Private Property For Public Use Research Articles

Pandemic Takings: Compensating for Public Health Emergency Regulation

The COVID-19 pandemic led all states to issue regulations aiming to limit the spread of the coronavirus and reduce morbidity and mortality. Alongside the impediments that the “stay at home” and social distancing regulations imposed on citizens’ freedom of movement, worship, and leisure, they also interfered, sometimes significantly, with owners’ property rights. Most states ordered closure of non-essential businesses; some prohibited or suspended evictions of residential and commercial rentals, and others restricted beach access, preventing beachfront owners from using their property. The COVID-19 regulations’ harmful economic effects led owners from states all across the country to bring legal challenges to these regulations. Among other claims, owners argued that the regulations violated the Fifth Amendment to the United States Constitution, because the regulations constituted a taking of private property for public use without the payment of just compensation. This article argues that although current takings jurisprudence may pose considerable legal challenges for property owners, establishing owners’ Fifth Amendment claims for compensation for the economic damages resulting from the COVID-19 regulations is not at all unfounded. While regulating property in emergencies is often considered within the state police power, thus relieving the government from paying compensation to owners, there may be circumstances where emergency property regulation would constitute a takings, requiring the government to compensate owners. To further this argument, the article proposes a theory that allows lawmakers and courts to better distinguish between the state’s police power and its eminent domain power. The proposed theory suggests that although the state’s police power is designed to allow the government to regulate property to respond to emergencies efficiently and effectively, such regulation may nevertheless exceed the state police power if it imposes a disproportionate burden on property owners. In such cases, takings claims may become the most significant means by which property owners can cope with emergency property regulation.

Evaluating Emergency Takings: Flattening the Economic Curve

Desperate times may breed desperate measures, but when do those desperate measures undertaken during emergencies trigger the Fifth Amendment’s requirement that the government provide just compensation when it takes private property for public use? The answer to that question has commonly been posed as a choice between the “police power” — a sovereign government’s power to regulate and restrict property’s use in order to further the public health, safety, and welfare — and the eminent domain power, the authority to seize private property for public use with the corresponding requirement to pay compensation. But that should not be the question. An invocation of police power does not answer the compensation question at all, but is merely the predicate issue: all government actions must be for the public health, safety, or welfare, in the same way that an exercise of eminent domain power must be for a public use. In “normal” times, it is very difficult to win a regulatory takings claim for compensation. In the midst of emergencies — real or perceived — the courts are even more reluctant to provide a remedy, even where they should, and emergencies are a good time to make bad law, especially takings law. This article provides a road-map for analyzing these questions, hoping that it will result in a more consistent approach to resolving claims for compensation that arise out of claims of emergencies — real or perceived. This article analyzes the potential takings claims stemming from emergency measures, mostly under current takings doctrine. What type of claims are likely to succeed or fail? Can a better case be made analytically for compensation? Part I summarizes the economic “flattening the curve” principle that motivates takings claims for compensation. Part II sets out the prevailing three-factor Penn Central standard for how courts evaluate claims that a health, safety, or welfare measure “goes too far,” and requires compensation as a taking, examining the character of the government action, the impact of the action on the owner, and the extent of the owner’s property rights. Deep criticism of Penn Central is beyond the scope of this article, and I will not here do more than accept it as the “default” takings test. But I do argue that the government’s motivation and reason for its actions — generally reviewed under the “rational basis” standard — should not be a major question in takings claims. Rather, as this article argues in Part III, the government’s emergency justifications should be considered as part of a necessity defense, and not subject to the low bar of rational basis, but a more fact and evidence driven standard of “actual necessity.” Part IV attempts to apply these standards and examines the various ways that emergency actions can take property for public use: commandeering, occupations of property, and restrictions on use. I do not conclude that the approach will result in more (or less) successful claims for compensation, merely a more straightforward method of evaluating emergency takings claims than the current disjointed analytical methods. In sum, this article argues there is no blanket immunity from compensation simply because the government claims to be acting in response to an emergency, even though its reasons and actions may satisfy the rational basis test. Instead, claims that the taking is not compensable because of the exigency of an emergency should only win the day if the government successfully shows that the measure was actually needed to avoid imminent danger posed by the property owner’s use, and that the measure was narrowly tailored to further that end.

