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***the US govt. has the power to force a citizen to sell (ex: if the citizen's land is needed for a road, they cannot, by refusing to sell, require the road to be built elsewhere)
***property owner must receive its fair market value in exchange for loss of use |
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***under the 5th and 14th Amendment of US Constitution, govt. can take private property for necessary govt. use as long as it pays the property owner "just compensation"
***refers to situations in which a regulation denies the property owner all "economically viable use of his land"
***Such takings, which amount to eminent domain by the back door, were in the spotlight at the Supreme Court in 2006, when oral argument took place on a pair of cases emanating from Michigan
***the first involved a Midland developer, John Rapanos, who had been fined millions of dollars for filling in 3 parcels of property alleged to contain wetlands
***The second involves developers June and Keith Carabell, who were prevented from building a 112-unit condo complex in suburban Detroit after regulators determined it might jeopardize the “navigable waters” of the United States.
***But the Carabell development is more than a mile from any recognizable navigable water. In the Rapanos case, navigable water is at least 20 miles away. With the addition of Chief Justice John Roberts and Associate Justice Samuel Alito, observers are betting that the Supreme Court may be even less sympathetic to the argument that any trickle of water amounts to a “navigable” river. |
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| Lucas v. SC Coastal Council |
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***1986--David Lucas paid $975,000 for two residential lots on Isle of Palms, SC
***1988--SC enacted Beachfront Management Act
***Act barred Lucas from building houses on the property
***SC State Court found that the act rendered Lucas' property valueless
**question is whether the Act accomplished a regulatory taking
***5th Amendment provides in part "nor shall private property be taken for public use without just compensation"
***When government regulation of private property "goes too far" and deprives the landowner of the value of his land through enactment of a statute, promulgation of a regulation, refusal to issue a permit, or declaration of land as a wetland, as endangered species habitat or as unsuitable for mining, such a taking also may be compensable. This is known as a regulatory taking or inverse condemnation
***In Lucas v. South Carolina Coastal Council, the Supreme Court ruled that a regulation that forbade construction on the owner's land thus depriving him of all economically beneficial uses constituted a per se taking unless the proscribed use interests were not part of the title originally
***In other words, a law or decree with the effect of depriving all economically beneficial use must do no more than duplicate the result that could have been achieved in the courts under the law of nuisance. |
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| ***a property has been so over-regulated that the government may have well condemned it. Often, an affected property owner will ask a court to force the govt. to commence condemnation proceedings |
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Term
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***legal principle derived from English Common Law
***waters of the state are a public resource owned by and available to all citizens equally for the purposes of navigation, conducting commerce, fishing, recreation, and similar uses, and that this trust is not invalidated by private ownership of the underlying land
***applies when there is a conflict between public and private uses of navigable waters and their shores
***common-law doctrine of property law, customized by each state, which establishes public rights in navigable waters on their shores
***premised on the fact that such waters and shores have been used as common areas for food, travel, and commerce since time immemorial
***in some states, public rights may also be exercised on private lands. The legal interest of the public is determined by balancing public and private rights and interests. |
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