09-03-2018, 04:17 PM
Seeb - Ding, Ding, He didn’t put a time limit or conditions on it is a REGULATORY TAKING and the land owners are due compensation
It's hard to see how it could not be a taking, as the owners are unable to use their homes as intended and are incurring losses due to having pay rent and possibly a mortgage on the unusable property. Since the lava stopped flowing and the gases massively decreased, it doesn't seem like an interest in public health or safety could be used as justification either.
https://www.law.cornell.edu/wex/takings
Is the regulation a taking under the Penn Central balancing test?
Here a court will look at 3 factors:
-The character of the governmental action involved in the regulation
--If the government's action is a physical action, rather than a “regulatory invasion,” then the action is almost certainly a taking
-The extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations for the parcel as a whole
-The regulation’s economic impact on the affected prop owner
Noxious Use
Even if a government regulation is deemed a taking, it still may be viewed as justified, as long as it meets the noxious use test, also known as the Mugler-Hadacheck test. Under this test, a regulation adopted under the police power to protect the public health, safety, or welfare is not a taking, even if the taking reduces the value of property.
It's hard to see how it could not be a taking, as the owners are unable to use their homes as intended and are incurring losses due to having pay rent and possibly a mortgage on the unusable property. Since the lava stopped flowing and the gases massively decreased, it doesn't seem like an interest in public health or safety could be used as justification either.
https://www.law.cornell.edu/wex/takings
Is the regulation a taking under the Penn Central balancing test?
Here a court will look at 3 factors:
-The character of the governmental action involved in the regulation
--If the government's action is a physical action, rather than a “regulatory invasion,” then the action is almost certainly a taking
-The extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations for the parcel as a whole
-The regulation’s economic impact on the affected prop owner
Noxious Use
Even if a government regulation is deemed a taking, it still may be viewed as justified, as long as it meets the noxious use test, also known as the Mugler-Hadacheck test. Under this test, a regulation adopted under the police power to protect the public health, safety, or welfare is not a taking, even if the taking reduces the value of property.