- Which defense, if meritorious, would most likely defeat the developer's constitutional claim?
Answer: Filling the tidal marsh for a marina would have been a public nuisance under state law existing before the developer bought the land.
Whenever you see a claim that government regulation leaves property with no economically beneficial use, you are in Lucas territory: a categorical regulatory taking. The crucial question is whether the regulation merely enforced a limitation that was already part of the owner's title under "background principles" of state property and nuisance law. Here, if filling the tidal marsh for a marina would have been a public nuisance under state law that existed before the developer bought the land, then the permit denial did not take anything; it simply confirmed that the developer never had the right to fill the marsh. That is the strongest defense.
wrong." Liability and remedy are separate; a promise to pay compensation if the claim succeeds acknowledges the potential taking, but does not defeat the constitutional claim. If anything, compensation is what a successful takings plaintiff receives, not a reason to reject the claim.
strategy: when a regulation destroys all economic value, first ask whether an old common-law nuisance or property-law principle would have barred the use anyway. If so, background principles defeat the taking; if not, the government must pay.
- Which issue is most likely to determine whether the city's condition is constitutional?
Answer: Whether the city may condition a discretionary permit on the dedication of land that is unrelated to the impacts of the proposed development.
Whenever you see a permit conditioned on a dedication of land, your mind should jump to the Takings Clause and the "unconstitutional conditions" doctrine. The governing test comes from Nollan and Dolan: the city must show an "essential nexus" between the condition and a legitimate government interest, and the exaction must be "roughly proportional" to the impacts of the proposed development. Here, the city explicitly has not shown that the new homes create any need for the trail, so the condition fails the nexus test. This makes the dedication an uncompensated taking—the city is forcing the developer to surrender property for public use without a demonstrated justification. That is precisely what the correct answer addresses: whether the city may condition a discretionary permit on a dedication unrelated to the development's impacts.
The equal protection distractor is a trap because the issue isn't disparate treatment of similarly situated parties; it's whether the government can take property without a valid reason. The vested rights choice is wrong because merely filing an application does not create a vested right—that requires substantial reliance or formal approval. Finally, the public access option misses the point: whether the trail serves the public or adjoining landowners is irrelevant, because the government is still demanding a permanent property interest, which triggers the Takings Clause.
Your study tip: when you see "condition" plus "dedicate land," immediately recite *Nollan/Dolan*—nexus and proportionality. If the condition is unrelated to the impact, it's unconstitutional.
- Which issue is most central to the owner's claim?
Answer: Whether a temporary ban on new construction can be a compensable taking when it does not permanently deprive the owner of all economically beneficial use.
Whenever you see a moratorium or temporary land-use restriction, your mind should jump to the Takings Clause and the key distinction between permanent and temporary deprivations. The owner's central claim is that a temporary ban on new construction can be a compensable taking even though it doesn't permanently deprive him of all economically beneficial use—that's the precise issue raised by the correct answer. Under First English Evangelical Lutheran Church, a temporary taking can be compensable if it denies all use for a period, but the threshold question is whether that temporary denial triggers compensation at all. The distractor about a protected property interest in a building permit confuses procedural due process with a substantive takings claim—a permit is a privilege, not a vested right until issued. The choice about considering the vacant lot alone or with the adjacent parking lot is a relevant Penn Central factor (the "parcel as a whole" analysis), but it is secondary because the moratorium is temporary; the parking lot's income doesn't change the fact that the lot itself is deprived. The choice about physical invasion is wrong because a moratorium is a regulatory restriction, not a physical occupation like in Loretto. Study tip: when you see a time-limited restriction, immediately ask whether it denies all economically beneficial use for that period—and remember that temporary does not automatically mean non-compensable.
- Which issue is most likely to determine the owner's constitutional challenge?
Answer: Whether requiring the owner to allow a private company to install and maintain equipment in the building amounts to a taking of private property.
