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“silk purse” but our JD is from a “sow’s ear” Continue Reading Of Pruneyards, Woodchucks, And Waterborne Hot Dog Stands: Justice Scalia’s “Silk Purse” Prose In Stop The Beach Renourishment
ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)
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:
- Jim Burling, Pacific Legal Foundation
- John Echeverria, Vermont Law School
- Richard Frank, University of California Boalt Hall Law School
Continue Reading ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)
Stop The Beach Links
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:
- Unclear Outcome in Key Supreme Court Property Rights Case (Volokh Conspiracy)
- Stop the Beach: The Difference a Recusal Can Make (Blog of Legal Times)
- A Funny Things About “Substantive Due Process” (Volokh Conspiracy)
- Supreme Court Rules in Stop the Beach (PropertyProf Blog)
- Judicial takings in Stop the Beach Renourishment (PLF Liberty Blog)
- So Why Not Roe? (Volokh Conspiracy)
- Justice Sotomayor Better On Property Rights Than Breyer and Ginsburg. Cool. (Josh Blackman’s Blog)
First Summary And Analysis Of Stop The Beach Renourishment Judicial Takings Case
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
Scalia, J.: “How Much Wood Would A Woodchuck Chuck If A Woodchuck…”
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…”
A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak)
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 Judges: 9th Circuit To Provide “Remote Viewing” Of En Banc Oral Arguments
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
June 22 Oral Arguments In Ninth Circuit Rent Control Takings Case (Guggenheim)
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)
HAWSCT Denies Cert In Beach Accretion Case
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
New Opinions: Inverse Condemnation Statute Of Limitations, Impact Fee Nexus
Here are two opinions just received that look awfully interesting, but that we haven’t had a chance to read in detail:
- Homebuilders Ass’n Tulare/Kings Counties, Inc. v. City of Lemoore, No. F057671 (Cal. Ct. App. June 9, 2010) – invalidating a fire protection impact fee under California’s Mitigation Fee Act because “it is not reasonably related to the burden created by the development project.”
- 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