Regulatory takings

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The Cato Institute, the National Federation of Independent Business Legal Center, and the Pacific Legal Foundation have filed this amicus brief supporting the property owners in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The brief argues:

In the opinion below, the Florida Supreme Court departed from long-established state law protecting the property rights of beachfront landowners. Stop the Beach Renourishment, Inc., 998 So. 2d 1102. As Justice Lewis noted in his dissent, the decision summarily altered the definition of littoral property that had governed in Florida: “In this State, the legal essence of littoral or riparian land is contact with the water. Thus, the majority is entirely incorrect when it states that such contact has no protection under Florida law and is merely some ‘ancillary’ concept that is subsumed by the right of access.” Id. at 1122…

Continue Reading Cato Institute And Pacific Legal Foundation Amicus Brief In Beach Takings Case

The property owners have filed their merits brief in the beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). The case presents three questions:

TheFlorida Supreme Court invoked “nonexistent rules of state substantivelaw” to reverse 100 years of uniform holdings that littoral rights areconstitutionally protected. In doing so, did the Florida Court’sdecision cause a “judicial taking” proscribed by the Fifth andFourteenth Amendments to the United States Constitution?

Is theFlorida Supreme Court’s approval of a legislative scheme thateliminates constitutional littoral rights and replaces them withstatutory rights a violation of the due process clauses of the Fifthand Fourteenth Amendments to the United States Constitution?

Isthe Florida Supreme Court’s approval of a legislative scheme thatallows an executive agency to unilaterally modify a private landowner’sproperty boundary without a judicial hearing or the payment of justcompensation a violation of the due process clauses of…

Continue Reading Petitioner’s Merits Brief In SCOTUS Beachfront Takings Case

In Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case won by my Damon Key partners Charlie Bocken and Diane Hastert, the Court held the navigational servitude does not create a “blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation.” The servitude gives the public a right of access to waters that intheir natural condition are actually navigable, and absolves thefederal government from liability for compensation when land subject tothe servitude is taken or damaged, the the theory being that navigablewaters are not part of a riparian or littoral owner’s “bundle ofrights” —  

The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See…

Continue Reading Navigational Servitude May Not Be A “Blanket Exception” To The Takings Clause…But It’s Still A Big One

From The Destin Log, the hometown newspaper from the location of the U.S. Supreme Court case on judicial takings and beachfront land (Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009)), comes the report “Destin may be Sotomayor’s first test: Analysts think new justice would vote against private property owners in beach restoration case.”

A new face on the Supreme Court may help settle an old but simmering issue that has divided Destin for years.

With the city about to become ground zero for beach restorationbattles nationwide, The Log contacted legal experts and lobbyist groupsto ask where Sonia Sotomayor would stand on the case and whether hernomination could swing the decision.

Robert Thomas, a land use and appellate lawyer based in Honolulu,Hawaii, said when the Destin beach restoration case goes before thehigh court sometime this winter, it will…

Continue Reading Report: Beachfront Takings Case May Be Sotomayor’s First Test

These past few days, I’ve been attending the annual meeting of the ABA in Chicago. It was a chance to meet new colleagues, associate faces with those whom I’ve only had e-contact, and reacquaint myself with old friends.

I’m also the new Chair of the Condemnation Law Committee of the State & Local Government Law Section. I’m honored to have been delegated the task of leading a group which includes some of the most experienced and learned condemnation lawyers in the country among its members, from both condemnor and condemnee perspective.

One of the jobs of the Chair is to encourage those who are not section and committee members to join us. In that vein, here are some of the benefits of participating:

  • We’ll be continuing our program of regular teleconferences on new cases and hot developments in eminent domain and regulatory takings law. The last call

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Continue Reading ABA Section Of State & Local Gov’t Law – Condemnation Law Committee

In a notable case worth following, the Hawaii Intermediate Court of Appeals is considering a new appeal involving whether a per se regulatory takings claim is ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), and whether in order to ripen a takings claim, a property owner is obligated to seek a legislative change to the regulations applicable to the property.

In Leone v. County of Maui, No.29696, the trial court refused to consider a property owner’s claim that state law and local regulations resulted in a regulatory taking of beachfront property on the south shore of Maui. The Opening Brief filed by the property owner is available here.

The case involves an undeveloped 1/2 acre beachfront parcel, one of 11 similarly-situated lots. The zoning on the property is “Hotel-Multifamily,” which permits residential use. The Community Plan (Maui County’s…

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

“Would that John Adams could rise from his grave tospeak for the VFW, and for property rights in twenty-firstcentury America. I believe he would observe that, if the VFW’sproperty can be taken without compensation, no property issecure.”

So says the dissenting Justice in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Authority of the City of Milwaukee, No. 2006AP2866 (July 17, 2009), a case in which a sharply divided court (4-3-1) held that under the “unit rule,” the VFW’s property was worthless and the VFW was not entitled to the $300,000 just compensation award.

More detail to follow after a chance to digest the various opinions.

Update: our complete summary of the opinion is posted here.Continue Reading Wisconsin Supreme Court: Property Valueless, So Lessee Not Entitled To Compensation

We’ve been loosely following the Senate Judiciary Committee’s hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say “loosely” since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.

Here’s a sampling, followed by some thoughts:

  • She’s Lying by Paul Campos – “Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.”
  • Written testimony of Lawprof Ilya Somin (Geo. Mason University) – “As President  Barack Obama has written, ‘[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.’ The protection of property rights was one of

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Continue Reading Do Judges “Make” Law? The Sotomayor Nomination And The Beachfront Takings Case

The Senate’s hearings on Circuit Judge Sonia Sotomayor’s nomination as an Associate Justice of the U.S. Supreme Court begin today. Here’s our summary of cases in which she was involved as a circuit and district judge on the issue.

If confirmed, we may find out her thinking about regulatory takings very soon, because in its next Term, the Court will be reviewing Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), a case about the taking of littoral (beachfront) land in Florida. Our summary of the issues in that case is here.

If she is elevated to the Court, this case could prove especially interesting because her one unabashedly pro-property owner decision as a Second Circuit judge focused on procedural due process. In Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005), the court held…

Continue Reading Sotomayor On Takings And Property Rights Issues

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