Unit 13 ARE 306 Regulatory Takings: Condemnation, Regulation and Impermissible Takings of Private Property I. 5th Amendment to the Constitution "nor shall private property be taken for public use, without just compensation." II. Commerce Clause of the Constitution (Article I, section 8[3]) "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes..." III. Contrast with Canada and other countries IV. Eminent domain (Chapter 40A) Only the legislature can confer the power. A. Public use B. Compensation V. Who may take A. Public condemnor B. Private condemnor VI. Procedure A. Prior purchase offer not required B. Notice C. Institution of action and deposit D. Answer to complaint E. Determination of damages and other issues Commissioners used if just compensation sole issue F. Exceptions, appeal Trial de novo from findings of commissioners G. Vesting of title - Quick take - upon filing complaint and making deposit- Public entity for roads, storm sewers, drainage, etc. VII. The concept of inverse condemnation A. No action by public entity B. Attorney fees available in N.C. C. Physical invasion versus noninvasive taking VIII. Physical invasion cases (exactions) Dolan v. City of Tigard, U.S. ,1994 Nollan v. California Coastal Commission, U.S. 1987 Loretto v. Teleprompter Manhattan CATV Corp., U.S. 1982 IX. Regulatory taking Lucas v. South Carolina Coastal Commission, U.S. 1992 X. Exactions (N.C.) Must meet a need created by the developer, and provide a commensurate benefit to the development (schools and general road improvements may not included as legitimate exactions) XI. Takings in N.C. (no takings clause in constitution) - nuisance created by a municipality's emission of sewage into a stream - erection of a structure in violation of a restrictive covenant - concussion caused by blasting to build a sewer - interference with access to a public roadway XII. Compensation - FMV of the property - Partial takings: The higher of (1) the FMV of the property before the taking less the FMV of the property after the taking or the FMV of the property taken. - Offsets are
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