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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

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

Yesterday, we attended and posted a long summary of the en banc oral arguments in Guggenheim v. City of Goleta, the case challenging the city’s mobile home rent control ordinance as a regulatory taking, now pending in the Ninth Circuit.

Today, the court posted the sound recording of the argument.

Download it here (caution, it is a 23 MB wma file, meaning you’d best have a broadband connection and a Windows Media Player).

The argument was also broadcast from the Pasadena courthouse to the San Francisco, Portland, and Seattle courthouses, so we’re hoping that the video is eventually posted. The issues in the case aside, it was a very good example of high-level appellate advocacy.Continue Reading Oral Argument Recording In Ninth Circuit Rent Control Taking Case (Guggenheim)

Continued from Part II

The court was not much easier on the City’s attorney, even though one might think that the hard time they gave the property owners’ counsel indicated they were more sympathetic to the City’s arguments.

Right off the bat, Judge Callahan asked Schwartz whether he “conceded” [appellate advocate alarm bells going off] that there can be a facial Penn Central taking. This seemed to be a response to Judge Rymer’s questions to the property owners’ lawyers of whether “there is such an animal.” If Schwartz were to concede it, issue gone. He did concede it, but only barely. “Yes,” he answered, there can be such a thing, but it is difficult to imagine it, since the Penn Central test is “an ad hoc, factual inquiry.” Judge Callahan asked whether the Penn Central factors “bleed over to the merits” of a facial challenge, and whether the court…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. III

Continued from Part I

Coldron seemed to sense that the court was in danger of veering off track and buying into the argument in the amicus brief filed by the League of California Cities and California State Association of Counties in support of the city about the claim being time-barred. Judge Clifton returned to his initial barrage of questions and asked whether the ordinance was the same after the City incorporated, and whether the park owners were seeking a “windfall” from that event. Recall that Goleta was originally not an incorporated city, so these parks were subject to the County’s mobile home rent control ordinance. When the City incorporated, the County ordinances continued in effect for a time, and after a gap (another issue in contention), the new City of Goleta adopted its own mobile home rent control ordinance.

Coldron responded to Judge Clifton’s question by noting that “there is…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. II

2010-06-22 12.55.09 Even in the rarefied, academic atmosphere of an appellate court, an advocate must sometimes have a thick skin. Today’s Ninth Circuit en banc oral arguments in the rent control takings case, Guggenheim v. City of Goleta, was one where the two lawyers who argued the case certainly came away with a few callouses. 

Guggenheim is the appeal from an unsuccessful challenge to the City of Goleta’s mobile home rent control ordinance. The district court ruled against the mobile home park owners who asserted the ordinance worked a regulatory taking of their property.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge Ninth Circuit panel reversed, however, and held 2-1 that the challenge was ripe under Williamson County, and ruled the ordinance was a facial taking by applying the three-part Penn Central test. The court remanded the case to the…

Continue Reading Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. I

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

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