About to enter a prominent domain proceeding? There is a good chance that your case falls into one of the three main categories of “care” defined by your state constitution.
3 basic categories of “plugs” for eminent domain business in the United States
If you don’t already know, a “take” is defined as the occurrence of a local or federal government occupying (or encroaching on) private land for its own proposed public use. As such, there are three main types of withdrawals: (1) physical withdrawals, (2) regulatory withdrawals and (3) pro tanto withdrawals.
Perhaps the simplest to describe and most common physical levies are the straightforward process of a government – or some other entity with eminent domain power (DE) – creating a simple public use case for everything. or part of a property. Such an entity would then be obliged to indemnify the owner. (Physical samples can be partial or total, which I will develop in a moment).
Most emergencies are straightforward, under the radar, and rarely raise dust. Usually, they involve one party occupying, say, ten feet of an individual’s private property to widen a road or to build a sidewalk. The proceedings proceed quickly, compensation is distributed and all parties leave without contesting that the outlet is necessary for public use.
For regulatory levies, on the other hand, there is an exercise of authority involved – in this scenario the government is applying the power of the DE by regulating the use of a property, for example through zoning. There is no physical loss of property, however, your personal (or private) ability to use that property is somewhat limited.
For many litigants, even experienced ones, regulatory levies are a nuanced and complex area of law. As with physical samples, you will have what is called a total regulatory catch, where for others you may feel a partial regulatory take. Depending on the regulatory decision-making you face, you’ll want to refer to one of the following U.S. Supreme Court cases:
(a) For total regulatory revenue, reference Lucas v. Coastal Council of South Carolina
With total regulatory levies, a given regulation deprived a property of all economic value, leaving it useless for means of production. Homeowners who have undergone full regulatory take should bring a reverse conviction action against the regulating entity to seek to recover the fair market value of the property prior to taking. Quite simple.
(a) For partial regulation, see Penn Central housing
The procedure for a partial regulatory take is similar, the owner files a request for a reverse conviction, but the analysis is more complicated. When we look at regulatory partial levies, three main factors are weighed in to determine whether a levy has occurred. The first is the nature of government regulation. Here, the court balances the right to liberty of said property against the need of the government to protect or promote the interests of the public.
This assessment includes determinations of the social value and location of the restricted activity, as well as many other factors related to the prohibited activity, i.e. the degree of harm created by said activity, the the ease with which the harm can be avoided, whether the regulations target an individual and the extent to which the regulation is retroactive.
The second partial regulatory action taken is the economic input factor, by comparing the value that was taken and the value that remains after the regulatory take. For cases like these, the court will ask questions such as …
… What did the owner pay for the property?
… What improvements have owners made over time?
… What costs and benefits did they gain from extended ownership?
Finally, the courts will assess the extent to which regulation interferes with distinct investment-backed expectations.
The main idea behind this third assessment is whether the land or owner’s conditions were predictable. So, you’ll see court officials asking questions about the reasonableness of the owner’s choice to build on the existing regulatory framework, especially in light of potential DE warning signals. Courts are known to weigh heavily against those who might have anticipated their regulatory situation.
Pro Tanto Recipes
What people in the industry call a pro tanto plug, or a “substantial interference” hold, refers to a fundamental property interest linked to the “stick-stick” of property rights that a landowner once held, which are (in essence) “taken away”.
Simply put, pro tanto levies involve a court’s assessment of how a public project has interfered with the economic success or accessibility goals of a nearby property or business.
A classic example comes from the Supreme Court where a property was at ground level with an adjoining road, until the time the government raised the road to build a viaduct over nearby rail tracks. As a result, the property lost its ground level access and instead faced a 30 foot retaining wall. Because the owner’s basic right to access an adjacent road was “substantially impeded”, the Supreme Court called the case a Pro Tanto take.