Land use law

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Here’s a case that reveals exactly what is wrong with the Supreme Court’s ripeness doctrine in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). As we noted in this post, it’s “a seemingly endless procedural game where property owners are forced to keep guessing which shell the pea is under, all the while paying their attorneys to litigate matters having nothing to do with the question of whether a local government’s regulations have gone ‘too far.'”

The Oregon Supreme Court’s opinion in West Linn Corporate Park v. City of West Linn, No. S056322 (Sep. 23, 2010) only confirms our belief that the Court never intended Williamson County to be wielded in this fashion, and in effect deny property owners their day in court.

This case has a tortured procedural history. It started off in state court, as required by Williamson County. The property…

Continue Reading Williamson County Unbound: Takings Case Starts In State Court, Is Removed To Federal Court, Is Certified To State Court, Which Decides The Case On Federal Law

No, thankfully this post is not about the MTV show, but who owns the new dry sand created when the government “replenishes” beaches. In a case reminiscent of the U.S. Supreme Court’s decision in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), the New Jersey Supreme Court unanimously concluded that a beachfront property owner was not entitled to compensation for the city’s taking of his property — a beach created by the city’s beach replenishment program — because the replenished beach was a common law “avulsion” and therefore belonged to the public.

In City of Long Branch v. Liu, No. A-9-09 (Sep. 21, 2010), as part of a redevelopment project, the city condemned littoral property owned by the Liu family. The parcel was described by metes-and-bounds, with the easternmost boundary being described as the “high water mark of the Atlantic…

Continue Reading Jersey Shore Belongs To The Public, Not Private Owners

We’ve been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners’ Counsel of America colleagues Dennis Dunphy and Jill Gelineau have launched a new blog focusing on condemnation and land use issues in the Pacific Northwest. They are partners in Schwabe Williamson & Wyatt (in Seattle and Portland, respectively) and will focus on condemnation issues in the region.

They’ve actually been blogging since early 2010, but have recently picked up steam.

Check out Schwabeblog: Condemnation. Worth following.Continue Reading New Condemnation Law Blog Focuses On Pacific Northwest

Check it out: the William and Mary Property Rights Project and the Institute of the Bill of Rights Law will present the 7th Brigham-Kanner Property Rights Conference on September 30 to October 1, 2010. The recipient of this year’s prize is lawprof Carol M. Rose (U. Arizona).

More information, including a link to registration information here, from the Owners’ Counsel of America blog.
Continue Reading Upcoming Conference: 7th Annual Brigham-Kanner Property Rights Conference (9/30)

The littoral property owners who won a partial victory in the Hawaii appellate courts have filed this cert petition asking the U.S. Supreme Court to review the decision of the Hawaii Intermediate Court of Appeals which concluded that ownership of beachfront property includes only a partial right to accreted land. In Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), the ICA held that held that “Act 73” (codifed here and here), the statute in which the legislature simply redefined accretion as public propertywas a taking, but accepted the State’s argument that Act 73 did not affect a taking of what it called “future” accretion, because the right is simply a contingent future interest.

In Act 73, the Hawaii Legislature changed over a century of common law and declared that title to shoreline land naturally accreted cannot…

Continue Reading Cert Petition In Hawaii Beach Takings Case: Is The Right To Accretion A “Property” Interest?

Worth listening: this LexisNexis podcast. Details:

On this edition, Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law at the Levin College of Law, University of Florida, discusses what real estate practitioners can learn from the U.S. Supreme Court’s decision in Stop the Beach Renourishment, Inc. v. Florida DEP and what it suggests about policies affecting the Oil Spill in the Gulf of Mexico. Topics include avulsion, accretion, and the possibility of “judicial taking.”

Continue Reading Podcast On The Judicial Takings Case (Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envt’l Protection)

You may have missed the live program, but it’s still not too late to get the podcast of a recent discussion of Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the Supreme Court case about judicial takings and beachfront property. Here’s the course description from ALI-ABA:

In an unusual takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Florida Supreme Court relied on state real property law to conclude that the objecting beachfront property owners lacked a valid property right, and thus the state could “renourish” the beaches. The beachfront owners appealed to the U.S. Supreme Court, asking it to recognize a new doctrine of judicial takings.

On June 17, 2010, the Supreme Court issued its opinion, which may be a partial victory for property-rights advocates. Chief Justice Roberts, and Justices Scalia, Thomas, and Alito all endorsed the idea that…

Continue Reading Another Podcast On The Judicial Takings Case (Stop The Beach Renourishment v. Florida)

We all live under the threat the government may exercise eminent domain and take our property, and must live with that cloud, unless the threat becomes more concrete. Only then can we run to court to complain about it. While the U.S. Court of Appeals for the Seventh Circuit didn’t expressly hold so, that idea underlay its decision in Rock Energy Cooperative v. Village of Rockton, No. 10-1106 (Aug. 10, 2010) (sounds like something out of “The Flintstones,” no?).

In that case, Rock Energy sought a declaratory judgment from the federal district court that the Village does not have the authority to purchase or condemn its property. We leave the details for you to review, but here is the most interesting part of the decision in our view:

We begin with Rock Energy’s eminent-domain theory. The company would like us to believe that its Alliant assets are…

Continue Reading Seventh Circuit: Threat Of Eminent Domain No “Sword Of Damocles,” So Declaratory Judgment Suit Premature

Courts have equitable powers to fashion remedies that the law may not account for, but does a state’s judicial power stretch so far as to allow it to order a property owner to sell an acre of property (at fair market value) to a neighbor who had built an encroaching structure over the property line due to the erroneous words of a surveyor, even though the neighbor could not prove adverse possession or any other theory that would entitle its building to continue to encroach?

In Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), a deeply divided (5-4) Washington Supreme Court held that even though the encroaching property owner was not entitled to adversely possess the property, the court would order an appraisal of the property, and force the owner to sell it. Our thanks to the Supreme Court of Washington Blog and to our colleagues at the Eminent…

Continue Reading Why Isn’t This A “Judicial Taking?” Washington Supreme Court Orders Property Owner To Sell To Neighbor

The Hawaii Supreme Court in an opinion authored by Chief Justice Moon and joined by Justices Nakayama and Duffy (Justices Acoba and Recktenwald concurred separately), held that an administrative appeal regarding the disinterment of Native Hawaiian burial remains discovered at the Ward Village shops site in Honolulu was moot, but that the “public interest” exception to the mootness doctrine required the case be heard:

On application, Kaleikini essentially argues that the ICA erred in dismissing her appeal as moot. As discussed more fully infra, we agree with the ICA that Kaleikini’s  direct appeal was moot; however, unlike the ICA, we hold that Kaleikini’s appeal falls within the public interest exception to the mootness doctrine. Additionally, in addressing the merits of Kaleikini’s appeal, we hold that the circuit court erred in dismissing Kaleikini’s agency appeal for a lack of subject matter jurisdiction because Kaleikini met the requirements of HRS §…

Continue Reading HAWSCT: Native Hawaiian Burials (Iwi) Case Moot, But Exception Applies