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In What’s At Stake in Stop the Beach Renourishment, Lawprof D. Benjamin Barros posts a comprehensive summary of “judicial takings” case accepted for review by the US Supreme Court, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Raises several interesting points and worth a read.Continue Reading PropertyProf’s Summary Of The SCOTUS Beachfront Takings Case

Here are items which we’ve been reviewing today:

  • Dwight Merriam’s thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor.
  • A report that the “Florida Hometown Democracy” initiative has made the 2010 ballot. According to the report “[i]f the proposal gets 60 percent approval at the polls, HometownDemocracy would require local referendums on changes to city and countycomprehensive plans.”
  • The New York Court of Appeals (that state’s highest court) will be hearing arguments in the Atlantic Yards cases. The NY Observer‘s report here, and the NY Times report here.
  • Speaking of takings for sports facilities, Professor Gideon Kanner dishes on using taxpayer money to attract and support stadiums and arenas.

Continue Reading Tuesday Round-Up

The U.S. Supreme Court last week agreed to review the Florida Supreme Court’s decision in Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), which heldthat a state statute prohibiting “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. See Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.

The Court accepted three questions for review, and the cert petitionrelied on two rather notorious cases with Hawaii origins to support theconclusion that a decision by a state court which unexpectedly changesestablished state common law rules of property is a compensable taking.See Pet. at 31-32 (citing Robinson v. Ariyoshi…

Continue Reading On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment

I’ve been reading some noteworthy law journal articles on the subject of eminent domain —  two on the issue of pretext, and one on just compensation. Worth reviewing.

  • Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77 Fordham L. Rev. 3095 (2009).

    The plaintiffs in Goldstein based their pretext claims on both Justice John Paul Stevens’s brief discussion of pretext in the majority opinion of Kelo and Justice Anthony Kennedy’s more lengthy discussion in his concurrence. Acknowledging that “[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption . . . of invalidity is warranted,” Kennedy’s fifth-vote concurrence identified the possibility of “a more stringent standard of review than [rational basis review] for a more narrowly drawn category of takings.” Although the Second Circuit rejected the application of this heightened pretext standard in Goldstein,

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Continue Reading Eminent Domain Academic Round-Up: Pretext And Compensation

The Eminent Domain Law Blog, published by our colleagues at Owners’ Counsel of America, has summarized Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11, the takings and due process case which the U.S. Supreme Court agreed yesterday to review. 

Beachfront property owners along Florida’s Gulfcoast, have been tryingto stop an effort by local and state officials to restore the beachthrough renourishment, a process by which sand is dredged from theocean floor, transported through pipes and distributed along erodedbeach areas, in essence adding sand to widen the beach. This proposedbeach renourishment project would cover nearly seven miles of shorelineand widen the beach by approximately 210 feet in Destin, FL.

Akey issue in the litigation thus far, which has moved from CircuitCourt to the First District Court of Appeal to the Florida SupremeCourt, is that by adding sand to the waterfront and restoring thebeach,

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Continue Reading More Background On The Supreme Court’s Beachfront Takings Case

Here are links and other items of interest about Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

  • Dwight Merriam’s thoughts at IMLA’s Local Government blog.
  • Pacific Legal Foundation’s (the only organization to file an amicus at the cert stage) summary of the issues.
  • Law of the Land blog’s summary.

Continue Reading SCOTUS Beachfront Takings Case Links

In Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the US Supreme Court agreed to review a case that raises several important takings issues, including the issue of whether a court decision can take property. The ABA Journal’s July 2006 report “Up Against the Seawall” tells the backstory on the case and highlights other beach issues.

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits “beach renourishment” without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:

The Florida Supreme Court invoked “nonexistent rules of state substantive law” to…

Continue Reading SCOTUS To Review Beachfront Takings Case: Can A Court Decision “Take” Property?

Our thanks to Dwight Merriam for responding to yesterday’s post on “Maui Mansionism” and noting the more common terms “McMansion,” “starter palace,” and (my favorite) “garage Mahal.”  He’s also kindly forwarded two powerpoint presentations on regulation of big and tall homes: Monster Mash: Putting a Stop to Too-Big Houses (3mb pdf) and Teardown and Mansionization (4mb pdf).  Read his land use posts at IMLA’s Local Government blog, and his book The Complete Guide to Zoning which we reviewed here.
Continue Reading More On McMansions

I learned a new -ism word today thanks to an article in the Maui News forwarded by my Damon Key colleague Mark Murakami.  Currently, Maui’s “Hotel” zoning allows the property owner to build an apartment or a single-family residence as well as a hotel, but in Mansionism discouraged on land with hotel zoning, Harry Eagar writes:

The Maui Planning Department would like to take a stand againstcreeping mansionism in the hotel district, but Planning Director JeffHunt says the best way to approach the problem remains under discussion.

…

The draft hotel bill would delete apartments and single-family houses as permitted uses in hotel zones.

Generally, a less-intensive use within a district is seen as a good thing, and the article points out that “the community was pleased when that lot was ‘saved’ from dense hotel development.”  Yet, building a large house is now characterized as some sort of…

Continue Reading Mansionism Discouraged On Maui …”Mansionism?”