Land use law

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Here’s an opinion from the U.S. Court of Appeals for the Seventh Circuit that’s worth reading, if only to see why we like reading Judge Posner’s writings:

  • It uses contractions (Judge Kozinski would approve). Slip op. at 11 (“The rule doesn’t apply to an order of civil contempt…”); slip op. at 5 (“No court thinks, however, that this means the state can’t regulate property—can’t for example enact building codes and zoning regulations even though such measures limit the property owner’s right to do what he wants with his property.”)
  • It makes interesting use of explanatory parentheticals for case citations. Slip op. at 5 (“Hull v. Scruggs, 2 So.2d 543 (Miss. 1941) (property owner can kill a trespassing dog that has irresistible urge to suck eggs).”). You know we’re going to go read that case. Update: we now have read the case.
  • It

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Continue Reading Land Use Law Day At The Seventh Circuit: “Property Owner Can Kill A Trespassing Dog That Has Irresistible Urge To Suck Eggs”

No, not that Sgt Pepper taught the band to play (that was 20 years ago).

On Tuesday, December 4, 1979, the U.S. Supreme Court issued its landmark decision in Kaiser Aetna v. United States, 444 U.S. 164 (1979). My Damon Key colleagues Charlie Bocken and Diane Hastert briefed and argued a challenge to over a century of seemingly adverse precedent, and with the result garnered one of the very first modern opinions finding a regulatory taking. Read the opinion here.

Hawaii residents know this as the case which kept Hawaii Kai Marina (aka Kuapa Pond) private, and lawyers who practice takings, property, or navigation law know this as the case in which the majority opinion, authored by Justice Rehnquist, held that the navigational servitude is not a blanket exception to the Takings Clause, and just because a waterway is subject to regulation does not mean it is open…

Continue Reading It Was Thirty Years Ago Today…

We’re continuing our summary of the oral arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law. Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

The transcript is available here, and the property owners’ opening argument summary is here.

A Matter of Inches?

Scott D. Makar, the Florida Solicitor General, argued for the State. He began by distinguishing artificial avulsion and accretion. Tr. at 27-28. He characterized the renourishment as an avulsion, meaning the state would own the new beach under common law:

CHIEF JUSTICE ROBERTS: Well, is your view whenever the State does it, it’s an avulsion?

MR. MAKAR: If…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part II)

Today, the U.S. Supreme Court heard oral argument in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,No. 08-11 (cert. granted. June 15, 2009), the case in which theCourt is considering the theory of “judicial takings” and whether statecourts are constrained by the Fifth Amendment if they suddenly and dramatically change stateproperty law.

The transcript is available here. Justice Stevens did not participate.

Disclosure: we filed an amicus brief in the case supporting the property owners, available here.

New Law Or Old Hat?

Florida attorney D. Kent  Safriet, attorney for the property owners, started off by reminding that the basic premise in regulatory takings is that all branches of state government, including the judiciary, are bound by the Takings Clause. Tr. at 3-4.

Justice Ginsburg, as one might expect, seemed skeptical, suggesting that if beach restoration (“renourishment,” as they call it in Florida) was…

Continue Reading SCOTUS Oral Arguments In The Judicial Takings Case: Are “Background Principles” Of Property Law Completely Up To State Judges? (Part I)

On Wednesday, December 2, 2009, the U.S. Supreme Court will hear oral arguments in the biggest takings case of the year, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This is the case in which the Court is considering the theory of “judicial takings” and whether state courts are bound by the Fifth Amendment when they consider state property law. 

The case has been pitched as a contest between littoral property owners’ rights to have beach-front property (as opposed to beach-view property), and a state judiciary’s ability to adopt and shape a state’s common law.

The merits briefs, the 21 amicus briefs, and the decisions of the Florida state courts are available on our resource page. Disclosure: we filed an amicus brief in the case, supporting the property owners, available here.

The Court is considering…

Continue Reading Oral Arguments In Judicial Takings Case: Are State Courts Bound By The Takings Clause?

The Cato Institute’s Ilya Shapiro discusses Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case being argued in the U.S. Supreme Court on Wednesday.

We will post a preview of the arguments, but in the meantime, check out our resource page here (includes merits and amici briefs, and the decisions of the courts below).Continue Reading Cato Institute Podcast On Stop The Beach Renourishment (Judicial Takings) Case

Hartman Remember Phil Hartman’s classic Saturday Night Live routine, “Unfrozen Caveman Lawyer” —

One hundred thousand years ago, a caveman was out hunting on the frozenwastes when he slipped and fell into a crevasse. In 1988, he wasdiscovered by some scientists and thawed out. He then went to lawschool and became… Unfrozen Caveman Lawyer.

We can’t summarize the skit any better than wikipedia:

The running gag was that [Hartman] would speak in a highly articulateand smoothly self-assured manner to a jury or an audience about howthings in the modern world supposedly “frighten and confuse” him. Hewould then list several things that confounded him about modern life orthe natural world, such as: “When I see a solar eclipse, like the one Iwent to last year in Hawaii, I think ‘Oh no! Is the moon eating thesun?’ I don’t know. Because I’m a caveman — that’s the way I think.”This pronouncement…

Continue Reading Unfrozen Caveman Judges “Frightened And Confused” By Blight

The New York Court of Appeals issued its opinion in the appeal regarding the Atlantic Yards redevelopment project, Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009). This case was a challenge to the taking under the New York Constitution.

While we have not yet fully digested the 66 pages of opinion, concurrence, and dissent, but the short story is that the court allowed the taking of non-blighted property to go forward, holding that a blight finding by an agency is not judicially reviewable:

It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for that of the legislatively designated agencies; where, as here, “those bodies have made their finding, not corruptly or…

Continue Reading New York Court Of Appeals: Agency Can Blight The Baby With The Bathwater With No Judicial Oversight

Things we were reviewing today:

  • My colleague Mark Murakami has set up a resource page for all things about the McDonald v. City of Chicago case. That’s the appeal currently being considered by the Supreme Court challenging Chicago’s ability to regulate firearms under the Second Amendment. What’s most interesting about the case is not the gun issue, but the legal arguments regarding whether the Privileges or Immunities Clause incorporated the entire Bill of Rights against the states. Slaughter-House, anyone?
  • The Texas Supreme Court today heard oral arguments in Severance v. Patterson (a case we discussed here). It is in the Texas court on certified questions from the Fifth Circuit. More here including the briefs, and the archive of the video of the arguments here. The certified questions

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Continue Reading Thursday’s Links

Another very interesting conference call today, focusing on theupcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals’ decision in Aspen Creek, and the New Jersey Supreme Court’s decision to review Klumpp v. Borough of Avalon. Here arethe links to some of the cases and other topics discussed duringtoday’s call, and other items of interest which we didn’t have time for:

  • A resource page for the Stop the Beach Renourishment case – merits and amici briefs, media links, and commentary.
  • Our summary of the New York court’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).
  • More about the “bizarre condemnation,” Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

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Continue Reading Links From ABA Condemnation Committee Conference Call (11/18/2009)