorilla: An Argument For Truly Just Compensation In Condemnation Proceedings, Allison Minton

West Virginia Law Review

No abstract provided.

Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

A Congressional Call To Arms: The Time Has Come For Congress To Enforce The Fifth Amendment's Takings Clause, Mark W. Smith

Oklahoma Law Review

No abstract provided.

Takings Clause

Touro Law Review

No abstract provided.

Eminent Domain Date Of Valuation In Ohio, John Lombardo

Cleveland State Law Review

This article is devoted to analyzing the interpretations and applications that Ohio courts have given to the mandate of "just compensation." Particular emphasis will be given to the date of valuation of this "just compensation," and the relevance of a change in market value of the property to be taken due to activity or delay of the appropriating authority in the area of the taking prior to the date of taking.

"Fair Market Value," "Just Compensation," And The Constitution: A Critical View, W. Harold Bigham

Vanderbilt Law Review

It has become almost an article of faith that "fair market value"constitutes the only fair and workable measure of damages for a landowner whose real property has been taken for public use. The courts apply it woodenly;' the magic words are solemnly intoned to jurors, commissioners, and arbitrators. Even the learned scholars in the field give it at least implicit recognition. Moreover, it continues to flourish despite widespread public dissatisfaction with both the substantive test for damages and the procedures through which the land is obtained. The taking of private property for the federal interstate highway and urban renewal programs, …

Depreciation Damages In Eminent Domain Proceedings, Kevin Duffy

Cleveland State Law Review

The individual's right in eminent domain proceedings are spelled out by the United States Constitution-specifically, Amendment V, which provides that private property shall not be taken for public use without just compensation. Of course, the seeming simplicity of this constitutional provision belies the complexities involved in its application. For example, it is well settled that "just compensation" for a given piece of property must be measured interms of the fair market value of that property. But market values of real estate are apt to fluctuate even under normal conditions, and their behavior when a public acquisition is in the offing …

Just Compensation For Real Estate Condemnation, Thomas L. Dettelbach

Cleveland State Law Review

The purpose of the requirement of just compensation contained in the United States Constitution, where private property is taken for public use, is to place the financial losses caused through public improvements on the public rather than entirely upon those who happen to lie in the path of the project. Since the nation is proliferating with everexpanding highways and urban renewal programs, and these programs involve the exercise of the power eminent domain, controversies related to fair value for property taken are numerous. Relatively few cases in modern times reach the Supreme Court, but through previous decisions, affirmed or cited …

Quasi-Contracts-Waiver Of Tort-Suit Against Governmental Agency

Michigan Law Review

County officials forcibly ejected plaintiff from five acres of his land, harvested and used plaintiff's oat crop thereon, and converted the land into a road. Held, that although a county, being an agency of the State, is not liable in tort in the absence of statute, the tort may be waived and recovery allowed on the implied promise to pay for the taking of private property for public use without just compensation. Kerns v. Couch, (Or. 1932) 12 Pac. (2d) 1011.