2010

Professor Ben Barros has posted the first analysis and summary of today’s Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11. See Supreme Court Rules in Stop the Beach.

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court’s judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court’s opinions and with links to commentary about the case.

We will be posting some thoughts after a chance Continue Reading First Summary And Analysis Of Stop The Beach Renourishment Judicial Takings Case

Things I never thought I would see in a Supreme Court opinion include the riddle “how much wood would a woodchuck chuck if a woodchuck could chuck wood,” but there it is, in black and white on page 11 of Justice Scalia’s opinion today in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is…

Continue Reading Scalia, J.: “How Much Wood Would A Woodchuck Chuck If A Woodchuck…”

This just in: the Supreme Court has issued opinions in the judicial takings case, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted June 15, 2009):

JUSTICE SCALIA delivered the opinion of the Court with respect to Parts I, IV, and V, concluding that the Florida Supreme Court did not take property without just compensation in violation of the Fifth and Fourteenth Amendments. Pp. 24–29.

(a) Respondents’ arguments that petitioner does not own the property and that the case is not ripe were not raised in the briefs in op-position and thus are deemed waived. Pp. 24–25.

(b) There can be no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral property owners had rights to future accretions and to contact with the water superior to the State’s right to fill in its submerged land. That showing cannot be…

Continue Reading Opinion In Judicial Takings Case – Stop The Beach Renourishment v. Florida Dept Of Environmental Protection

The WMA Reporter, the monthly publication of the Western Manufactured Communities Housing Association has published A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak), my short article that attempts to deconstruct some of the more common terms property lawyers toss about. Here’s the Introduction:

One of my law school professors once remarked (hopefully in jest) “if it ain’t Latin, it ain’t the law.” While thankfully we have moved away from the days when Latin and Norman French were the languages of the law, those of us who regularly represent property owners defending their rights sometimes toss about terms that, although they purport to be standard English, often make normal people look at us askance.

We may forget that not everyone might understand what we mean when we say, for example, “The court dismissed the regulatory takings claim on ripeness grounds under Williamson County because the…

Continue Reading A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak)

The_men_who_stare_at_goats According to this news release, the Ninth Circuit will offer remote viewing of the upcoming oral arguments in three en banc cases, including the rent control takings case, Guggenheim v. City of Goleta (which we’re following here). 

“Remote viewing” does not mean you have to psychically tune into the arguments, nor does it equal webcasting as many state appeals courts do. Instead, it means that if you are in San Francisco, Portland, or Seattle and you find yourself in the neighborhood of the Ninth Circuit’s courthouse in those cities at 2pm on Tuesday, June 22, 2010, you can watch a live video and audio feed.

Get thee to the courthouse: it’s “first-come-first-served” according to the news release.

Us? We’re going to be in L.A. that day, so we plan to camp out on the courthouse steps like those Star Wars and iPhone people to insure ourselves a…

Continue Reading The Men Who Stare At Judges: 9th Circuit To Provide “Remote Viewing” Of En Banc Oral Arguments

On Tuesday, June 22, 2010 starting at 2:00 p.m., the U.S. Court of Appeals for the Ninth Circuit will hear oral arguments in the en banc review of a takings challenge to the City of Goleta’s mobile home rent control ordinance (RCO).

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge panel held the city’s RCO was a regulatory taking. The court found the case ripe under Williamson County, and addressed the merits of the takings claim under the three-factor regulatory taking test of Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

On March 12, 2010, the court ordered en banc review.

The arguments will take place in Courtroom Three of the Richard H. Chambers Courthouse (125 South Grand Avenue, Pasadena, California). While we won’t be able to live blog the arguments, we are

…
Continue Reading June 22 Oral Arguments In Ninth Circuit Rent Control Takings Case (Guggenheim)

Most of the time when we think of impact fees and other development exactions, Nollan and Dolan spring immediately to mind. In those two cases, the Court established the requirement that exactions have a reasonable relationship (“nexus”) to some ill caused by a proposed development, and be “roughly proportional” to the impact created by the development.

Absent a nexus and proportionality, an exaction is “not a valid regulation of land use but ‘an out-and-out plan of extortion.'” Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (citations omitted). The Court was worried that absent a nexus and proportionality, impact fees, in-lieu fees, and development exactions were a form of “pay to play” where local governments take advantage of the fact that a property owner seeks development approvals, to leverage land other property or cash to address impacts not caused by the property owner.

However, Nollan/Dolan is not…

Continue Reading Impact Fee Not Reasonably Related To Burden Created By Development

In City of Oakland v. Schenck, 197 Cal. 456 (1925), the California Supreme Court held that when a railroad’s property is being taken, nominal compensation and not fair market value may be the appropriate measure of “just compensation.”

Schenck held that “where a street is opened across a railroad right of way, the rule as to the amount of compensation to be allowed the railroad company is different from the rule which prevails in the case of the taking of the property of an individual for like uses.” Schenck, 197 Cal. at 460-61. Nominal compensation may be due if the property’s use as a railroad will not be greatly impacted by placing a road across it. In other words, putting a road across railroad tracks don’t substantially impact the value of the railroad tracks.

In City of San Jose v. Union Pacific Railroad Co., No. H033503 (June…

Continue Reading Cal. Ct. Appeal: Nominal Compensation In Takings Of Railroad Property

Today, by a 3-2 vote, the Hawaii Supreme Court declined to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that “Act 73” (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and filed an amicus brief urging the Hawaii Supreme Court to accept certiorari.

In Act 73, the Hawaii Legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called “future accretions.”

The court…

Continue Reading HAWSCT Denies Cert In Beach Accretion Case

Here are two opinions just received that look awfully interesting, but that we haven’t had a chance to read in detail:

  • Beyer v. City of Marathon, No. 3D08-2864 (Fla. Dist. Ct. App. June 9, 2010) – denial of Beneficial Use Determination started limitations period on an as-applied takings claim, meaning that inverse condemnation complaints were timely filed.

More details to follow.Continue Reading New Opinions: Inverse Condemnation Statute Of Limitations, Impact Fee Nexus