property law: april 22 2010 class notes.

penn coal v. mahon

noxious use of land -
in determining the public interests here, holmes is making a very consciencous choice in the choice of plaintiff: MAN -- what's man's interest in his house... what's other ways to look at this
1) the coaler act doesn't speak to "man's" house, it speaks to habitations where all sorts of people might go
2) brandies says: you can carve up something so that the act would diminish the value in all the property

we have an issue of a devaluation of a property. holmes says it's a diminution in the value of use. brandeis says its a drop in the vaule of the whole thing. the lower the value, the more likely a taking and then the public's interest will be decreased in the land in general.

holmes: the public doesn't have an interest in man's house
brandeis: that isn't even the issue!


holmes is focusing on the acts of particular parties with respect to their particular property and how that is not comparable to the

the kohler act is not at issue. just who should pay is.

this case's take away: with the same principles, facts and doctrine to guide, holmes and brandeis come out with different results. this is a problem for people who think that laws should be predictable. 

penn central v. NYC

does the landmark's preservation law determine a taking?
brennan says that since there's no formula we read haddaceck and mahon:
1) land-use regulations that promote the health, safety, morals and general welfare of the public, even though they prohibit the most

basically,
1) did you buy your land in reliance on what you could do with your land?
2) does the regulation restrict your reasonable expectation of what you could do with your land?

here, brennan says that taking is related to taking of the whole of your property. in loretto they said it was a taking to a tiny tiny part.

the relevant denominator for takings claims... is this consistent with loretto? what was significant about the taking of the 1/8 of an inch of space on loretto's building?

police powers. the public use element of the takings clause is reiterated in kelo, and public purpose is stated very broadly. the language actually comes from penn central:

- if the regulation furthers public purpose, then there hasn't been a taking.


after penn cental, we just care whether or not a taking is within the state's power to proscribe. what reciprocity of advantage? in penn coal, holmes talks about how public bad v. public benefit may nevertheless be upheld if there's a mutual reciprocity of advantage (if the burdened FSA owner is given an equivalent benefit)

what's reciprocity of advantage in this case? is there any? renquist says no, it's not being shared fairly, because all the cost of preserving grand central is put on a few property owners even though the entire community of new york gets the benefit