OS requests last minute property assistance

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OperaSoprano
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OS requests last minute property assistance

Postby OperaSoprano » Tue May 11, 2010 11:34 pm

Property final is tomorrow at 5:30. I was going through my notes, and a few things are still unclear. I have the following:

When is a government action not a taking?

1) When it advances a legitimate government interest, AND
2) It leaves the property owner with some viable use.

Does anyone know or remember what this test is from, or know any context for it?

I also need someone to quickly catch me up on the rules of self help in evictions. In my practice tests, I've just talked about holdover tenants and the right to shelter, but this is the only context in which our professor talked about self help. Can anyone clarify in what other contexts a landlord may not use self help? And does the concept of tenancy at sufferance apply to commercial tenants? This was not explained in class, and so is not in my notes or outline. I've been trying to fill in every gap I can find... I don't like not knowing things! My mind is leaking!

Final is in 18 hours. FML.

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vanwinkle
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Re: OS requests last minute property assistance

Postby vanwinkle » Tue May 11, 2010 11:41 pm

The way we studied it, is that nothing the government does is a taking unless it fits into either two rules, or an ad-hoc test.

The first categorical rule is that the government action is a permanent physical occupation or the functional equivalent.

The second categorical rule is that the government action wipes out all economic use of the land. This is the Lucas rule (Lucas v. South Carolina I think). This would be the "some viable use" thing; if the government leaves them with some viable use of the property, it's not a taking under the Lucas rule (but still may be under the first rule or the ad-hoc test).

The ad-hoc test is from Penn Central and includes 5 factors. If you didn't study Penn Central or Kaiser Aetna then you probably don't need to know this.
Last edited by vanwinkle on Tue May 11, 2010 11:50 pm, edited 1 time in total.

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dresden doll
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Re: OS requests last minute property assistance

Postby dresden doll » Tue May 11, 2010 11:42 pm

My mind is leaking from the fact that I have NO ANSWERS to your questions.

God, I need to pick up a supplement.

Good luck, dear.

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OperaSoprano
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Re: OS requests last minute property assistance

Postby OperaSoprano » Tue May 11, 2010 11:49 pm

vanwinkle wrote:The way we studied it, is that nothing the government does is a taking unless it fits into either two rules, or an ad-hoc test.

The first categorical rule is that the government action is a permanent physical occupation or the functional equivalent.

The second categorical rule is that the government action wipes out all economic use of the land. This is the Lucas rule (Lucas v. South Carolina I think). This would be the "some viable use" thing; if the government leaves them with some viable use of the property, it's not a taking under the Lucas rule (but still may be under one of the t

The ad-hoc test is from Penn Central and includes 5 factors. If you didn't study Penn Central or Kaiser Aetna then you probably don't need to know this.


We did do Penn Central and Lucas, and I remember them. I will reread Lucas if you think that's where she got that rule from. Curse me and my inability to take usable notes!

<3 for the help!

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OperaSoprano
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Re: OS requests last minute property assistance

Postby OperaSoprano » Tue May 11, 2010 11:50 pm

dresden doll wrote:My mind is leaking from the fact that I have NO ANSWERS to your questions.

God, I need to pick up a supplement.

Good luck, dear.


My darling, you don't need to know them yet, do you?

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macattaq
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Re: OS requests last minute property assistance

Postby macattaq » Tue May 11, 2010 11:55 pm

I'd offer to help, since I'm [strike]thinking about[/strike] studying for a property exam on Thursday. But, I am [strike]procrastinating[/strike] cleaning, and haven't gotten to that part of my outline yet.

Bankhead
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Re: OS requests last minute property assistance

Postby Bankhead » Wed May 12, 2010 12:03 am

vanwinkle wrote:The way we studied it, is that nothing the government does is a taking unless it fits into either two rules, or an ad-hoc test.

The first categorical rule is that the government action is a permanent physical occupation or the functional equivalent.

The second categorical rule is that the government action wipes out all economic use of the land. This is the Lucas rule (Lucas v. South Carolina I think). This would be the "some viable use" thing; if the government leaves them with some viable use of the property, it's not a taking under the Lucas rule (but still may be under the first rule or the ad-hoc test).

The ad-hoc test is from Penn Central and includes 5 factors. If you didn't study Penn Central or Kaiser Aetna then you probably don't need to know this.


