Regulatory takings

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Today, we filed an amicus brief in Leone v. County of Maui, No. 29696, an appeal in the Hawaii Intermediate Court of Appeals which is considering, among other issues, the question of when a regulatory takings claim is ripe for review under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The trial court determined the plaintiffs’ regulatory takings claims were not ripe because they should have sought a legislative change to the offending land use regulations which allegedly deprive their property of all economically beneficial uses. The trial court’s decision is available here.

Our brief argues Williamson County only requires a “final decision” by the government applying existing land use regulations to the property, and a property owner is under no obligation to change the law before asserting her federal takings claim:

A claim that a land use regulation takes…

Continue Reading New Brief: Must A Property Owner Seek A Change In The Law In Order To Ripen A Takings Claim?

On Wednesday, September 16, 2009, I’ll be on the faculty of “Practical Guide to Zoning and Land Use Law,” a day-long seminar in Honolulu. This is an annual program dealing with zoning approvals,constitutional limitations on land use regulations, and administrativeprocedure.

I will be leading sessions on “Current Case Law and Legislative Update,” and “Appealing an AdministrativeZoning Decision.”

Also on the faculty are A. Bernard Bays and Naomi Kuwaye, who will be covering “Constitutional Limitations on Zoning Actions,” “Challenging a Rezoning Decision,” “Special Zoning Issues,” and “Adoption and Amendment of Zoning Ordinances and Maps. ”

I hope you can make it. If you do, stop by and say hello.

Moreinformation including a detailed agenda and registration information here. Continue Reading Upcoming Seminar: Practical Guide to Zoning and Land Use Law (9/16/2009)

We can’t figure out this Kafkaesque decision from the Appellate Division of the New Jersey Superior Court. We really can’t.

In Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the court held that the government can assert inverse condemnation in order to take property without compensation. 

If you had to read that twice to comprehend it, you’re not alone. 

The Klumpps are long-time owners of a parcel in the Borough of Avalon, New Jersey; they built a summer house in 1960 which was destroyed two years later in a storm. Since that time, the Borough constructed a protective sand dune system on the Klumpp’s and other properties, and enacted regulations allowing officials to enter the property and “do such acts as may be required, including removing, destroying orotherwise disposing of any property located thereon without firstpaying any compensation therefor.” The dunes and the accompanying regulations prevented the Klumpps…

Continue Reading Can Government Use Inverse Condemnation To Take Property Without Compensation?

On September 4, we filed an amicus brief on behalf of Owners’ Counsel of America in 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.,998 So.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 is considering whether the Florida court’s reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court’s decision violated due process.

Our brief focuses on three issues:

This case concerns whether the ‘background principles” exception to per se takings in Lucas v. South Carolina Coastal Council…

Continue Reading Our Amicus Brief In The Florida Beachfront Takings Case aka The Judicial Takings Case

What we’re reading today:

  • “Setting boundaries for property rights” — an opinion piece in the National Law Journal by our friend Timothy Sandefur about the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Highlight: “There must be some limit on the power of state courts to redefineproperty rights. The Supreme Court long ago limited their power tochange other laws in ways that infringe on constitutional freedoms.Southern judges often used cunning interpretations of state law tosilence civil rights protesters, only to be reversed by the high court.In one case, after a group of activists was convicted of trespass afterholding a sit-in, the justices overruled the conviction on the groundthat the South Carolina Supreme Court had ‘unforeseeably andretroactively expanded [the statute] by judicial construction,’ inviolation of due process.”

…
Continue Reading Sunday Round-Up

In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing andhandbilling by union members violated the state constitution’s freespeech clause, and therefore impermissibly interfered with protectedunion activity. We summarized the Ninth Circuit’s decision here.

The shopping center owner has filed a cert petition asking the Court to review these Questions Presented:

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), this Court held that states may require private shopping malls to grant third parties access to the malls’ common areas for purposes of engaging in certain expressive activity. The third-party activity at issue in PruneYard – solicitation of signatures on a political petition – was in support of a cause that the mall did not oppose and that did not conflict with the mall’s commercial interests. The present case raises the following questions, unanswered by PruneYard:

1. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s property rights under the Fifth Amendment where the activity – here, urging patrons to boycott the mall and its stores – conflicts with the mall’s commercial interests?

2. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s First Amendment free speech rights where the expressive activity is in support of a cause opposed by the mall?

The case is now titled Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009). The case’s docket entry is here.

Continue Reading New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

In a case that’s highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine’s requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.

The not-for-profit hospital sought a declaration that Maine’s “free care laws” effected a taking because “Maine’s free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute.” Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient.

Continue Reading First Circuit: Requiring Hospital To Provide “Free” Medical Services Not A Taking

The New York Times‘ Greenwire blog posts Property Rights Groups Assemble Support in Regulatory Takings Case, about amici support in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

Property rights groups are lining up in support of private waterfront landowners in Florida at the center of a case that the Supreme Court will hear later this year.

Twelve groups, including the National Association of Home Builders and the Cato Institute, have filed friend-of-the-court briefs in Stop the Beach Renourishment v. Florida, which turns on whether Florida’s Supreme Court violated the Constitution’s regulatory takings clause when it upheld a plan to create a state-owned public beach between private waterfront land and the Gulf of Mexico.

. . .

Stop the Beach Renourishment will be the first taking case to come before Chief Justice John Roberts and Associate Justices…

Continue Reading NY Times On Property Owner Amici In Beachfront Takings Case

Confirming that Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009) is shaping up to be one of the most interesting cases in the Supreme Court’s term, even more amici briefs are coming in supporting the petitioner/property owners.

In an earlier post, we noted that eight briefs have been filed, and now are posting four more:

Continue Reading Even More Amici Supporting The Property Owners In Beach Takings Case

More briefs have been filed in support of the Petitioner/property owner in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

We posted the brief of the Cato Institute, Pacific Legal Foundation and NFIB here.

The petitioner’s merits brief is posted here.  More information on the case on our resource page.Continue Reading Amici Briefs Supporting The Property Owners In Beach Takings Case