2010

Two unreported opinions arising out of cases from New Jersey. We won’t be reviewing them  (they are not precedential after all), but you may want to check them out if you are interested in public use and redevelopment (case #1), or inverse condemnation by permit denial (case #2):

  • RLR Investments, LLC v. Town of Kearny, No 09-3100 (3d Cir., July 2, 2010) (“This appeal is centered on the “public use” requirement for the governmental taking of private property. The appeal presents a number of overlapping and interrelated claims set out in a ten count complaint. We conclude that the District Court’s judgment in favor of the governmental entry should be affirmed.”).

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Continue Reading New Jersey Monday

Not much new in Numont v. State of Florida, No. 04-13610 (11th Cir., July 2, 2010) (per curiam). There, property owners sued to enjoin a Monroe County (aka the Florida Keys) ordinance that prevents “vacation rentals.” The opinion makes short work of two issues.

First, the court disposed of the claim that the ordinance was not properly adopted because it underwent “substantial or material” changes during the adoption process. The federal court certified the question to the Florida Supreme Court, which answered that the changes made conformed to the public notice, the ordinance was properly adopted.

Second, the property owners’ takings claim was not ripe since they conceded they had not sought relief in state court. The court rejected the property owners’ claim that doing so would be futile because the ordinance was “part of a larger regulatory effort to ban vacation rentals, an effort that they had challenged…

Continue Reading 11th Circuit: Ixnay On The Vacay Rental Lawsuit

What we’re reading today – not all of it property or land use law related:

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Continue Reading Friday Round-Up: Kagan On Property, RLUIPA, Second Amendment, CEQA, And Title VII (Yes, Title VII)

Think property rights are a “conservative” issue? To challenge that notion, read Black Landowners Fight to Reclaim Georgia Home in today’s New York Times. It tells the story of African-American property owners whose homes were condemned years ago, who now may have a second chance:

In 1942, Harris Neck, a thriving community of black landowners who hunted, farmed and gathered oysters, was taken by the federal government to build an airstrip. Now, the elders — who remember barefoot childhoods spent climbing trees and waking to watch the Canada geese depart in formation — want to know why they cannot have it back.

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Harris Neck was deeded by a plantation owner to a former slave in 1865. Black families who settled there built houses and boats and started crab and oyster factories. But the community, many descendants suspect, was too independent for the comfort of McIntosh County’s whites.

During…

Continue Reading Are Property Rights A “Conservative” Issue?

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