Music: Alberta Hunter Amtrak Blues (1980) CHLORINE: DQ111 –Collett, Andrea –Darville, Renée –Tomlinson, Trey –Moskal, Tommy HELIUM: 20’s Cases –Morgan, Chris –Davis, Justin –Yannuzzi, Chris –Peña, Belia

Miller & Sax p.98 “… the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. …

Miller & Sax … It would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked….

Miller & Sax … When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

Miller & Sax NOTE: Choice between two conflicting land uses (= arbiter case) is OK even if state has a very strong interest in choosing one over the other. Can’t be true that the better the state’s reasons, the more likely it has to pay compensation.

Miller & Sax … When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.”

Miller & Sax NOTE: Court allows state legislature to make this choice. Court does not say it is the job of federal courts to make it.

Miller & Sax Case says choice here is “between the preservation of one class of property and that of the other….” –NOT between any two private interests –NOT between public and private interests

Uranium DQ111 What rules can you derive from Miller? CHLORINE DQ111

Uranium DQ111 What rules can you derive from Miller? Can choose between one kind of property and another in public interest In choosing, can prefer public interest even to the extent of destruction of one kind of property Effect of Miller on meaning of Hadacheck? CHLORINE DQ111

Uranium DQ111 Effect on meaning of Hadacheck? Explicitly reaffirms Hadacheck Says don’t need to be technical about nuisance Seems to characterize Hadacheck as a destruction of property case Can take value to 0 where choosing one kind of property over another Effect of Miller on meaning of Mahon? CHLORINE DQ111

Uranium DQ111 Effect on meaning of Mahon? Clarifies that Mahon didn’t overrule Hadacheck Reciprocity not necessary; none here Can take value to 0 where choosing one kind of property over another Maybe suggests don’t look at smallest possible unit of property (trees) Maybe makes Mahon small case about explicit contract CHLORINE DQ111

HELIUM: OTHER 1920s CASES Thrust of Euclid?

HELIUM: OTHER 1920s CASES Euclid upholds facial validity (under police power) of modern comprehensive zoning scheme Significance to the line of cases we’ve read?

HELIUM: OTHER 1920s CASES Euclid upholds facial validity (under police power) of modern comprehensive zoning scheme Significant deference to legislative choices & line-drawing (in the abstract).

HELIUM: OTHER 1920s CASES Euclid: “[I]t may … happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. …

HELIUM: OTHER 1920s CASES Euclid: … But this … happens in respect of many practice ‑ forbidding laws which this court has upheld, although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. The inclusion of a reasonable margin, to insure effective enforcement, will not put upon a law … the stamp of invalidity. …

HELIUM: OTHER 1920s CASES Euclid: … Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation.”

HELIUM: OTHER 1920s CASES Thrust of Nectow?

HELIUM: OTHER 1920s CASES Nectow finds unconstitutional the application of a similar zoning scheme to a particular parcel Significance to the line of cases we’ve read?

HELIUM: OTHER 1920s CASES Nectow finds unconst. the application of a similar zoning scheme to a particular parcel No good where eliminated profitable use of lot *AND* not in furtherance of police power interests

HELIUM: OTHER 1920s CASES Nectow finds unconst. the application of a similar zoning scheme to a particular parcel No good where eliminated profitable use of lot *AND* not in furtherance of police power interests PRETTY NARROW LIMIT!

Exam Technique Workshops Tomorrow 1:00-1:45 Room 209 Thursday 12:35-1:45 Room 109 Not Substantially Different from Prior Years’ Versions Available Online on Academic Achievement Website Thursday’s Session will be Taped and Posted

Transition : Alberta Hunter

Before Michaelman: Intro to Penn Central (DQ116: Fajer) WEDNESDAY: NEONS DQ117

DQ116: Intro to Penn Central Gov’t action at issue? Purpose? Limits on the use of property? Uses still permissible? Harm to the petitioners? Demsetz Takings story?

DQ116: Intro to Penn Central Gov’t action at issue? NYC ordi- nance to preserve historic bldgs. Places some obligations on owners (good repair/maintain exterior use) Tries to preserve reasonable rate of return. –i) owners can transfer development rights to other nearby lots they own –ii) tax breaks

DQ116: Intro to Penn Central Purpose? Tourist $$$; Civic Pride NYC Bankruptcy I ♥ NY

DQ116: Intro to Penn Central Limits on the use of property? Uses still permissible? Need gov’t approval before structural changes; must maintain properly. Can do anything you were doing before designation; can do structural changes if approved.

DQ116: Intro to Penn Central Grand Central Stn designated historic site. Penn Central (RR) owns. Harm to RR? RR wants 55-story tower above station. Landmark Bd disapproves: "aesthetic joke". Financial Loss: About $2 million/yr in rent –BUT can sell TDRs to make up some –RR concedes that it can still earn reasonable return running station as is. Qs on Facts?

Michaelman: Cost/Benefit Analysis of Decision Whether to Compensate Once state has decided to regulate, there’ll be winners & losers. Do you compensate the losers?

Michaelman: Cost/Benefit Analysis of Decision Whether to Compensate Compensate the losers if : Costs of Compensating less than Costs of Not Compensating

Costs of Compensating = “Settlement Costs” INCLUDES: Cost of paying claimant Cost of paying everyone like claimant Costs of administering payment scheme –E.g., 8% per pair of blue jeans –Focus on costs of processing; valuing

Costs of Compensating = “Settlement Costs” LIKELY TO BE HIGHEST WHEN … Lots of claimants Claims intangible or otherwise hard to value

Costs of Not Compensating = “Demoralization Costs” INCLUDES: Upset to losing party Upset to similarly situated parties Upset to sympathizers Can manifest as –Disincentives to future investment –Lack of faith in gov’t & resulting behavior

Costs of Not Compensating = “Demoralization Costs” Focus on likely public reaction.

Costs of Not Compensating = “Demoralization Costs” LIKELY TO BE HIGHEST WHEN … People see as unfair or arbitrary Relatively few people bearing very high burdens not seen as relating to their own behavior