This is exactly right. Did you guys do takings based on a condition (Dolan -- nexus/rough proportionality)?
Last edited by Bankhead on Wed May 12, 2010 12:03 am, edited 1 time in total.

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dresden doll
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Re: OS requests last minute property assistance

Postby dresden doll » Wed May 12, 2010 12:03 am

OperaSoprano wrote:
dresden doll wrote:My mind is leaking from the fact that I have NO ANSWERS to your questions.

God, I need to pick up a supplement.

Good luck, dear.


My darling, you don't need to know them yet, do you?


Oh, I wouldn't even know. Knowing what I need to know would, you know, require actually LISTENING in class. And READING. Both of which I currently have issues with.

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OperaSoprano
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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 12:06 am

dresden doll wrote:
OperaSoprano wrote:
dresden doll wrote:My mind is leaking from the fact that I have NO ANSWERS to your questions.

God, I need to pick up a supplement.

Good luck, dear.


My darling, you don't need to know them yet, do you?


Oh, I wouldn't even know. Knowing what I need to know would, you know, require actually LISTENING in class. And READING. Both of which I currently have issues with.


I know that you know that you know. <3

Can anyone help with the eviction questions?

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Re: OS requests last minute property assistance

Postby toaster2 » Wed May 12, 2010 12:08 am

.

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MrKappus
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Re: OS requests last minute property assistance

Postby MrKappus » Wed May 12, 2010 12:15 am

The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.

And I'm spent.

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bgc
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Re: OS requests last minute property assistance

Postby bgc » Wed May 12, 2010 12:17 am

Advancing a government purpose is no longer a factor. In Lingle (Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)), O'Connor nicely sums up current takings jurisprudence while explaining that the question of whether something will "substantially advance legitimate state interests" is not determinative. It's a good discussion of the doctrine, but it doesn't do much to clarify Penn Central.

Can't help on evictions--sorry.

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OperaSoprano
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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 12:20 am

MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.

And I'm spent.


Thank you! I'm now worrying that we covered this and somehow I missed it.

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OperaSoprano
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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 12:22 am

bgc wrote:Advancing a government purpose is no longer a factor. In Lingle (Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)), O'Connor nicely sums up current takings jurisprudence while explaining that the question of whether something will "substantially advance legitimate state interests" is not determinative. It's a good discussion of the doctrine, but it doesn't do much to clarify Penn Central.

Can't help on evictions--sorry.


We didn't do Lingle, but I will stick to Penn Central if the consensus is that it's the best example of a regulatory action (and deprivation of airspace rights) for which the government did not have to compensate.

So tired...

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Re: OS requests last minute property assistance

Postby eth3n » Wed May 12, 2010 1:02 am

MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.

And I'm spent.


For residential leases there are some judicial methods of expediency that LL can pursue, e.g. forcible entry and detainer, summary ejectment, unlawful detainer that are the holdovers for legitimate eviction. Kappus is correct that old "lawful/peaceable" test is unworkable and generally not used.

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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 10:09 am

eth3n wrote:
MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.

And I'm spent.


For residential leases there are some judicial methods of expediency that LL can pursue, e.g. forcible entry and detainer, summary ejectment, unlawful detainer that are the holdovers for legitimate eviction. Kappus is correct that old "lawful/peaceable" test is unworkable and generally not used.


Thank you so much! Final is in eight hours... Will be checking TLS periodically and doing last minute things. Can anyone tell me any more?

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Re: OS requests last minute property assistance

Postby vanwinkle » Wed May 12, 2010 11:07 am

OperaSoprano wrote:
eth3n wrote:
MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.

And I'm spent.

For residential leases there are some judicial methods of expediency that LL can pursue, e.g. forcible entry and detainer, summary ejectment, unlawful detainer that are the holdovers for legitimate eviction. Kappus is correct that old "lawful/peaceable" test is unworkable and generally not used.

Thank you so much! Final is in eight hours... Will be checking TLS periodically and doing last minute things. Can anyone tell me any more?

This is pretty much all I know about self-help, too. We studied Berg v. Wiley and that was about it. It expresses the "modern rule" (which not all jurisdictions follow) that self-help is never allowed for public policy reasons, as mentioned above. A few jurisdictions may still follow the lawful/peaceable standard. If a self-help situation comes up on the test that's probably all you need to know; just describe the two possibilities and say you'd need to look up which is the rule in this jurisdiction, and you're done.

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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 11:37 am

vanwinkle wrote:
OperaSoprano wrote:
eth3n wrote:
MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.

