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For questions 1 & 2, see Professor Russ Pannier's Spring 2002 Property II Exam. (He and I gave the same test that year.) Here is question three from that exam.

QUESTION 3 (1 HOUR)

In 1980 Ned purchased Parcel I in the city of Springfield. For the past twenty-two years this property has remained undeveloped. In 2002 the city council passed the Archaeological Protection Ordinance which affected development rights on parcels of land throughout the city. Among other things the Ordinance barred development on Parcel 1. To justify passing this ordinance the city cited recent scientific investigations that have determined that many parcels - including Parcel 1 - sit atop important archaeological sites. (Assume the city has been given this authority by the state; thus do not discuss issues regarding enabling statutes.)

Without the ordinance the present market value of the undeveloped land is one hundred thousand dollars. Ned expected the market value of Parcel 1, once finally developed, to be one million dollars. However, with the ordinance in place the present market value of the undeveloped land is now fifteen thousand dollars.

Ned is also seeking to obtain a permit to build a convenience store within one mile of a residential development. Upon investigation Ned learns that the city has a Weekend Business Regulation that seems applicable to his venture.

The regulation reads:

A). "Where commercial development is permitted within two miles of a residential community, the city of Springfield shall require that any business that results from this commercial development shall remain closed during the first two Saturdays and Sundays of each month in the first year of the business's operation."

B). "Using its discretion the city of Springfield may extend this restriction listed in section A beyond the first year. The city may also increase the number of weekends that the business must be closed in a month during or beyond the first year."

Ned consults with city officials who tell him that the purpose of this particular regulation is to monitor what effect the new business will have on traffic in the area. With so many children playing in and around the residential neighborhood during the weekends, the regulation of traffic is a key concern for city leaders.

Questions:

Assume that you are a newly licensed attorney in the city of Springfield. Ned comes to you and asks three questions. First, what if any challenges can be made to the 2002 Archaeological Protection Ordinance?

Second, Ned also wants to know whether he should follow through on his plans to build the convenience store. Discuss all issues that would be reasonably raised, including but not limited to, the likelihood of obtaining a variance and special exception at the board level and on appeal. Do not discuss issues of rezoning or conditional rezoning.

Finally, Ned then tells you that if he decides to build the store that he would be interested in selling it within six months. What, if any, precautions and considerations should Ned take into account in drafting a purchase agreement?

For these questions make sure to discuss all applicable laws and state all legal arguments that might be relevant.

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Question 3 (Answer Key)--Krishnan, Spring 2002

I. Need to recognize the takings issue that is raised by the Archaeological Protection Ordinance

Rules

1. Need to mention, define and distinguish:

1. physical taking (invasion)-permanent physical occupation authorized by gov't = takings per se

2. regulatory taking

- older tests

- nuisance test

- control measures not takings

- when regs bring about public positive good = taking

- diminution in value test

- balancing test

2. Modern/Today:

1. Penn Central-reg = taking if not reasonably necessary to effect substantial public purpose or unduly harsh impact

2. Lucas-regulation is taking when there is economic wipeout-exception is that if common law would have okayed regulation

3. Academic perspectives on this issue (Russ, I did not require the students to know Michaelman, but the others were fair game)

Application

1. What did this Archaeological Ordinance do?

1. need to go through each of the above rules:

1. Physical taking?

2. Regulatory taking

- nuisance: under threshold/under REST?

- Diminution in value test?

- Balancing Test

- Penn Central

- Lucas

- Academic Perspectives

2. Need to recognize exaction issue

1. Dolan-essential nexus-rough proportionality-apply to facts

2. How does dimunition in value come in?