Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights

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American Bar Association, 2010 - Law - 390 pages
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This book is the first large-scale effort devoted to this controversial issue, providing a vast platform of comparative knowledge on direct, indirect, categorical, and partial takings. Written for legal professionals, academics, urban and regional planners, real estate developers, and civil-society groups, the book analyzes thirteen advanced economy countries representing a variety of legal regimes, institutional structures, cultures, geographic sizes, and population densities.
 

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Contents

Regulatory Takings and the Role of Comparative Research
3
The Property Rights Debate in the United States
5
The Current State of Comparative Research on Property Rights
6
A Note on Terminology
7
The Purpose of the Book
9
The Jurisdictions Selected for Study
10
The Challenge of Comparative Research
11
The Research Method
12
Shared Bases in Legislation and Jurisprudence
208
Interpretation by the Courts
209
Direct Investments
210
Special Sacrifice Compared with Surrounding Plots
211
Differences in Procedures
212
United States
215
The Tests Applied
216
Economic Deprivations as Regulatory Takings
217

A Preview of the Comparative Findings
13
The Book Structure
14
Guidelines for Contributing Authors
19
Comparative Analysis A Platform for CrossNational Learning
21
Analytic Approach
22
Three Main Types of Regulatory Takings
23
ConstitutionalHuman Rights Protection of Property Rights
24
Comparative Overview
25
The Protection of Property under the European Convention
26
Cluster 1 Countries
27
Cluster 2 Countries
30
Cluster 3 Countries
32
Compensation Rights for Major Takings
35
Cluster 1 Countries
37
Cluster 2 Countries
40
Cluster 3 Countries
44
Compensation Rights for Direct Partial Takings
47
Cluster 1 Countries
48
Cluster 2 Countries
49
Cluster 3 Countries
52
Compensation Rights for Indirect Partial Takings
62
Cluster 1 Countries
63
Cluster 3 Countries
64
Conclusions The US Property Rights Debate Viewed through CrossNational Lenses
75
Placing US Regulatory Takings Law on the Comparative Scale
77
Oregons Measure 37 Viewed from the Outside
79
Possible Statutory Models for Further Study
80
Can the Differences Be Explained?
84
An Example of How Comparative Research May Bring About Legislative Revision
86
Countries with Minimal Compensation Rights
91
Canada
93
The Canadian Bill of Rights
94
The 1982 Constitution
95
Protection beyond the Canadian Federal Government Provincial Protections
96
Canadas Obligations under the North American Free Trade Agreement NAFTA
97
The Interpretive Presumption as Applied to Regulatory Takings Jurisprudence
98
Compensation Denied
99
Benefit Directed at Government
100
Compensation Granted
101
Prognosis on the Protection of Property Rights in Canada
102
Australia
107
A Brief History
108
Basic Grounds for Compensation
109
Types of Compensable Injuries
110
Eligibility to Claim and Government Liability
111
Procedures for Assessment of Compensation Claims
112
The Absence of Compensation Rights for Indirect Injury to Adjoining Land
114
United Kingdom
119
Interference with Existing Planning Rights
120
Revocation and Modification of Planning Permissions That Have Not Yet Been Implemented
121
Voiding a Permit through Judicial Review with No Compensation Rights
122
Purchase Notices
123
No Need to Show Causation and Need to Apply for Planning Permission
124
Planning Blight and Injurious Affection
125
The Qualifying Interests
126
Injurious Affection
127
Injurious Affection Caused by the Construction of Public Works Even If No Land Is Taken
128
Rights to Compensation under the Land Compensation Act J973
129
The European Convention on Human Rights and the Human Rights Act 1998
130
Evaluation
133
France
139
The Revolt of Landowners against Zoning
140
The Context of a Decentralized Planning System after the 1980s and Its Consequences on the Question of Windfalls for Wipeouts
142
Transfer of Development Rights the French Way
143
Compensation through the Inverse Condemnation Principle
145
Some Specific Compensation Devices
146
Evolution of European Jurisprudence
147
Greece
149
The Constitutional Framework
151
The Impact of the European Court of Human Rights on Greek Takings Law
154
Types of Regulatory Takings
155
Regulatory Takings in Areas Covered by Town Plans
156
Long Delays in the Declaration of Expropriation for Land Designated for Public Service Buildings or Uses
157
Temporary Freeze of Development Rights
158
Regulatory Takings in Areas Not Covered by Town Plans
159
Restrictions on the Use of Property for Land Located within Zones of Nature Conservation
160
Judicial Remedies and Statutory Regimes for Compensation
162
Evaluating Current Laws and Practices
163
Countries with Moderate or Ambiguous Compensation Rights
169
Finland
171
The Constitutional Protection of Property Ownership Land Use Restrictions and the Convention for the Protection of Human Rights and Fundamental...
172
Legislation on Expropriation
173
The Requirements for Compensation for Land Use Restrictions
174
The Amount of Compensation
175
Types of Land Use Restrictions
176
Indirect Injuries
177
The Legislative Requirements for Land Use Restrictions and Compensation