And I'm spent.

For residential leases there are some judicial methods of expediency that LL can pursue, e.g. forcible entry and detainer, summary ejectment, unlawful detainer that are the holdovers for legitimate eviction. Kappus is correct that old "lawful/peaceable" test is unworkable and generally not used.

Thank you so much! Final is in eight hours... Will be checking TLS periodically and doing last minute things. Can anyone tell me any more?

This is pretty much all I know about self-help, too. We studied Berg v. Wiley and that was about it. It expresses the "modern rule" (which not all jurisdictions follow) that self-help is never allowed for public policy reasons, as mentioned above. A few jurisdictions may still follow the lawful/peaceable standard. If a self-help situation comes up on the test that's probably all you need to know; just describe the two possibilities and say you'd need to look up which is the rule in this jurisdiction, and you're done.


Berg v. Wiley is buried in the notes, and she never talked about it! There was a hypo exactly like this on our last practice exam, though... My answer was technically correct, I just didn't have a case cite because I couldn't remember reading it. :oops:

<3 for your help.

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Re: OS requests last minute property assistance

Postby vanwinkle » Wed May 12, 2010 12:01 pm

--ImageRemoved--

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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 12:03 pm

vanwinkle wrote:--ImageRemoved--


<3

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Re: OS requests last minute property assistance

Postby Always Credited » Wed May 12, 2010 12:10 pm

vanwinkle wrote:--ImageRemoved--


180 meme

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Matthies
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Re: OS requests last minute property assistance

Postby Matthies » Wed May 12, 2010 12:45 pm

MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.
And I'm spent.


The bolded is pretty true to residentail leases now as well. From my outline

V. TENANCY AT SUFFERANCE: THE HOLDOVER TENANT
a. General Rule: This Tenancy arises in ONLY one situation: it refers to the bare POSSESSION that a tenant has of the property when that tenant wrongfully holds over, where the landlord has TWO options (i) evict or (ii) impose new periodic tenancy.
b. Elements:
i. Landlord’s TWO Options:
1) Sue to Evict—sue in TRESPASS – TO REMOVE TENANT and to recover DAMAGES – FOR THE HOLDOVER.
2) Impose New Periodic Tenancy
a. The Landlord may elect to treat the Tenant as a new periodic tenant.
b. If the old, expired tenancy was for less than a year, the new tenancy will be measured by the period covered by the rent payment. In the case of residential property, the new period will usually be month-to-month.
c. In the case of leases for commercial property, if the old, expired tenancy was for a year or more, the new periodic tenancy that the landlord may elect to impose will be for year-to-year.
d. The landlord may not impose a new periodic tenancy if it is NOT reasonable under the circumstances, e.g., tenant’s moving van is late by a few hours, etc.

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Re: OS requests last minute property assistance

Postby OperaSoprano » Wed May 12, 2010 1:25 pm

Matthies wrote:
MrKappus wrote:The majority view now, I believe, is that landlord self-help is never acceptable. It used to be acceptable if reentry was: (1) lawful, and (2) peaceable. However, courts now hold that reentry can never be peaceable, because there is too great a risk of violence, mistake, or other circumstances that would be against public policy (see Berg v. Wiley in MN).

Since there is significantly more negotiation in commercial leases, w/ tailored K's as opposed to standard forms, most jurisdictions hold that landlord's have two remedies for holdover commercial tenants: (1) eviction via judicial process, or (2) renewal of the lease's period.
And I'm spent.


The bolded is pretty true to residentail leases now as well. From my outline

V. TENANCY AT SUFFERANCE: THE HOLDOVER TENANT
a. General Rule: This Tenancy arises in ONLY one situation: it refers to the bare POSSESSION that a tenant has of the property when that tenant wrongfully holds over, where the landlord has TWO options (i) evict or (ii) impose new periodic tenancy.
b. Elements:
i. Landlord’s TWO Options:
1) Sue to Evict—sue in TRESPASS – TO REMOVE TENANT and to recover DAMAGES – FOR THE HOLDOVER.
2) Impose New Periodic Tenancy
a. The Landlord may elect to treat the Tenant as a new periodic tenant.
b. If the old, expired tenancy was for less than a year, the new tenancy will be measured by the period covered by the rent payment. In the case of residential property, the new period will usually be month-to-month.
c. In the case of leases for commercial property, if the old, expired tenancy was for a year or more, the new periodic tenancy that the landlord may elect to impose will be for year-to-year.
d. The landlord may not impose a new periodic tenancy if it is NOT reasonable under the circumstances, e.g., tenant’s moving van is late by a few hours, etc.


