Regulatory takings

Subscribe to Regulatory takings via RSS

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

As I mentioned here, in August, I became the Chair of the Committee on Condemnation Law, a part of the ABA’s State and Local Government Law Section. The Committee includes some very experienced practitioners and scholars, private and government attorneys, and newer lawyers and law students looking to gain experience and a collegial network. The topics we follow are not limited strictly to “condemnation” or “eminent domain,” and include regulatory takings and inverse condemnation, and pretty much anything that can be of interest to condemnation attorneys.

We’re looking for ways to communicate better with committee members and disseminate information about upcoming CLE teleconferences (some low cost, and some free of charge), new decisions and developments in our area of law, publications, and so forth.

One of the ways is to revive the committee listserv (e-mail distribution list), which has lapsed into semi-dormancy in the last few…

Continue Reading Condemnation Law Committee – Come Join The Conversation

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

The District Court has denied cross-motions for summary judgment on the due process claims in the case challenging Maui County’s 40-50% affordable housing exaction, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.). The court’s order is available here.

The court’s denial focused mostly on procedural issues and the fact that most of the issues raised in the motions were already decided by the court in prior motions for summary judgment. The court concluded that there are facts at issue regarding plaintiffs’ bias claim, and rejected the County’s motion for a number of reasons as explained beginning at page 15 of the order.

Jury trial will begin on March 2, 2010.Continue Reading Cross-Motions On Due Process Issue Denied In Maui Affordable Housing Exaction Case – Next Up, Jury Trial

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

Four amicus briefs have been filed in Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009), urging the Supreme Court to review United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008). In that case, the Ninth Circuit held that six rules applied by shopping centers to restrict picketing andhandbilling by union members violated the California Constitution’s freespeech clause and therefore impermissibly interfered with protectedunion activity. The decision required shopping centers to allow speech adverse to the shopping centers’ financial interests on their properties. We summarized the Ninth Circuit’s decision here.

…
Continue Reading Amicus Briefs Supporting Cert: Is Forcing A Property Owner To Allow Adverse Speech A Taking?

In a lengthy opinion — it comes in two volumes — the Ninth Circuit again takes on a mobile home rent control ordinance, this time with a better result than usual for the property owners. The court determined the ordinance worked a taking, and remanded the case for a calculation of just compensation. Guggenheim v. City of Goleta, No. 06-56306 (Sep. 28, 2009). Because the case is long, we haven’t had a chance to digest it yet, but here’s the court’s conclusion:

We therefore reverse the district court’s judgment on the takings claim and remand to the district court for further proceedings. On remand, the district court may of course consider  any materials presented by either party that are relevant to determining the total amount of just compensation due to the Park Owners. See, e.g., Cienega Gardens, 331 F.3d at 1354. As noted in Part III.A.1…

Continue Reading New Ninth Circuit Case: Mobile Home Rent Control Ordinance Takes Property

The property owners and the County of Maui have filed their opposition and reply briefs regarding the cross motions for summary judgment in the Maui affordable housing case now being litigated in the U.S. District Court, Kamaole Pointe Development LP v. County of Maui, No. 07-00447 DAE (D. Haw.).

The case is a challenge to the County of Maui’s “workforce housing”ordinance, enacted in in 2006, which imposes a40% to 50% affordable requirement on new housing developments of fiveor more units, and on an application to subdivide a lot into five ormore parcels. In lieu of providing actual units, a developer may eitherpay a fee equivalent to 30% of the total project sales, donate improvedland of the same value, or donate raw land valued at 200% of thein-lieu fee. Ordinance 3418 is posted here.

The complaint asserts claims for “unconstitutional conditions,”regulatory takings, substantive and procedural due process, equal protection…

Continue Reading Final Briefs On Due Process Motions In Maui Affordable Housing Exaction Case