SCOTUS Cases The Conflict Eminent Domain vs. Police Power Early Cases – A History that Matters •        Dunn v. Illinois (1877) –        A landmark decision that paved the way for future governmental intervention in private development. Mugler v. Kansas (1887) –        THE case establishing the distinction between ED and PP.  Outlawing use for purposes that were injurious to community could not constitute a taking. Other Early Events •        1879 - NYC Tenement House Law - legalized railroad flats and banned anything worse •        1907 - Hartford Commission on a City Plan -- The first, official, local and permanent town planning board in the US! •        1909 - LA passes a zoning ordinance Other Early Events •        Eubank v. City of Richmond (1912) -- Setback legislation declared OK •        1916 - NYC passes the first comprehensive zoning code •        1925 - Cincinnati passes the FIRST officially adopted comprehensive plan forming a legal connection between planning and zoning •        Pennsylvania Coal Co. v. Mahon (1922) -- regulation that "goes to far" requires compensation The BIG One Village of Euclid v. Ambler Realty Co (1926) –        Supreme Court upheld the RIGHT of suburb to adopt a comprehensive zoning ordinance.   –        It limited Ambler's land to low density residential instead of the industrial uses Ambler was planning for.   –        Police Power. Penn Central v NYC •        Pennsylvania Central Transportation Co. v City of New York (1978) •        Penn Central wanted to build a tower on top of the historically protected Grand Central Station •        The City said, “No.” •        So Penn Central said, compensate us or let us build it. •        The City said, “No.” •        The Supreme Court said... Grand Central Station What’s on top of Grand Central Station??? NOTHING Penn Central v NYC •        Penn Central Transportation Co. v City of New York (1978) •        A 3-Part Formula still used in determining when a taking has occurred •        Takings cases require two tests:  1) court must look at the effect of the regulation on the entire property not just a segment, and 2) the owner must be denied any reasonable use.  This was not a taking. 3 Part Test •        Part 2 actually includes separate 3-part test. •        It looks at –        a) character of government action, –        b) (actual) economic impact on the landowner –        c) the existence or lack of reasonable investment-backed expectations. Agins v Tiburon (1980) •        Small town passes ordinance to protect open space.  This limits Agins to 5 lots on their 5 acres.  The courts suggested that this was a legitimate exercise of municipal authority.  The owners were not deprived of all (100%) economic value, no taking, no compensation.  (Was confusing to some because it did not use the three step test it had just created in Penn) Keystone •        Keystone Bituminous Coal Association v. DeBenedictus (1986) –        Found that a law protecting property owners from surface subsidence by requiring retention of roof pillars did not deprive coal miners of all "economically viable use" of their property. (Failed second test)  Also stressed the importance of having a legitimate governmental purpose. Glendale •        First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987) –        After flooding and fires destroyed some campgrounds and buildings on property, county passed a temporary moratorium on construction in "environmentally sensitive area".  Owner sought damages.  The courts devised "temporary taking".  This gave landowners new leverage in disputes with zoning boards. Nollan v CCC - Nexus •        Nollan v. California Coastal Commission (1987) –        Permit condition must relate to harm to be avoided –        Nollan wanted to tear down a beach bungalow and rebuild it.  But the CCC attempted to require an easement across the property before permitting the rebuild.  SC ruled that this was not a sufficient governmental purpose nor did it have sufficient NEXUS (link or connection).   Lucas v South Carolina Coastal •        Lucas v. South Carolina Coastal (1992) –        The court actually ruled that the government purpose WAS sufficient but that it deprived the property owner of ALL value of the land.  Thus it was a taking unless it was a nuisance law principle. Dolan v Tigard - More Nexus •        Dolan v. City of Tigard (1994) –        A developer wanted to remove and replace a plumbing and electric supply store.  In order to allow the expansion, the city asked for an easement for bike lanes citing added runoff and need for greenspace.  SC said… No free ride •        Apply the nexus test and ask, what is the connection between an upgraded store and a greenway?  NEXUS test again. –        SC said that NEXUS test was the key between a taking and a reasonable limit of use. –        Why a repeat of Nexus? Police Power vs. Eminent Domain •        So far, these cases have focused primarily on whether the police powers had gone too far •        When they overstepped their regulatory limits, the government had taken things for which they needed to compensate •        But what happens when they compensate without needing to take at all? Kelo v. New London •        Susette Kelo et al. v. City of New London et al. (2005) –        An integrated development plan to revitalize an ailing economy required the condemnation of private homes –        Development to be undertaken by a private developer (but owned by city) and would profit private interests –        The Court held that "the city's proposed disposition of this property qualifies as a 'public use' within the meaning of the Takings Clause of the Fifth Amendment." •        Significant fallout •        Towns (and developers) feel emboldened by support of Supreme Court •        Individuals feel threatened •        Election issue?