Whenever a government rule forces a property owner to allow a third party to physically occupy or install equipment on the property, think "takings." Here, the ordinance requires the owner to let a broadband provider install equipment in the basement and run cables to all units—a permanent physical occupation. Under Loretto v. Teleprompter, any permanent physical occupation is a per se taking, regardless of the public benefit. So the owner's challenge most likely turns on whether this uncompensated occupation violates the Fifth Amendment's Takings Clause.
The choice about a reasonable exercise of police power is a due process test—but that can't justify a physical taking; public purpose doesn't eliminate the need for just compensation. The choice about impermissibly impairing the existing contract with the current provider is off-point because the ordinance doesn't alter the contract's terms; it simply allows another provider access. The Contract Clause isn't the primary issue. The choice about treating the broadband provider as a state actor misunderstands the situation: the city is the government, so state action is present. The private provider's status is irrelevant to a takings claim.
Remember: when a regulation authorizes a permanent physical invasion, the takings clause is the strongest argument. Look for words like "install," "maintain," or "occupy" as red flags for a per se taking.
- Which issue is most central to the farmer's claim?
Answer: Whether recurring, government-caused flooding can constitute a taking even though the flooding is not permanent and was not intentional.
Whenever you see government action damaging private property, ask whether the claim sounds in tort or in the Takings Clause. Here, the county built a culvert that repeatedly floods the farmer's land—so the most central issue is whether that recurring, government-caused flooding is a compensable taking.
It is. A taking does not require intent: the government's knowledge or purpose is irrelevant to whether it must pay just compensation. And while permanent flooding clearly can be a taking, temporary or intermittent flooding can also qualify if it is sufficiently frequent, severe, and foreseeable—especially recurring storm runoff that causes substantial crop loss and erosion. The county's compliance with engineering plans may matter for negligence, but not for a takings claim.
The wrong answer about failure to design a larger culvert frames the case as ordinary negligence, which misses the constitutional issue: compensation for government-caused property invasion, not fault-based damages. The choice about crops and topsoil as opposed to the land itself is a trap—the Takings Clause protects property broadly, including land and its productive use, but the real question is whether the flooding itself effects a taking, not whether crops are "land." Finally, the public use justification misunderstands the doctrine: public use is a condition for exercising eminent domain, not a shield from liability. Even a project that benefits the public still requires just compensation if it takes private property.
Study tip: repeated government-caused flooding is a classic takings pattern. Do not require intent or permanent inundation—focus on frequency, foreseeability, and severity.
- Which issue is most central to the validity of the condemnation?
Answer: Whether the expected public benefits from the private development are enough to satisfy the public use requirement.
When you see a condemnation that transfers land from one private owner to another, your mind should immediately jump to the Public Use Clause of the Fifth Amendment. The Supreme Court's decision in Kelo v. City of New London is the controlling framework: economic development—jobs, tax revenue, and revitalization—can constitute a "public use," but only if the expected benefits are genuine and not a mere pretext for transferring property to a private party for its own profit. Here, the city's plan hinges on selling the dealership to a private developer for a tech campus. The most central issue is whether the promised jobs and tax revenue are substantial enough to satisfy that public use requirement, which is exactly what the correct answer asks. The challenge to the condemnation stands or falls on this constitutional hook.
The distractor about the privately owned plaza being the primary public benefit is wrong because public access is not the sole measure of public use; economic development itself qualifies. The city's finding that the parcel was underutilized is a factual matter about blight or necessity, typically reviewed under a deferential "substantial evidence" standard—while relevant to the city's motive, it is not the core constitutional validity question. Finally, whether the dealership's lost business goodwill is included in compensation concerns the amount of just compensation, which is a separate issue that arises only after the taking is deemed valid; it does not affect the validity of the condemnation itself.
Your study tip: on the bar exam, always separate the validity of the taking (public use) from the price (just compensation). When a private party is the ultimate beneficiary, scrutinize the public benefits argument closely—that is where the constitutional fight lives.
