Property
Class Notes
We
left Nollan with the idea that
regulation is a taking unless it advances a state interest and does not deny
the owner of all economically viable
use of the property.
Back to Lucas
This
is kind of an odd case because we’re not quite sure what the statute
means. The Supreme Court assumes that
the statute means what the
What’s
the holding of this case? The U.S. Supreme
Court reversed the South Carolina Supreme Court and found for Lucas. Let’s assume that the value of Lucas’s land
has gone down to $0, that is, 100%.
The
Court says that Lucas is entitled to fair market value.
Say
you have a nuclear power plant, and suddenly it’s discovered that the plant is
located on an earthquake fault and thus it’s very dangerous to people in the
vicinity. This is not a taking, because this
use was always a nuisance. It’s just
that we didn’t know at the time that it was a nuisance.
The
right to create a nuisance is not part of the “bundle of sticks” of property
rights. You always take the risk as you
develop property that a nuisance will develop such that the cost of fixing it
zeros out the net value of the property.
If
there’s a taking, just compensation is required, though it may be quite small.
Wasn’t
the
How
does Scalia get around that? Can state governments
create new and novel nuisances?
If
you distrust the state, and it’s clear that Scalia does, you have to be
concerned with what prohibits the state from saying: “You want a nuisance? I got yer nuisance right here!”
Scalia
tries to get around it thus: if something was a nuisance in the 19th
century, it’s okay to regulate it without running into the Fifth Amendment. If it’s always been considered a nuisance,
then the state can regulate it. On the
other hand, Scalia says: “Don’t just go back and declare something a nuisance
all of the sudden. You’ll have to show
something special about this property before you can say that it would be a
nuisance to build on it.”
But
the problem with this, according to Braunstein, is that it limits the legislature
in terms of discovering new nuisances.
What Scalia must be saying is that the Court will defer to the common
law of nuisances, but if the legislature starts creating new and novel
nuisances they will be scrutinized carefully to make sure they’re not just
trying to weasel their way out of the Fifth Amendment.
The
nuisance exception is tough to limit.
The legislature can say anything it wants is a nuisance. All we’re left with is that the question of
whether something is a nuisance must be judged against the background of state law. That’s fine, but as new things are discovered
that constitute nuisances, it’s going to be difficult or impossible to regulate
those nuisances without paying just compensation.
Footnote
11: what’s it all about? It’s the
denominator problem! Scalia recognizes
its existence, but doesn’t do much to help solve it. He does two things:
1. He says the
2. If the state clearly
recognizes that one “stick” in the “bundle” is an important property right,
that may form the relevant denominator.
But
overall, he pretty much just gives up and says “It’s a tough problem!”
What
about footnote 12? Justice Stevens says
the “100%” rule is arbitrary. Say Lucas
had been deprived of 95% or 99% of the productive economic value of his
property. Why should he be deprived of
the benefit of this rule?
Say
you have two neighbors. Say one neighbor
has 100% of their property over the no-build line, while the other neighbor has
a sliver of land on the “build” side
of the “no-build” line. Then the first
neighbor gets 100% compensation, and the second neighbor gets nothing.
How
does Scalia deal with this problem?
First, he says basically “life is tough”. This seems like an unsatisfactory answer to
Braunstein.
It’s
hard to know what it means to be deprived of 100% of value. The state didn’t do much to say what Lucas
could still do with his land, but there may have been something productive he could have done. It’s hard to believe he couldn’t have done anything.
However,
the rule is easy to state. If you are
deprived of 100% of the economically productive value of your land, it’s a
taking and you’re entitled to just compensation unless the regulated use of the
land constitutes a nuisance under established
(not “new and novel”) state law.
The State ex rel. R.T.G., Inc.
et al. v. The State of Ohio et al.
Braunstein
says this is a good summary of what the law is,
even if we may disagree with the fairness of the result.
RTG
decides that there’s some land in
The
Ohio Department of Natural Resources comes in and declares some of the land
unsuitable for mining on the basis that mining would have a negative impact on
wells that provide water to towns near the mine.
The
lower court rules that the fee land hasn’t been taken even though they can’t
mine under it. All that means is that
this isn’t a per se take. So the lower
court applied Penn Central
and found it wasn’t a take.
On
the other hand, the leasehold land had lost all its value because its only value was to mine coal. Thus, 100% of the value has been taken and
the Lucas test is applied.
What
Braunstein likes about the case is that they go through and talk about both
tests. First, they look at the Penn Central test,
which has three factors:
1. The nature of the governmental
regulation
2. The economic impact of the regulation
3. The extent of the
interference with the “distinct investment backed expectations” of the landowner
The
third factor was pretty clear: they had recently spend a lot of money to get
access to the land to mine coal, which was legal at the time they acquired the
land.
This
ad hoc analysis applies only when the
deprivation is less that 100% of the economically beneficial use of the property.
Then
the court goes on and talks about the per se test, which involves one of the
following:
1. Physical invasion - Loretto
2. Denial of all[1] economically beneficial or productive
use of land – Lucas
If Lucas applies, there’s a
taking unless the regulated conduct constitutes a nuisance under established
state law.
The
court also tackles the denominator problem.
The numerator is the portion of the property that has been taken by the regulation
(this is the easy part). The denominator
is the property interest that is subject to the regulation. If the resulting fraction is equal to one,
then there is a per se taking.
Otherwise, the regulation will be judged under the factor test of Penn Central.
This
goes pretty far: it seems that the fraction will always be one when the state
says “you can’t mine that coal”.
Use
this as a helpful summary of everything we’ve been working on so far.
Now,
what we have to do is figure out which of these two apply. Braunstein likes this better than the Preschool
case because the analytical framework is set up better.
In
this case, we must define the denominator both in the vertical and horizontal
planes.
The denominator in the
vertical plane
Is
the relevant parcel the surface and
the coal, or just the coal? The court cites
Penn Central
but refuses to follow it. Other cases
have criticized the rule. The court says
that the constitution of a state can grant rights that are above the minimum
set by the U.S. Constitution.
The
court decides to look at the coal as
the relevant parcel because there is a tradition in
The denominator in the horizontal
plane
The
court finds that the relevant parcel in the vertical plane is the coal—the sub-surface
rights. But what about the horizontal plane?
It
turns out that 20% of the coal is outside the “unsuitable for mining area”. The court says that economies of scale make
mining outside of the UFM
commercially impractical. But there’s no
factual support for that in the case.
The case also seems to be internally inconsistent to Braunstein (he bets
that you can find economically productive coal mines of 100 acres or less). Therefore, the court says that the relevant
parcel is the coal locating in the UFM area.
What
the court has done in order to determine the denominator in the horizontal
plane is to ignore the coal that RTG can mine. The court claims that the economics of coal
mining are such that the 20% outside of the UFM becomes worthless due to this
regulation.
Braunstein
is especially suspicious of the use of the “all” from Lucas. He doesn’t thing all really means all in
this case.
The
analysis wraps up by claiming that there hasn’t been a nuisance, and thus there
has been a taking of both the leasehold coal and the fee simple coal.
Wrapping up RTG
What
do we get out of this case? It’s a good
analytical summary of the rules and the circumstances in which they apply. Also, no matter how hard you try, the
denominator problem is very difficult and one that is really left up to the
discretion of judges.