Land use law

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UH Law Professor Carl Christensen has kindly invited me to discuss takings law with the students in his historic preservation seminar on Monday.  I think a good starting point is the granddaddy of historic preservation/regulatory takings decisions, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), a case that highlights the competing concerns when the public’s desire to preserve a historic structure collides with a landowner’s desire to make reasonable use of it.

That case also gave us the “ad hoc” (aka Penn Central) three-part regulatory takings standard that has confounded the courts ever since.

In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See…

Continue Reading ▪ Takings and Historic Preservation: Penn Central

New Jersey Eminent Domain blog posts a good summary of the Robbins v. Wilkie case currently pending in the US Supreme Court:

The critical issue for Robbins and other property owners asserting their 5th amendment rights is whether they can do so without fear of retaliation by government officials. Many property owners affected by eminent domain are reluctant to speak out, fearing government retaliation, which may come in the form of code enforcement, health and safety inspections — all done with an objective to force them to give up their property rights for redevelopment before, or even resisting, the eminent domain process.

Very true.  Not all retaliation against property owners is as overt as what the BLM officials are alleged to have done to Mr. Wilkie, and government “payback” may take many forms.  When such behavior goes too far, the law should recognize that property owners may seek relief in…

Continue Reading ▪ Retaliation for Asserting Constitutional Right of Property

In a cert decision issued today in Wailuku Agribusiness Co., Inc. v. Ah Sam  (No. 25930, Mar. 30, 2007), Supreme Court of Hawaii set forth the legal requirements for adverse possession in situations where there may be cotenants on the property claimed to have been adversely possessed. 

I won’t get into the facts of the case — they are dense, and the opinion sets them forth in great detail.  The Court’s ruling on the law is that if cotenants existed, it is “incumbent upon [the party claiming adverse possession] to prove it acted in good faith towards cotenants upon claiming adverse possession.” (slip op. 24).  Continue Reading ▪ Adverse Possession: “Openly, Notoriously, Continuously, Exclusively” And . . .

Martin Kasindorf at USA Today has written a story Land-use debate ugly in paradise about the competing sides about a proposed development on Molokai:

“There is trouble in paradise,” says Annie VanEps, 59, an art gallery manager who moved from California five yearsago. “This has split our island. Can’t we have one island that’s notdeveloped?”

Opponents of the proposal say Molokai needs toguard its stoplight-free rural lifestyle and scarce water more than itneeds 200 millionaires and 100 more jobs. Wariness toward moneyednewcomers who don’t adopt Molokai’s laid-back pace can have racialovertones, too.

On the other side of the coin:

John Sabas, vice president of Molokai Ranch, says the cattle operationis losing money and needs to sell land. To win community support, theranch is offering to give control of 51,000 of its 65,000 acres to aland trust for conservation, and to reopen a resort that closed in 2000with the loss of…

Continue Reading ▪ USA Today on Hawaii’s Land Use Dynamics

Which issue is more important when it comes to utilizing scarce federal judicial resources:

  • Can a student who unfurls a sign that says BONG HITS 4 JESUS sue his principal for suspending him? 
  • Which farting plush doll is the genuine one?  Does “Pull My Finger Fred®” or “Fartman” have the exclusive right to fart and say “did somebody step on a duck?” and “silent but deadly” when its finger is pulled?
  • Can federal officials be held liable when they retaliate against a property owner who refuses to surrender an easement across his land by cancelling the landowner’s easements across public property, filing false criminal charges against him, harassing the landowner’s guests, and  “inciting a neighbor to ram his truck into the [landowner] while he was on horseback.”

I juxtapose these issues — all presented in cases argued or decided on Monday —  not to disparage the importance of…

Continue Reading ▪ Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations

While Tribe said he sensed the justices were sympathetic to his Fifth Amendment argument, they were wary of creating new ways to sue government employees.

“There is a considerable amount of hostility for the possibility of opening up the floodgates of litigation against government officials,” Tribe said.

For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for…

Continue Reading ▪ Links to Further Wilkie Analysis

More background on the Wilkie v. Robbins case, argued yesterday.

The Jackson Hole (WY) Star Tribune posts more details about the landowner Harvey Frank Robbins in this story, and sums up the issue before the Court:

Among other considerations, the high courtwill have to decide whether the 5th Amendment, like the 1st and the4th, protects citizens from unlawful retaliation for exercising apresumed right.

I’d say that’s just about so.  It should seem unremarkable that the express personal right of property is as much a part of the Bill of Rights as other, perhaps more familiar constitutional rights such as free speech, a free press, and freedom of belief.  It’s all right there in the Fifth Amendment, which provides “nor shall private property be taken for public use, without just compensation.”  The personal nature of the right is reinforced by the Fourteenth Amendment, which provides “nor shall any…

Continue Reading ▪ More on Wilkie: Is Property A Personal Constitutional Right?

While there was much more attention devoted to today’s argument in the school free speech case, another appeal argued today — Wilkie v. Robbins — deserves some light since it addresses a core constitutional issue: can the government retailiate against a property owner for refusing to surrender a Fifth Amendment right? 

Whether “BONG HITS 4 JESUS” is protected by the First Amendment may be important (and certainly more headline-grabbing), but landowners and regulators should pay special attention to Wilkie, as it may be as critical is 2005’s infamous Kelo decision.  The transcript of the oral arguments is posted here.  The Solicitor General’s office argued for the BLM officials; Professor Laurence Tribe argued for the landowners.

In Kelo v. City of New London, a bare majority of the Court held that a property owner is nearly powerless to object to a government demand that she…

Continue Reading ▪ Property Rights in the Supreme Court: Today’s Argument in Wilkie