June 2010

Here are items we’re reading today, in no particular order:

  • Bill Ward’s thoughts on Klumpp v. City of Avalon, the recent New Jersey Supreme Court case about inverse condemnation and beach restoration. Our take here.

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Continue Reading Wednesday Potpourri: Inverse Condemnation And Beaches, Rail Takings, And More “Adult-Oriented” Land Use

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Here’s the latest development in the ongoing life imitating art saga of the the use of eminent domain to take property in St. Johannes Cemetery for the expansion of O’Hare airport.

Appellate court hears arguments in O’Hare cemetery case is a short news report about last week’s oral argument in the appeal by the “living relatives” from an Illinois state court’s judgment dismissing their claims.

Listen to the argument recording here (be warned if you aren’t streaming the file, it’s a massive 140mb mp3).

The issues, as framed by the living relatives, are two-fold: first, whether the religion-based claims were barred by res judicata, and second, whether the taking is for a public use. It’s often very difficult to discern the scope of the issues from oral argument, so we’re not sure what the specific questions presented are. Nonetheless, the argument is worth a listen. Continue Reading They Really Are Moving Father’s Grave To Build … An Airport

Today, we bring you guest commentary on Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151 (June 17, 2010), last week’s Supreme Court decision on judicial takings and ownership of replenished beaches. 

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Beach Decision Draws No New Line in Sand

But high court launches debate about topic of judicial takings

By DWIGHT MERRIAM

On June 17, the U.S. Supreme Court handed down its decision in Stop the Beach Renourishment, its first property rights case since Kelo, Lingle and San Remo five years ago. The pundits pounced. Even the New York Times jumped on the dog pile with an editorial decrying Scalia’s promotion of judicial takings as “harebrained.”

The reaction is mostly overblown. This is a case the Court should not have taken. The Florida Supreme Court correctly decided the takings claim with a well-reasoned, rational analysis consistent with Florida precedent.

Coastal property…

Continue Reading Guest Post: Beach Decision Draws No New Line In Sand

Today’s U.S. Supreme Court plurality opinion in the long-anticipated Second Amendment case, McDonald v. City of Chicago, No. 08-1521

In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado  v.  California, 110 U.S. 516 (1884) (due process does not require grand jury indictment);  Chicago, B. & Q. R. Co.  v.  Chicago, 166 U.S. 226 (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted. 

First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See  Twining  v.  New Jersey  , 211 U. S. 78, 99 (1908) .

Second, the Court explained that the only…

Continue Reading Takings, Guns, And Incorporation

Zipler Our colleague Dwight Merriam reminds us that last year, a case related to a decision we posted about a couple of days ago was awarded a ZiPLeR.

Now in its thirteenth year, the award is presented by the Zoning and Planning Law Report for the “strangest, or at least more dramatic” land use cases each year. For an example of the awards edition of ZPLR, see here.

In 2009 it was the district court’s decision in Flava Works, Inc. v. City of Miami, that merited an award. According to Dwight’s write-up:

The We-Are-Just-Working-Girls Award, in yet another enforcement case, goes to cocodorm.com, which operates a website offering pornographic video over the internet for a fee. Thank you, Lora Lucero, for this nomination. Patricia Salkin also reported on it on her Law of the Land blog.

This isn’t the first enforcement case of this…

Continue Reading We’re Going To Nominate The 11th Circuit’s “Porn Dorm” Case For A 2010 ZiPLeR Award

In Muscarello v. Ogle County Board of Commissioners, No. 08-2464 (June 24, 2010), the U.S. Court of Appeals dismissed as unripe a claim the county’s grant of a special use permit to a neighboring property owner allowing it to construct windmills on its land was a taking. 

Ogle County granted Baileyville Wind Farms a special use permit to allow the construction of 40 windmills on its property. Muscarello owns the adjoining property and brought suit in federal court for a variety of federal and state law claims. See pages 4-5 of the slip opinion for the details of the “laundry list” (in the court’s words) of allegations of harm (“We glean from all this, taking it in the light most favorable to Muscarello, that she believes that the preconstruction of windmills will have uncompensated adverse consequences for her and her fellow nonresidential property owners. Muscarello sued to stop the…

Continue Reading Seventh Circuit: Claim A Wind Farm Is A Taking Is Tilting At Windmills

Most municipal zoning codes prohibit the operation of a “business” in a residential zone. Does this mean you can’t have a “home office” or take work-related calls at home? In most circumstances, doing so does not run afoul of the zoning code if the primary use of the home remains a dwelling house, and the business-like activities are incidental and subordinate to the residential purposes. Zoning codes are not meant to control every aspect of life, nor can they legally or practically.

The Miami zoning code allows “home occupations” provided they are not conducted by more than three people, and they are limited to certain occupations (architect, lawyer, real estate broker, for example). According to a new case from the U.S. Court of Appeals for the Eleventh Circuit, a “voyeur dorm” isn’t among the permitted uses of a residence. Flava Works, Inc. v. City of Miami, No. 09-11264 (June…

Continue Reading 11th Circuit: Internet Porn Dorm Is “Business” In A Residential Zone

Here’s a round-up of reports and analysis of yesterday’s opinion by the New York Court of Appeals in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125:

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Continue Reading Friday’s Columbia “Blight” Case (Kaur) Links

More on today’s opinion in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125.

As we noted in our critique of the Atlantic Yards case (Goldstein), New York judges apparently are too “frightened and confused” by allegations that property is not truly “substandard or unsanitary,” so must defer to the agency’s finding:

The term “substandard or insanitary area” is defined as “a slum, blighted,  deteriorated or deteriorating area, or an area which has a blighting influence on  the surrounding area” (Uncons Laws § 6253 [12]). Here, the two reports prepared by ESDC consultants — consisting of a voluminous compilation of documents and photographs of property conditions — arrive at the conclusion that the area of the Project site is blighted. Just as in Matter of Goldstein, “all that is at issue is a reasonable difference of opinion as to whether…

Continue Reading New York Still Has “Unfrozen Caveman Judges” Who Are “Frightened And Confused” By Eminent Domain Blight

The New York Court of Appeals today reversed the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010). The unanimous opinion came swiftly (oral arguments were just under a month ago), suggesting it was not a close call for the court. Here’s the Appellate Division’s opinion.

We haven’t had time to digest it, and there certainly will be a round of analysis and opinion on the case, but here’s the introductory paragraph of the court’s opinion:

In this appeal, we are called upon to determine whether respondent’s exercise of its power of eminent domain to acquire petitioners’ property for the development of a new Columbia University campus was supported by a sufficient public use, benefit or purpose (see New York Const art I, § 7 [a]; Eminent Domain Procedure Law 207 [C] [4]). We answer this question in the affirmative…

Continue Reading There Really Are No Limits To Eminent Domain In New York – Court Of Appeals Reverses The Columbia Case (Kaur)