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Monday, August 21, 2006

Eminent Domain

Posted for Educational Eminent Domain "takings" Compensation

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Eminent Domain: Regulatory Takings
Definition of a "taking"

Categorical or per se regulatory takings

Penn Central test

Minnesota's government enterprise or arbitration test

Development moratorium


Removal of nonconforming uses

The Takings Clause of the Fifth Amendment of the U.S. Constitution provides that private property must not be taken for public use without payment of just compensation. (The clause is made applicable to the states through the Fourteenth Amendment.) Under the Minnesota Constitution, article 1, section 13, private property must not be taken, destroyed, or damaged for public use without payment of just compensation.

Definition of a “taking.” The classic taking is a direct appropriation or physical invasion of private property. Since 1922, however, the courts have recognized that a state statute or local ordinance may impose restrictions or demands on the use of private property that are so onerous that it amounts to a taking and the government must compensate the owner. Lingle v. Chevron, U.S.A., Inc., 125 S. Ct. 2074, 2081 (2005) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)). In these instances, called regulatory takings, the property owner brings an inverse condemnation action to compel the government to begin eminent domain proceedings and compensate the owner. A compensable regulatory taking may be temporary or permanent. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

Categorical or per se regulatory takings. There are two situations in which a court could find that a regulation is clearly a taking—a categorical or “per se” taking. First, if the regulation requires an owner to allow a physical invasion of the property, however minor, the owner must be compensated. Lingle, 125 S. Ct. at 2081 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (state law requiring landlords to permit cable TV companies to install cable facilities in apartment buildings held to be a taking)).

The second situation is when the regulation denies the owner of all economically viable use of the property and the regulation is not merely an explicit statement of common law limitations already present in the title. Lingle, 125 S. Ct. at 2081 (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)).

Penn Central test. Apart from the two situations in which the Court would find a categorical taking or taking per se, there is little guidance on what constitutes a regulatory taking, and courts have relied on ad hoc factual inquiries. Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (historical preservation designation limited development options for railroad station not a taking). In these cases, a court will analyze a regulatory takings claim under a three-part test in which the court, considering the parcel as a whole, looks at:

(1) the economic impact of the regulation on the owner;

(2) the extent to which the regulation interferes with distinct legitimate, investment-backed expectations; and

(3) the character of the government action—does it result in the equivalent of a physical invasion of the property or is it more a “public program adjusting the benefits and burdens of economic life to promote the common good.”

Id.; Johnson v. City of Minneapolis, 667 N.W.2d 109, 114-115 (Minn. 2003) (following Penn Central analysis, court held that the “cloud of condemnation” over Nicollet Mall property in Minneapolis due to drawn out conflict over proposed LSGI development was a taking).

The Court does not look at whether the regulation is an effective way to achieve the stated purpose; the focus is not on the government’s purpose (once public use or purpose is established), but on the impact on the property owner’s rights. Lingle, 125 S. Ct. 2074. Each of the tests for regulatory takings looks for the functional equivalent to an appropriation or physical invasion of private property. Id. at 2084.

Minnesota’s government enterprise or arbitration test. In general, a regulation that diminishes property value alone does not constitute a taking. In Minnesota, however, a regulation that is designed to benefit a government enterprise, such as an airport, and results in a substantial diminution in value, may be a taking. McShane v. City of Faribault, 292 N.W.2d 253 (Minn. 1980) (airport safety zoning ordinance that limited development and caused a substantial and measurable decline in market value was a taking). When a regulation arbitrates between competing uses, the court looks at whether the regulation deprives the property of all reasonable uses before determining that it is a taking. Concept Properties, LLP v. City of Minnetrista, 694 N.W.2d 804, 823 (Minn. App. 2005) (“comprehensive planning objective [is] to balance many public interests and to promote the City’s particular land-use goals and rural values”), rev. denied (Minn. July 19, 2005).

Development moratorium. Local governments have authority to impose a moratorium on development in order to protect the planning process. Minn. Stat. §§ 394.34, 462.355, subd. 4. During the moratorium, a property owner may have limited or no economically viable use of the property. The U.S. Supreme Court has held that under the federal constitution, a temporary regulation that denies all economically viable use of property is not a per se taking. The Court applies the Penn Central factors to determine if the regulation amounts to a compensable taking. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg. Planning Agency, 535 U.S. 302 (2002); Woodbury Place Partners v. City of Woodbury, 492 N.W.2d 258 (Minn. App. 1992) (remanded for determination of whether moratorium constituted a taking under case-specific analysis of Penn Central).

Exactions. An exaction is a government requirement that a landowner dedicate land or a property interest, such as an easement, as a condition for granting a development permit. An exaction may be found to be a taking unless the government shows that there is an essential nexus between a legitimate government interest and the condition exacted. Assuming the nexus exists, there must also be a “rough proportionality” between the planned development and the required dedication. “No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” Dolan v. City of Tigard, 512 U.S. 374, 391 (1994) (permit to expand a store and parking lot conditioned on the dedication of a portion of the property for a greenway pedestrian/ bicycle path held a taking); Nollan v. California Coastal Comm’n, 483 U.S. 825, 831-832 (1987) (permit to build a larger residence on beachfront property conditioned on dedication of an easement for public to cross a strip of property between owner’s seawall and the mean hide tide mark held a taking); see also Collis v. City of Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976) (cited in Dolan); Kottshade v. City of Rochester, 357 N.W.2d 301, 307-308 (Minn. App. 1995) (citing Dolan analysis); Minn. Stat. § 462.358, subds. 2b and 2c (amended in 2004 to incorporate terms used in Dolan).

