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The Case Of Procedural And Substantive Law

2226 words - 9 pages

1. Define the terms takings as it relates to the environmental law and provide one example of a legally resolved taking case.
Taking is a general term of an act of taking something. In an environmental point of view, the taking is ta process that involves taking something of an environmental assets, such as land, from an individual or organization. However, most cases, it involves government taking private property from owners when that piece of private land is determined a necessity to create public-desired resource, such as a road, wildlife preserve, or military base. On the other hand, the government must provide compensation for the land owner for the taking. If compensation is not provided, it is a clear indicator for violating the Fifth Amendment. According to Farber & Findley (2010), the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” As it is clearly stated in the Fifth Amendment, government cannot take private property from owners for public use. Now environmental taking problem arises when these conditions are not meet or the owners determines that he/she is not being compensated for the taking of his land.
Now, there are takings clause of the Fifth Amendment. According to Galperin (2013), there are three distinct clause for taking; (1) taking by eminent domain is the most tradition means of taking private property from owners that involves going to court stating the needs to take the land for public use while providing compensation for the private owner; (2) taking by regulation is applicable if the government is forcefully taking the land from the private owner; and (3) taking by exaction occurs when the government will only issue a development permit, for owner’s building project, if the owner agrees that the small portion of the land be of public use (pedestrian crossing, bike lane, etc.).
Government taking is a very delicate and complex issue to where it may be necessary to bring to court for legal actions and resolution. One example of such environmental case was with the Nollan v. California Coastal Commission of 1987. On the side note, this case found its way to Supreme Court and establishing itself as one of the three most important taking cases in the 1987. In my opinion, this also contribute to the rigorous process of taking today. Now the Nollan v. California Coastal Commission of 1987 is a perfect example of the “taking by exaction” clause. The case involves owner’s effort to build a bungalow on his beachfront property. The condition for the construction was for the developer to establish a lateral access to the beach from the adjacent beach property. In doing so, the court determined the condition for approval to construct a pathway for public use has merit due to the fact that the development of the construction without lateral access to the beach will create problems. In this case, the resolution was based on the validation and merit of the...

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