The Right to Fair Compensation under “The Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013”

This paper is mainly focused on compensation and its protection under Indian Constitution, judicial approach and development of concept of compensation, relevant principles of compensation mean general rules whose application enables us to determine the market value. The problem of valuation and determination of present market value in relation to lands and buildings under laws relating to Land Acquisition. Cases decided by the the Supreme Court in Bela Banerjee v. State of West Bengal 2 and State of West Bengal v. Subodh Gopal Bose 3 is deeply analyzed to test the law providing for acquisition or extension of interest of private owners in properties. It is observed that the power of the sovereign to take private property for public use and the consequent rights of the owner to compensation are well established. In justification of the power, two maxims are often cited Salus Populi est Supreme lex (regard for the public welfare is the highest law) and Necessities Public a major est quam Privata (Public necessity is greater than private necessity). The Land Acquisition Act seems to be very special as much legislations are based on it; facilitating awaited industrialization, giving a solution to unemployment4, widening the divide between urban and rural5, threatening environment and propagating disguised unemployment6etc. The tops-turvy journey of Indian Supreme Court has been swaying in between the idea of ‘Social Justice’, ‘Distributive Justice’, land reforms and Zamindari abolition by compensatory acquisition of land. But in doing so the achievement of Indian Supreme Court has that one size fit all type of computation formula for calculation of compensation cannot be applied to each and every case. The Judiciary has discussed all pros and cons of various types of valuation method. However due to variety of properties and allied attachments, one type cannot be applied to each case uniformly.

BeyondKelo

AbstractThe power of government to take private property for public use has been a frequent source of political disquiet because of the tension it creates with notions of individual rights ingrained in liberal society. The backlash against takings afterKelooffers a case in point. Existing research has focused on the public’s distaste for the taking of homes and has thus missed an important cause of the backlash: the purpose for which property is taken. I utilize a combination of experimental and observational methods to advance our understanding of this important issue, finding that purpose is crucial in shaping attitudes toward takings.

Regulatory Takings Rights or Relations?

This Article uses tools from legal geography to investigate the Takings Clause, a provision in the U.S. constitution that prohibits the government from taking private property for public use without providing compensation. This area of law is gaining renewed attention from legal scholars given recent Supreme Court interpretations that evidence heightened doctrinal confusion in what was already a convoluted area of constitutional law. From a geographer’s perspective, the Court’s interpretations perform something more problematic — the challenge associated with employing the concept of “rights” in relation to the state’s capacity to occupy and police space. An examination of the Takings Clause demonstrates the problems associated with employing the concept of “property rights” and suggests that the concept of relations would perhaps be a more appropriate way to conceptualize interactions between cultural expectations, property owners, and the material world.

Factors Influencing Variation in Value and Investor Confidence

The valuation profession is critical for the property market in emerging markets. The purpose of this study is to determine the factors that cause discrepancies in the actual value stated in valuation report. This paper included Thailand and Malaysia as representative of valuation professionals in Asian counties to perceive the effective use of valuation standards, methodologies, and processes. The commitment to ethical conduct also addressed. A comprehensive review of previous studies related to standards, process and ethical conduct of valuers in several counties were presented. The findings contribute to the perceived of importance factors which significantly affect the decrease in variation in value and increase in investor confidence. Regression analysis was used to test the hypotheses; the two dependent variables were tested including the Variation in Actual Valuation and Investor Confidence. The valuation is the most important document in the loan process. Banks require valuation for the collateral customers offer for loans. Valuation is also required for tax assessments, when the government acquires private property for public use, appraising the assets of publicly listed companies, or when financial institutions evaluate non-performing loans (NPLs). During the Asian Financial crisis in 2008, ineffective valuation practices were readily apparent. Money was lent based on grossly overvalued collateral. This exemplifies the need for professional valuation practices and an ethical approach to the behavior of valuers. This limitation resulted in improper practices in the valuation of the property sector (Brett 2010). According to Rothacker (2008) banks were pressured valuers to inflate the value of homes. This allowed lenders to offer larger loans. Price estimates were further influenced by client pressure to inflate or reduce the actual price. The main problems of valuation are gaps in the valuation process which negatively impact investor confidence, ethical issues, and the lack of enforcement of standards which reduces the effectiveness of the valuation process in Asian countries. However, Thailand and Malaysia were selected as representative countries in this study. The research problem focuses on several major issues which are: 1. The valuation industry is growing but the attention to standards and ethics is low. 2. Discrepancies in the actual valuation negatively impacts investor confidence 3. The unethical behavior of valuer that overstates the value of a property. 4. The law and its enforcement does not support professional standards This will determine the factors that impact on the variation in value and investor confidence of valuations in Thailand and Malaysia. The role of a property valuation law in valuation practice will be considered. Malaysia has established this law Thailand has not. Valuation Profession in Thailand