178
Legal Effects of Land Use Plans on Landowners
179
Compensation
180
Specific Types of Land Use Restrictions
182
Nature Conservation
183
Public Roads
184
Planning Practice Evaluation and Prospects
185
Austria
195
An Introduction to the Austrian Planning System and Its Influence on Land Values
196
The Law on Compensation for Reduction of Development Rights in Each of the Austrian States
198
Burgenland
201
Carinthia
202
Lower Austria
204
Salzburg
205
Steiermark
206
Vienna
207
Partial Economic Deprivations
218
Selecting the Relevant Unit of Property against Which to Measure Loss
221
Physical Occupation Resulting from Regulation
222
Government Actions Indirectly Diminishing Property Value
223
Severance Damage in Direct Condemnations
224
Permanent or Temporary Taking the States Choice
225
The Special Case of Oregon The Heated Debates Regarding Measures 37 and 49
229
History and Background
230
Constitutional Issues
231
Measure 37
232
Main Grounds for Claims
234
Measure 37 Claims
235
Procedures
238
Measure 49
239
What Lessons Does the Measure 37 Saga Hold?
242
Countries with Broad Compensation Rights
247
Poland
249
Historical Background
250
The First Stage of Reforms
251
Constitutional Rules and International Convention Aspects Protection of Property Rights Rule
252
The Just Compensation Rule
253
The European Convention of Human Rights
254
Introduction to the Polish Planning System and Types of Compensable Decisions
255
Compensable DirectPlanning Injuries
256
The Acquisition Claim According to Environmental Protection Law
258
Compensation for Indirect Injuries
260
Injury Stemming from an Expropriation of an Adjacent Plot
261
Procedural Aspects of Compensation Claims
262
Entitlement to Compensation
263
Information for Landowners
264
The Burden of Proof
265
The Federal Republic of Germany
271
Types of Planning Decisions and Related Compensation Rights
272
Designation for Public Purposes
273
The Rights of Landowners When a PrivateType Land Use Is Downzoned
275
Compensation for Expenses Incurred While Relying on Government Policy Breach of Faith
278
Revocation of a Valid Building Permit or Denial of a Variance or Exception
279
Temporary Suspension of the Permitted Use and Development Rights
280
A Critique
281
Conditions on the Grant of Building Permits Awaiting Infrastructure
282
Automatic Expiration of a Temporary Land Use Designated in a Bplan
283
Compensation for Indirect Injury by an Adjacent Public Use
284
Injury Caused to a Neighboring Private Landowner by a New Private Use
285
The Rise in Property Values and Its Relationship with the Right to Compensation
286
Procedures and Other Matters
287
Judicial Authorities
288
Planning Practice and Final Evaluation
289
Sweden
293
The Basics of Compensation Rights
294
Compensation Principles for Restrictions on Land Use
295
Compensation for Environmental Injuries Caused by the Use of an Adjacent Property
296
Compensation in Cases of Exceptional Injury to the Remainder of Property
297
The Detailed Development Plan
298
An Overview of the Various Situations That May Invoke Compensation Rights and the Differences among Them
299
Compensation Rights Related to the Adoption Amendment or Annulment of Detailed Development Plans
300
Demolition Prohibition for Protected Buildings
302
Compensation Rights When a Plan Is Amended or Repealed during the Implementation Period
303
Exceptions When There Are Compensation Rights
304
Implications for Compensation for Land Acquisition
305
Refusal to Grant a Demolition Permit
306
Refusal to Grant a Site Improvement Permit
307
Evaluation
308
Israel
313
A Brief History
314
Constitutional Law
315
Why the Dramatic Rise in the Number of Claims?
316
The 1965 Planning and Building Law and Its Interpretation by the Courts
317
Establishing the Grounds for a Compensation Claim
318
Preconditions for Making a Compensation Claim
319
How Are Landowners to Be Informed?
321
The Definition of Injury and Its Implications
322
Should Land Values Reflecting Expectations for Upzoning Be Taken into Account?
323
PersonSpecific Injuries and Injury to Commercial Enterprise
324
The Relationship between Compensation for a Regulation and for an Expropriation
325
The TwoStage Compensation Doctrine
326
The Varon Case
327
The Vitner Doctrine
329
Implications for National Infrastructure
330
The Practice of Requiring Indemnification Commitments from Developers
331
The Three Conditions of Section 200
332
The Relationship between the Two Parts of Section 200
333
The Horowitz Case
334
Uncertainty Remains
335
The Netherlands
343
The General Framework for the Protection of Property under European International Law and Dutch Law
344
Planning Compensation Obligation to Consent and Expropriation
345
Absolute Public Use Expropriation
346
Similarities and Differences
347
The Law Regarding Planning Compensation Rights
348
Some Facts about Claims in Practice
350
The Evolution of Case Law
351
Steps and Criteria for Determining a Compensation Claim
354
Is the New Plan More Damaging Than the Old Plan?
355
Can the Damage Reasonably Be Borne by the Aggrieved Party?
356
Agreements by Developers to Reimburse Compensation Claims
358
Compensation Rights for the Expansion of Amsterdam Schiphol Airport
359
Evaluation and Debate
360
Afterword
365
Table of Authorities
367
Name Index
387
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