Inverse condemnation

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In an order issued yesterday, the U.S. Supreme Court granted the SG’s motion for leave to participate in oral argument as amicus curiae and for divided argument in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The federal government’s amicus brief is available here.

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief in the case…

Continue Reading Solicitor General To Get Face Time In Judicial Takings Case

Remember a while back when we noted that a property owner has asked the New Jersey Supreme Court to review what we called a “Kafkaesque” decision by the Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation?  See Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam).

Well, we’re not alone.  The New Jersey Law Journal today published an editorial entitled “A Bizarre Condemnation.” It’s not available on-line except for subscribers, but we will note some of the key passages:

Rarely is there an appellate decision so bizarre that it leaves seasoned lawyers and laypersons alike shaking their heads in disbelief. It is a basic premise of constitutional law that the government may not take property without due process and just compensation. Yet according to Klumpp v. Borough of Avalon, 2009 WL 2341554 (July 31, 2009), a New Jersey…

Continue Reading “A Bizarre Condemnation”

Update: In this order, the Court declined to review the case.

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On Monday, October 19, 2009, the Supreme Court is scheduled to consider whether to review the Alaska Supreme Court’s decision in Reust v. Alaska Petroleum Contractors, Inc., 206 P.3d 437 (Alaska, Apr. 10, 2009).

The case is listed on SCOTUSblog’s list of “petitions to watch.”

The Questions Presented:

The Supreme Court of the State of Alaska upheld the validity of a state statute that took a percentage of Reust’s recovery in a civil action for public use, aligning the Alaska Supreme Court with the Ninth Circuit and six State Supreme Courts that have held such statutes constitutional and furthering the split with two State Supreme Courts that have held such statutes violate the Takings Clause of the Fifth Amendment to the United States Constitution. The first question presented is:

1. Whether a state…

Continue Reading U.S. Supreme Court Considering Whether To Review New Case: Is Gov’t Grab Of 50% Of Punitive Damage Award A Taking?

The County of Maui has filed its Answering Brief in Leone v. County of Maui, No. 29696, an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the property owners’ Opening Brief (here).

Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision isavailable here.

The County’s brief argues the takings claims are not ripe for review because they “have not alleged nor can they demonstrate they have attempted to obtain…

Continue Reading Government Brief: Landowner Must Seek To Change Land Use Designations To Ripen Federal Takings Claim

With apologies to Jeff Foxworthy, you might be a regulatory takings maven if…you instantly understood this post’s headline, and eagerly clicked through to read the story.

But you don’t have to be a takings nerd to appreciate the import of today’s Ninth Circuit decision in Los Altos El Granada Investors, v. City of Capitola, No, 07-16888 (Oct. 7, 2009). The court held that federal constitutional claims do not have to be litigated in state court:

Despite clear language from the Supreme Courtestablishing that “a state court determination may not be substituted,against a party’s wishes, for his right to litigate his federal claimsfully in the federal courts,” England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 417 (1964), two California courts determined that this right to a federal forum was “irrelevant” andstruck appellant’s clear reservation of its federal claims from itscomplaint. The district court then determined that…

Continue Reading Ninth Circuit Weighs In On England Reservations In Williamson County Ripeness

In “Supreme Court’s Regulatory Takings Case Draws Widespread Interest,” the New York Times reports about yesterday’s filings by amici supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The Supreme Court would likely resist such overt involvement intakings disputes, according to Jay Austin, senior attorney with theEnvironmental Law Institute.

“The only thing that petitionershave to cite to even suggest any precedent is a concurring opinion byformer Justice Potter Stewart in another beach case 40 years ago,”Austin said.

“Well, he’s the justice who famously said aboutobscenity that ‘I’ll know it when I see it.'” This case would put thejustices in the same position, he said, adding: “Just like they had toscreen films in the basement of the Supreme Court to see whether theywere obscene, they’d have to wade into all of…

Continue Reading NY Times On Gov’t Amici In Florida Beach Judicial Takings Case

Several amicus briefs have been filed supporting the government’s position in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

The government’s merits briefs are posted here.

We filed an amicus brief supporting the property owners, which is available here. The property owners’ merits brief is available here. The other amici briefs supporting the property owners are posted here, here, and here. All briefs and more about the case on…

Continue Reading Amicus Briefs Supporting The Gov’t In Florida BeachTakings Case (aka Judicial Takings Case)

WavesOn Tuesday, November 10, 2009, at 9:00 a.m., the Hawaii Intermediate Court of Appeals will hear oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175. The arguments will take place in the Supreme Court courtroom at Aliiolani Hale.

The ICA panel will consist of Judges Nakamura, Watanabe and Foley.

The issue in thatcase is whether the state, or littoral landowners, are entitled toownership of certain accreted lands. In “Act 73,” (codifed here and here) the legislature declared that shoreline land naturally accreted belongs to the State of Hawaii and is public property. The act overturned the age-old rule of shorelineaccretion and erosion, which held that beachfront owners lose ownershipof land when it erodes, but gain it when it accretes. Instead of thesebalanced rules, Act 73 made the erosion/accretion equation one-sided:the State gets it every time.  

The trial court held that Act 73…

Continue Reading Upcoming Hawaii Appellate Court Oral Arguments In Beach Takings Case

Here are the respondents’ merits briefs in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

We filed an amicus brief supporting the…

Continue Reading Government Merits Briefs In Florida Beach Takings Case aka The Judicial Takings Case

Brevard County, Florida, has filed an amicus brief supporting the government in the beachfront taking case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In Walton County v. Stop the Beach Renourishment, Inc.,998So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. The U.S. Supreme Court isconsidering whether the Florida court’s reversal of more than 100 yearsof Florida law was a judicial taking, and whether the Florida court’sdecision violated due process.

The brief argues that under the Tenth Amendment the Florida legislature must first resolve a conflict between provisions in the Florida Beach and Shore Preservation Act regarding whether the…

Continue Reading Amicus Brief Supporting Gov’t In Beachfront Takings Case: Statute Didn’t Eliminate Common Law Rights, It Enhanced Them