In and Out of Public Solution: The Hidden Perils of Property Transfer

Government power is often used to transfer resources between individuals and the state. On some occasions the state takes private property and places it into public solution; in others it alters the policies pertaining to the use of government lands without changing its legal ownership; and in others it disposes of public lands to private parties. Each of these three activities can be evaluated under a standard that asks whether the acquisition, use or distribution of these resources improves overall social value. Tested by that standard, the rules of acquisition are conducted under standards that typically short-change owners by ignoring the subjective value of the property or the consequential losses inflicted by government use. Changes in land use practices for public lands are politically divisive but are typically undertaken without any effective measure of whether the changes improve overall good. Distributions of public assets to private hands often involve giveaways that move resources to lower-valued uses. A sensible rendering of the just compensation component of the takings clause could protect against many of the abuses associated with the acquisition of private property for public use. A competitive bidding system could control much of the abuse on the distribution of public property for private use. But it is very difficult to come up with any administrative or constitutional scheme that affords sensible oversight over the highly important but less visible task of regulating the patterns of use of public lands.

'Takings' and 'Damagings': A Return to the Original Meaning of Article I, Section 22 of the Utah Constitution

Utah, like nearly every other state in the Union, has a constitutional provision similar to the Just Compensation Clause of the Fifth Amendment to the United States Constitution. And like those of many other states, Utah’s Constitution guarantees just compensation not only in situations where the government takes private property for public use, but also in instances where the government damages private property for public use. A problem has arisen, however, regarding how the Utah Supreme Court has interpreted these two important provisions.In interpreting the Utah Constitution in scenarios other than those involving the Utah Just Compensation Clause — article I, section 22 — the court has consistently taken a strong position that its purpose is to determine the meaning of the text that would have been understood by Utah’s founding generation. But analyzing the court’s current interpretation of article I, section 22 suggests that the court has not adhered to an originalist approach. Rather, the court has created a confusing framework that convolutes the concepts of a “taking” and a “damaging” as originally understood. For instance, the court has taken notion of causation — that should go to the question of whether something has been taken or damaged — and imported it into the concept of “public use.” Moreover, the court has held that in order for a governmental action to qualify as a damaging under article I, section 22, there must be a physical injury to the property — a requirement that clearly precludes the ability to claim that property interests have been damaged. Although there is some basis in early Utah caselaw for these requirements, the court has made no serious attempt at justifying its framework in terms of originalism. Nor has it attempted to reconcile the fact that these requirements are expressly at odds with the understanding of Utah’s framers as expressed in the Convention. This Paper will set out to provide some course correction in order to establish a conceptually clear framework for assessing takings and damagings that is more consistent with the text and original meaning of article I, section 22.

Chapter 5: Law and regulation

Chapter 5: Law and regulation

The Asymmetry of State Sovereign Immunity

This article discusses whether a State has sovereign immunity from claims for just compensation. The article concludes that the States are indeed immune from just-compensation suits brought against them in federal court; States are not necessarily immune, however, from just-compensation suits brought against them in their own courts of general jurisdiction. Thus, the States' immunity in federal court is not symmetrical to the States' immunity in their own courts. This asymmetry, the article explains, is the result of the Due Process Clause of the Fourteenth Amendment. The Due Process Clause obligates a State to provide just compensation every time the State takes private property for public use. A State may be able to meet that obligation through a non-judicial compensation scheme. If a State fails to establish an adequate non-judicial scheme for providing just compensation, the State's remedial obligation falls upon the State's courts. A State's courts thereby play an important role in enabling the State to meet its due process obligations. Unlike a State's own courts, the federal courts cannot enable a State to meet the State's due process obligations. Thus, the existence of a federal-court remedy does not excuse the State's failure to provide its own remedies. By the same token, the absence of a federal-court remedy for a State's failure to pay constitutionally required just compensation does not imply the absence of a remedy in the State's own courts. For this reason, the Supreme Court case law indicating that States are immune from just-compensation suits brought in federal court does not support recognizing a similar immunity in a State's own courts.

Avoiding Regulatory Wipe-Outs: Proposed Model Legislation for a Local Mechanism

Abstract During the last two decades, landowners and public agencies have been contending on two fronts over the right to compensation whenever land-use or environ-mental regulations are alleged to effect a taking of private property for public use without just compensation. On one front, litigation has proliferated in state and federal courts throughout the country, and while government has prevailed most of the time, notable successes have been achieved by landowners, particularly in the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit. See e.g., Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), 46 ZD 232; Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992); Nollan v. California Coastal Comm'n, 107 S. Ct. 3141 (1987), 39 ZD 226; Loveladies Harbor, Inc. v. United States, 28 F. 3d 1171 (Fed. Cir. 1994), 47 ZD 48.

