2010

The New Jersey Supreme Court today issued a unanimous opinion in Klumpp v. Borough of Avalon, No. A-49-09 (Jun. 22, 2010), the case the New Jersey Law Journal described as the “bizarre condemnation” after the Appellate Division held that the government can assert inverse condemnation in order to take property without compensation. 

It’s a detailed opinion, and we will post more details after we’ve had a chance to digest it, but here’s the bottom line:

  • The Borough placed a dune on the plaintiffs’ property in 1965, fenced it off to limit public access, and constructed an access path from the street to the beach over the property. A physical taking occurred no later than that date.
  • If the government takes property without undertaking eminent domain, the property owner can bring an inverse condemnation action. The statute of limitations for such claims is six years.
  • However, equity

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Continue Reading NJ Supreme Court And The “Bizarre Condemnation” – Klumpp v. Borough of Avalon

The Ninth Circuit’s en banc rent control takings case, set for oral argument in Pasadena tomorrow, has generated big interest.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the city’s mobile home rent control ordinance was a regulatory taking. The court found the case ripe under Williamson County, and addressed the merits of the takings claim. On March 12, 2010, the court ordered en banc review.

Twelve amici have filed briefs (10 supporting the property owners, and 2 supporting the City; available here on our resource page), and the court will be beaming the June 22, 2010 oral arguments live to the San Francisco, Portland, and Seattle courthouses at 2:00 p.m. if you can’t make it to Pasadena.

We will be in the Pasadena courtroom tomorrow, and…

Continue Reading Ninth Circuit Rent Control Takings Case (Guggenheim) Preview

Today, the U.S. Supreme Court denied review in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

This is the case challenging the constitutionality of the “undivided fee rule” as applied by the Wisconsin Supreme Court. That court concluded the rule requires a leasehold interest — which would be worth over $1 million if condemned separately — be valued at zero. [Disclosure: we filed an amicus brief for the National Association of Home Builders and the Wisconsin Builders Association in the case, supporting the VFW.]

More about the case, including the cert petition, BIO, and amicus briefs here. The Court’s docket entry is here.Continue Reading U.S. Supreme Court Declines Review Of Wisconsin’s Application Of The Undivided Fee Rule

Today’s Honolulu Star-Advertiser runs the editorial Perk of incumbency: Unequal time, about Hawaii’s “resign to run” requirement (article II, section 7 of the Hawaii Constitution), particularly the interplay with equal time in broadcast media:

The cynic might say that elected officials are candidates every day of their working lives. Attorney Robert Thomas, who admits to a little cynicism, observes this frequently these days when the bus he’s riding to work rumbles past the mayor’s campaign headquarters.

“When we pass the ‘Mufi for Governor’ signs, I think, ‘It must be nice having your campaign office there and not be a candidate yet,'” he said. “I can see why people are confused.”

Despite recent complaints about unofficial candidates maintaining a high profile, especially through their regular radio spots, this confusion is unlikely to lift anytime soon.

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To say [former Congressman Neil] Abercrombie [also a candidate for Governor] is unhappy, particularly…

Continue Reading Perpetual Campaigns And Hawaii’s “Resign To Run” Requirement

In its Thursday editorial, Common Sense and Private Property, the New York Times barely conceals its derision for both the property owners who instituted takings claims in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151, and the four-Justice plurality who set forth the standards for judicial takings, but who couldn’t convince a fifth that this was the right case in which to adopt those standards:

Not a single Supreme Court justice agreed with the harebrained notion that some Florida property owners were entitled to the extra land created when the state widened the beach in front of their houses. But in an opinion issued Thursday, four justices came very close to creating an equally harebrained precedent: that a court decision about the application of a state’s property laws can amount to a “taking” of private property, as if a city or state had…

Continue Reading NY Times On Stop The Beach Renourishment: Justice Thurgood Marshall Had “Harebrained” Ideas

Here’s a round up of the latest commentary and analysis of yesterday’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-1151.

Continue Reading Friday’s Stop The Beach Renourishment (Judicial Takings) Links

Today’s U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 is generating a lot of analysis and commentary. When the case was filed and argued, we suspected it would generate keen interest, so in anticipation, the ABA’s State and Local Government Law Section assembled an expert panel discussion of the case at the upcoming ABA Annual Meeting in San Francisco.

Update and Lessons of Stop the Beach Renourishment v. Florida Department of Environmental Protection is scheduled for August 6, 2010 from 2:30 – 4:00 p.m. at the Hilton San Francisco Union Square. I will be moderating the panel, which includes expert takings law advocates and scholars. All of us filed briefs in the case:

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Continue Reading ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)

Here are some links to analysis of today’s U.S. Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11:

Continue Reading Stop The Beach Links