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Calling the case “tempestuous,” the New Jersey Law Journal (via law.com) summarizes this week’s New Jersey Supreme Court oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009). See Michael Booth, Town’s Taking of Beachfront Property Without Compensation Tested at Court (Mar. 24, 2010).

In Klummp v. Borough of Avalon, A-49-09, a trial judge found and an appeals court agreed that an inverse condemnation of beach property resulted from Avalon’s passing of shore-protection regulations after a 1962 Nor’easter leveled the house once standing there.

The borough built sand dunes and vacated access roads to the property, but Edward and Nancy Klummp kept paying taxes — albeit for miniscule amounts. No condemnation case was filed nor was notice given of a taking.

Not until 1997, when they sought permits to rebuild, did Avalon assert the Klummps were no longer the owners, which led them to…

Continue Reading NJ Law Journal’s Summary Of The Klumpp Oral Arguments (The “Bizarre Condemnation”)

Courtesy of the New York Times is the backstory of Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This, of course, is the “judicial takings” case that was argued in the Supreme Court last December, and is now awaiting disposition (our summary page contains links to the briefs — including the amicus brief we filed — and other case materials).

And when the Times goes back, it really goes back:

The sands found Destin first. They started off eons ago, from the Appalachian Mountains, washing their way down the rivers that flow into the Gulf of Mexico. Winnowed to pure, hardy quartz, the sediment moved with the gulf’s currents and gathered into the necklace of narrow barrier islands that buffer Florida’s Panhandle. Time and tides refined the sand into a soft, sun-bleached powder. By the 1830s, when a Yankee…

Continue Reading Behind The Music: Stop The Beach Renourishment And Judicial Takings

Technology permitting, we are live blogging today’s oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009).

That’s the case in which the New Jersey Supreme Court is reviewing the decision from the AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.” More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.

The court’s web site states the issue simply:

May a municipality occupy a property and obtain title through inverse condemnation without initiating condemnation proceedings under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50?

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. Although we are…

Continue Reading Live Blog Of New Jersey Supreme Court Oral Argument In Klumpp v. Borough of Avalon (The “Bizarre Condemnation”)

The New Jersey Supreme Court has scheduled oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009), to review the decision from New Jersey’s AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.”

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. We won’t be there, but through the miracle of technology, we look forward to following along via the court’s live webcast site (why don’t all appellate courts do this?). We may even live blog it, as we have done with other appellate oral arguments.

More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.Continue Reading Oral Arguments Scheduled In New Jersey’s “Bizarre Condemnation”

Barista’s note: we posted a version of this story before, on the 30th anniversary of the date the Court issued the opinion (December 4, 2009), but thought we would reprint a more detailed view, recently published in our firm’s newsletter, complete with photos.

Damon Key Celebrates Thirtieth Anniversary of Landmark U.S. Supreme Court Victory

What do you call a court opinion that has been cited by 627 othercourts, expressly followed in 42 cases, distinguished in 24 others, andhas been cited 1,041 times in law reviews and 147 times in legaltreatises?

We call it a landmark.

In 1979, the U.S. Supreme Courtissued its decision in Kaiser Aetna v. United States, a truly landmarkcase, argued and won by Damon Key attorneys Charlie Bocken and DianeHastert.

DDH_RCB_hawaii_kai Onbehalf of the developer of Hawaii Kai, Charlie and Diane took on thefederal government and overturned over a century of seemingly adverseprecedent. Kaiser Aetna was the…

Continue Reading More On The Thirtieth Anniversary Of Kaiser Aetna

Remember Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the decision from New Jersey’s Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation? 

As noted in this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners’ petition (available here). We called the decision “kafkaesque,” since we couldn’t quite figure how the appellate court reached the conclusion which it did. The New Jersey Law Journal called the decision “a bizarre condemnation.”

Why the perjorative labels?

The appellate division held that the government can assert inverse condemnation. Yes, you read that right: inverse condemnation is a cause of action which the government may assert to allow it to take property without compensation.

Confused? You are not alone. Here’s our recipe for straightening yourself out:

Start here, our summary of…

Continue Reading Latest Briefs In New Jersey’s “Bizarre Condemnation”

The Federalist Societyhas posted a podcast of my Pacific Legal Foundation colleague Jim Burling discussing Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

If that doesn’t work for you, go here to download the mp3.

The Stop the Beach Renourishment case, which has been argued and is currently awaiting dispositionby the Supreme Court, asks whether a state court is constrained by theTakings and Due Process clauses from rewriting the common law rules ofproperty. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

Our summary of the oral arguments as well as links to the briefs are available on our resource page. A recent article summarizing the key amici arguments is posted here.

Also, a distant heads-up: the State and Local Government Law and the Real Property Sections will be presenting a major CLE…

Continue Reading Post-Argument Podcast On Florida Judicial Takings Case

Statelocalcover_1_2010_small The most recent edition of State & Local Law News has an article summarizing the arguments in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). 

That case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

In Drawing a Line in the Sand: Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Protection, six authors of amici briefs in the case — including me — summarized their arguments. I focused on the “background principles” issue, and the notion that certain common law aspects of property are beyond the reach of state court redefinition:

The “judicial takings” question in…

Continue Reading New Article On Florida Beach Judicial Takings Case

Both parties have asked the Hawaii Intermediate Court of Appeals to take another look at its opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009).

In that case, the court held (1) the Hawaii Legislature took existing littoral accretion when it assigned ownership of the accretion from beachfront owners to the State; and (2) the Legislature did not take “future accretion.” We summarized the opinion here. [Disclosure: we filed an amicus briefsupporting the property owners, available here.]

The State of Hawaii asserts the opinion should not have addressed the claim that land which had accreted prior to 1985 was taken. The State’s Motion for Clarification is here.

The property owners assert the ICA’s conclusion that “future accretion” is not a property interest should be reexamined. The ICA relied on three federal cases from the Ninth Circuit, Western Pac. Ry. …

Continue Reading Motions For Reconsideration In ICA Accretion Taking Appeal

Noparking Many years ago I got a parking ticket, my first. Here’s the story: when I left the car, it was a legal space, no meter. In the few hours I was away, the city public works department erected a “no parking” sign and painted the curb red. The police were equally efficient, and by the time I returned, I had a ticket for parking in a red zone.

I objected and the judge recognized injustice when he saw it.

Years later, the court was not so magnanimous. We represented a property owner held liable for “creating” an obstruction to navigation in San Francisco Bay in violation of the Rivers and Harbors Act of 1899. How did the owner “create” the obstruction, you ask? It refused to destroy those portions of its piers which extended beyond the harbor line.

Why would the owner put a pier beyond the harbor line? It…

Continue Reading New Cert Petition: Is Littoral Owner Trespassing When The Shoreline Erodes, Placing Lawful Structure In The Water?