Grazie! *updates outline*

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Duralex
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Re: OS requests last minute property assistance

Postby Duralex » Wed May 12, 2010 10:16 pm

My curiosity piqued, some lame google-fu found the (brief) discussion of the court in the below-linked zoning case, which discusses both Penn Central as controling, as well as how Lucas fits in. I understand that outside cases (or cases in general) are useless for exams, but perhaps the court's summation of the regulatory takings issue will prove useful. I've tucked it into a codeblock below (and cut off the bits about delay.)

http://www.judicial.state.sc.us/opinion ... seNo=26040
or
365 S.C. 650, 620 S.E.2d 76 S.C.,2005.

Code: Select all

II.  Taking

First, we find that this case is governed by Penn Central Transportation Company v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978).  We then address the nature of the Penn Central inquiry in the context of regulatory delay.  Last, we find that Byrd is unable to prove a taking.       

A.  Penn Central Governs This Case

Byrd’s regulatory-inverse-condemnation action is governed by Penn Central because it stems from Byrd’s having suffered a temporary denial of less than all economically viable use of his property.[8]  Until recently, there might have been some confusion as to whether a case like Byrd’s was governed by Penn Central, Agins v. City of Tiburon, 447 U.S. 255, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980), or both.  In light of the United States Supreme Court’s decision in Lingle v. Chevron U.S.A., Inc., which overruled Agins, it is clear that Penn Central controls.  No. 04-163 (decided May 23, 2005), 73 USLW 4343, 2005 WL 1200710.  To the extent that some of our previous cases have applied Agins alone or both Agins and Penn Central, we overrule them.  Infra, note 9.

The general rule is that regulatory-takings cases require “essentially ad hoc, factual inquiries,” balancing all relevant circumstances to determine whether the government has taken property.  Penn Central, 438 U.S. at 124, 98 S. Ct. at 2659, 57 L. Ed. 2d at 648.  Two circumstances are especially important: (1) “the economic impact on the claimant, and, particularly, the extent to which the [government] has interfered with distinct investment-backed expectations;” and (2) “the character of the governmental action.”  Penn Central, 438 U.S. at 124, 98 S. Ct. at 2659, 57 L. Ed. 2d at 648;[9] see also Denene, Inc. v. City of Charleston, 359 S.C. 85, 98-99, 596 S.E.2d 917, 924 (2004); Sea Cabins on the Ocean IV Homeowners Ass’n v. City of North Myrtle Beach, 345 S.C. 418, 430, 548 S.E.2d 595, 601 (2001). 

When, however, it has been factually determined that a property owner has been deprived of all economic use of his property, there is a taking per se.[10]  Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-19, 112 S. Ct. 2886, 2892-95, 120 L. Ed. 2d 798, 812-15 (1992).  Because Byrd’s loss was only temporary, and because Byrd was able to farm his property, no taking per se occurred here.

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Court held that Lucas does not apply when the property owner has suffered a temporary loss of all economically viable use.  535 U.S. 302, 331-32, 122 S. Ct. 1465, 1484, 152 L. Ed. 2d 517, 546-47 (2002).  Because time is a component of an interest in property, the property owner in that situation has suffered a partial loss, not a total one.  Once the temporary restriction is lifted, value will return.  Tahoe-Sierra, 535 U.S. at 331-32, 122 S. Ct. at 1484, 152 L. Ed. 2d at 546.  In such a case, the court must apply Penn Central to determine whether there has been a taking.

The City argues that Byrd’s case is distinguishable from Tahoe-Sierra in that Byrd has not alleged a temporary loss of all economically viable use.  As a matter of law, the City asserts, there is no taking if the property owner has suffered a temporary loss of only part of the economically viable use of the property.  We disagree.  While this case might be factually different from Tahoe-Sierra, there the United States Supreme Court expressly rejected the adoption of categorical rules in the context of regulatory takings.  If Lucas does not apply, then Penn Central does.[11]  That is the case here.   


I'm guessing that's not incredibly useful, my limited LR skills are not currently school-oriented, but just in case--there ya go.

Best of luck.

Edit: no scrollbars on the codeblock? Phooey.
Double Edit: Apparently Courage Wolf is on the SC Supreme Ct.




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