Regulatory takings

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A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics discussed during today’s call, and other items of interest which we didn’t have time for:

  • Judge Sonya Sotomayor’s decisions about eminent domain and regulatory takings
  • Resource page for 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).
  • Scalia and O’Connor’s dissent

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Continue Reading Links From ABA Condemnation Committee Conference Call

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

It looks like the federal government will likely seek U.S. Supreme Court review of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). As noted here, the SG’s office has sought and received two extensions of time and the cert petition is now due by July 17, 2009.

In Casitas, the Federal Circuit held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout. The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback. The character of the government action was a physical diversionfor public use — the protection of an endangered species.” The Federal Circuit’s opinion is posted here, and the court’s denial…

Continue Reading Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)

Head’s up to all members of the ABA’s Section of State and Local Government Law‘s Condemnation Law Committee: you should have received an email about next week’s conference call (Thursday, June 25, 2 p.m. EDT) to discuss recent developments and items of interest, including:

If you are a section member and did not get the notification email with call-in information, send me an email and I will forward it to you.Continue Reading ABA Condemnation Law Committee Conference Call On Beach Takings Case And Sotomayor Nomination

The US Court of Appeals has reversed the Court of Federal Claims’ dismissal of a takings case, holding the right to develop land is property protected by the Takings Clause. In Schooner Harbor Ventures, Inc. v. United States, No. 2008-5084 (June 16, 2009), the property owner claimed a designation of its property (Site 28) by the U.S. Fish and Wildlife Service as a critical habitat for the Mississippi Sandhill Crane — which required it to purchase another parcel as a mitigation measure before it could sell Site 28 to the Navy — was a taking.

The property owner sought just compensation in an inverse condemnation action in the CFC, which entered summary judgment for the government because the owner failed to assert a property right. The CFC characterized the interest claimed as “the right to sell its property to the government, withoutconditions imposed, in this instance to meet regulatory…

Continue Reading Federal Circuit: Plaintiff Alleged Property Right To Develop Land

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?

Earlier this week, the Supreme Court declined review of the Ninth Circuit’s decision in McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008). In that case, the Ninth Circuit held:

This casepresents an issue of first impression in this Circuit — whether alegislative, generally applicable development condition that does notrequire the owner to relinquish rights in the real property, as opposedto an adjudicative land-use exaction, should be reviewed pursuant tothe ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). We affirm, holding that the Penn Central analysis applies to the 12-inch pipe requirement. 

The Ninth Circuit’s opinion is available here. The Cato Institute which along with others filed an…

Continue Reading Cert Denied In Ninth Circuit Legislative Exactions Case