Recovering Corporate Assets Through Environmental Lawsuits

Over the past decade many environmentally motivated restrictions and withdrawals have been carried out at the expense of private property owners, most of whom seemed to have no effective recourse. This paper (1) summarizes a recent case in which a Michigan oil operator and several mineral owners fought back, winning a judgment worth $120 million from the State of Michigan, and (2) analyzes the essential geotechnical procedures, particularly those involving stochastic exploration risk analysis, required to determine and to justify the plaintiff`s claims for monetary damages. The intent is to provide encouragement and guidance to other private property owners, especially those involved in mineral resources, who may be contemplating similar legal actions. The Fifth Amendment to the US Constitution prohibits the taking of private property for public use without just compensation, and the 14th Amendment forbids the state to deprive any person of property without due process of law. Nevertheless, most knowledgeable attorneys generally conceded that the law concerning takings of private property by state regulatory restriction has been murky and uncertain at best.

A Critical Reexamination of the Takings Jurisprudence

The U.S. Constitution forbids both the federal and state governments from taking private property for public use in the absence of just compensation.1 In determining whether particular government actions require compensation, the members of the U.S. Supreme Court have agreed that the purpose of the constitutional compensation requirement is bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.2 The members of the Court have also agreed that whether justice and fairness require compensation will turn upon a two-step inquiry. First, government action that involves either a permanent physical occupation or a denial of all economically viable use establishes a per se taking and will always require compensation. Second, for government action that does not involve a per se taking, the Court will resolve the compensation issue by an ad hoc balancing of five or six specific factors.3 Despite agreement as to both the purpose of the compensation requirement and the correct approach to resolving the issue, the Court has had considerable trouble resolving the specific cases before it.

The State's Police Power is Not (Yet) the Power of a Police State: A Reply to Professor Girard

Abstract In his two-part series entitled “Constitutional ‘Takings Clauses’ and the Regulation of Private Land Use,” 34 LAND USE L. & ZONING DIG. No. 10 at 4 and No. 11 at 4, Professor Robert Girard examined the relationship (or, as he sees it, the lack thereof) between overly stringent land use regulation and the constitutional proscription against taking private property for public use without paying compensation.

Eminent Domain: Urban Renewal: Broader Powers to Take Private Property for Public Use

Eminent Domain: Urban Renewal: Broader Powers to Take Private Property for Public Use

Eminent Domain and the Requisition of Property During Emergencies

OLITICAL SCIENTISTS have long been concerned with the problem of adjusting liberty and authority. Many are agreed that the operation of a democratic system of government can be well understood only when continually viewed in this context. Students of government recognize that the task of maintaining a balance between governmental power and the citizens' freedom is never really completed, since new conditions constantly create the need for striking a new balance. The most that we can hope for is the maintenance of some semblance of an equilibrium which meets the needs of a given time. In recent years it has been difficult indeed to balance the claims of individual rights and governmental necessity, largely because of the serious economic depression and the emergency conditions created by World War II and the fighting in Korea. Economic and military mobilization which has been justified in terms of preservation of the nation clashes at many points with the interests of individuals and of groups. Concern over this fundamental matter is evidenced by the tremendous volume of literature now appearing on such subjects as espionage, loyalty programs, communism, the extent of economic controls, the size of the military establishment, and academic freedom. It is well known that during periods of peace as well as of emergency it may be necessary for the government to take private property for public use or to restrict the individual's freedom to deal with his property. In such situations the clash between the individual and his government is dramatically defined in bold relief. However, with the exception of references to this subject in discussions of the Steel Seizure Case, very little attention has been directed by either political scientists or legal scholars toward the evaluation of current developments in eminent domain and the requisition of property during emergencies. And although the Steel Seizure Case continues to be one of the most widely discussed cases in recent years, the comments are directed principally toward the scope of the President's constitutional powers rather than toward the subject of eminent domain. It is the purpose of this essay to examine the topic of eminent domain, with special reference to the more recent developments. Some material relating to the origin and evolution of the power of eminent domain has been included, since it is felt that greater insight into the present-day practical and theoretical problems will be thus afforded.

Constitutional Law: Taking Private Property for Public Use: Control of Airspace

Constitutional Law: Taking Private Property for Public Use: Control of Airspace

Eminent Domain. Operation of an Electric Power Station, Injurious to Nearby Property, as a Taking of Private Property for Public Use without Compensation

Eminent Domain. Operation of an Electric Power Station, Injurious to Nearby Property, as a Taking of Private Property for Public Use without Compensation

Constitutional Law Taking Private Property for Public Use. Forbidding the Use of Land for Advertising Purposes. Quaere, as to the Right in Virginia to Tax Advertising

Constitutional Law Taking Private Property for Public Use. Forbidding the Use of Land for Advertising Purposes. Quaere, as to the Right in Virginia to Tax Advertising

Constitutional Law. "Taking or Damaging" Private Property for Public Use

Constitutional Law. "Taking or Damaging" Private Property for Public Use