Removal of nonconforming uses. The 2006 Legislature enacted a number of significant changes to the statutes governing eminent domain in Minnesota. See Minn. Laws 2006, ch. 214, effective May 20, 2006, with certain exceptions. One of the changes requires a local government to compensate the owner of a nonconforming use if the local government requires its removal as a condition of granting a permit, license, or other approval for a use, structure, development, or activity. This provision does not apply if the permit, license, or approval is for construction that cannot be done unless the nonconforming use is removed. Minn. Stat. § 117.184.

August 2006

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Posted by SharonScarrellaAnderson to ademocracy at 8/19/2006 09:27:31 AM


Anonymous Anonymous said...

Posted 22 Aug 2006 09:13 by Charlie Swope

The city is buying out some businesses on University Ave. One property is a
pornography operation, another is the A-1 Vacuum Cleaner store and the third is
a liquor store. In addition to getting rid of the pornography shop, this is
apparently part of a new commercial development by the Welsh Cos. Does anyone
know the details of this? That is, how much will the developer be paying for
the property the city is acquiring?

I don't know what is going to be erected in the place of these businesses so
I'm not prepared to condemn this. But I will miss the A-! Vacuum Cleaner store.
They had the best inventory of parts in the area and were a goldmine of good
information. Just the kind of unique business that makes University Ave. a
facinating place and that is fast disappearing.

And while the pornography shop may be unappealing, one thing you have to say in
its favor is that patrons of these places tend to be quiet. If you object to
noise and must live next to a commercial establishment, you're better off
living next to a porn shop where the patrons go out of their way not to be
noticed and more or less sneak in and END

Is this guy for real? What is he preparing himself for in the decision to condemn? Aaaawwh, the poor vacuum cleaner store has to move, but I'm sure he was paid an adequate sum. How about all the people whose houses and investments were taken away, you know their homes! Maybe this person should live next to the porn shop if he thinks that it so much safer than a house with a broken switchplate cover. What is fast disappearing is affordable housing in the area, so who cares what they're building there. It's only going to line the pockets of the big developers, who I'm sure will profit big time with the amount that they spent aquiring the land that their retail/condo project sits on.

And then someone posed a question after this original post as to why the City is buying out the businesses and not the developers, which is a good question, anyone care to respond?

1:57 PM  
Anonymous Anonymous said...

The city should stay away from trying to be real estate moguls-let the market work itself.The city aways says no developer will come here and invest(meaning:buy up a block and re develop)WELL why should they when the city will do it for ya.The city will pick a corner or block in the city buy or take it and then hand it off to a developer for pretty much free.Then the city will go around their project area and use their excessive code enforcement and rid the area of undesirables.(If ya know what I mean)Its all fine and dandy if it isn't you.When will this town wake up?

8:02 PM  
Anonymous Anonymous said...

I made a living for 15 years doing psinting almost exclusively for landlords and I would not invest a dime in St. Paul with the way the citys inspection department goes after the landlords for nothing but minor crap. What the city does not understand yet is that if the tenant wanted the house fixed, then they would call the landlord. The reason they do not call the landlord is because they do not want to pay the rent. At this point the city comes out and makes a big laundry list out of nothing for the tenant to use in court as evidence so the judge will give them a break on their rent. It is high time someone sued them. I hope they go bankrupt.

10:49 PM  
Anonymous Anonymous said...

Now I understand what you mean by these edems. I can't understand a thing this ding bat wries. who is this sharon anderson anyway?

12:11 AM  
Anonymous Anonymous said...

Well, actually Edem (E-democracy) is the other site with posters on it that usually side with the city ("St. Paul issues only please") on every issue and at that site most agree that it is far better to demolish a home than to find out the reason behind it being condemned in the first place.

And if you don't agree with them, or if you get angry because of the pig-headedness there, you will be consored and given a reprimand. I think someone was even swated on the hand once. It came right out of the hard drive. No but seriously now.

This site was started as a "spin off" of that site. Only we get better ratings and won't be cancelled at the end of the season.

If you'd like the address for the site, ask and I'm sure someone will post it for you.

Sharon Anderson is a person who has been hurt in the past by beauracracy, I'm sure anyway, I don't know too much about her but she seems to want everyone to know their rights when it comes to property, etc. That is why she chooses to post information and sites where one can find out these things and most are full of legal mumbo jumbo, I know, But she must be pretty intelligent, don't you think?

9:16 AM  
Blogger Bob said...

I agree with Anonymous 7:16.

I want to clarify one thing though. There is over 400 members of Edemocracy. There is about 20 regular posters including myself.

There is just a hand full of people post involved with entrenched politics who try to control the dialog.

You could say that it is us regular posters at Edemocracy who draw the membership.

I and many of the other posters enjoy Sharons input. When I stated at Edemocracy that most don't read Sharons post and Steve only brought it into the light, I went on to say that it was for the most part legal stuff that most of us couldn't comprehend.

She is a sharp lady. Crazy, yeah like a fox. I believe she is feared by some for exposing issues she has had concerning her personal life.

I like Sharon, I appreciate the things she has done for me personally.Sharon is my FRIEND!

And frankly she can comment here as often as she wants. I'll even post a title and paste her comment.

9:45 AM  
Anonymous Anonymous said...

Sharon don't let the city forget they stoled her Summit Ave Home.

10:20 AM  

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