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On Wednesday, December 2, 2009, the U.S. Supreme Court will hear oral arguments in the biggest takings case of the year, Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This is the case in which the Court is considering the theory of “judicial takings” and whether state courts are bound by the Fifth Amendment when they consider state property law. 

The case has been pitched as a contest between littoral property owners’ rights to have beach-front property (as opposed to beach-view property), and a state judiciary’s ability to adopt and shape a state’s common law.

The merits briefs, the 21 amicus briefs, and the decisions of the Florida state courts are available on our resource page. Disclosure: we filed an amicus brief in the case, supporting the property owners, available here.

The Court is considering…

Continue Reading Oral Arguments In Judicial Takings Case: Are State Courts Bound By The Takings Clause?

The Cato Institute’s Ilya Shapiro discusses Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case being argued in the U.S. Supreme Court on Wednesday.

We will post a preview of the arguments, but in the meantime, check out our resource page here (includes merits and amici briefs, and the decisions of the courts below).Continue Reading Cato Institute Podcast On Stop The Beach Renourishment (Judicial Takings) Case

Things we were reviewing today:

  • My colleague Mark Murakami has set up a resource page for all things about the McDonald v. City of Chicago case. That’s the appeal currently being considered by the Supreme Court challenging Chicago’s ability to regulate firearms under the Second Amendment. What’s most interesting about the case is not the gun issue, but the legal arguments regarding whether the Privileges or Immunities Clause incorporated the entire Bill of Rights against the states. Slaughter-House, anyone?
  • The Texas Supreme Court today heard oral arguments in Severance v. Patterson (a case we discussed here). It is in the Texas court on certified questions from the Fifth Circuit. More here including the briefs, and the archive of the video of the arguments here. The certified questions

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Continue Reading Thursday’s Links

Another very interesting conference call today, focusing on theupcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals’ decision in Aspen Creek, and the New Jersey Supreme Court’s decision to review Klumpp v. Borough of Avalon. Here arethe links to some of the cases and other topics discussed duringtoday’s call, and other items of interest which we didn’t have time for:

  • A resource page for the Stop the Beach Renourishment case – merits and amici briefs, media links, and commentary.
  • Our summary of the New York court’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).
  • More about the “bizarre condemnation,” Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

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Continue Reading Links From ABA Condemnation Committee Conference Call (11/18/2009)

Here’s the Reply Brief filed last month by the property owner in Leone v. County of Maui, No.29696,an appeal in the HawaiiIntermediate Court of Appeals which is considering, among other issues,the question of when a regulatory takings claim is ripe for reviewunder Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). The brief responds to the County’s Answering Brief (posted here).

In Leone, the trial court refused to consider the owner’s claim that statelaw and local regulations resulted in a regulatory taking of beachfrontproperty on the south shore of Maui. Thetrial court determined the plaintiffs’ federal regulatory takings claim — which they brought in state court, as required by Williamson County — werenot ripe because they should have sought a legislative change to theoffending land use regulations which allegedly deprive their propertyof all economically beneficial uses. The trial court’s decision…

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

The judiciary web site has posted the recording of the November 10, 2009 Intermediate Court of Appeals oral arguments in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA) here (caution, it is a massive 88 MB mp3 file).

The issue in the case 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 belongsto the State of Hawaii and is public property. More about thearguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners, available here.Continue Reading Beachfront Taking Case (HAWICA) Oral Argument Recording

The property owners have filed their Reply Brief in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), the case about “judicial takings” and the rights of littoral owners to accretion.

Oral arguments in the Supreme Court are set for December 2, 2009.

More about the case on our resource page.

Disclosure: we filed an amicus brief supporting the Petitioners, available here.Continue Reading Petitioner’s Reply Brief In SCOTUS Beachfront Takings Case

The Hawaii Supreme Court and Intermediate Court of Appeals will be hearing two appeals of note:

  • Tuesday, November 10, 2009, 9:00 a.m. – Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (HAWICA). The issue 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. More about the arguments, including the briefs, here. Disclosure: we filed an amicus brief supporting the property owners.
  • Thursday, December 17, 2009, 9:00 a.m. – Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (HAWSCT). The Supreme Court is reviewing the ICA’s conclusion that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343. The application for writ

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Continue Reading Upcoming Oral Arguments Of Interest

On Thursday, December 17, 2009 at 9:00 a.m., the Hawaii Supreme Court is scheduled to hear oral arguments in Unite Here! Local 5 v. City and County of Honolulu, the case in which the IntermediateCourt of Appeals held that unless the project changes, a supplementalEIS is not required under the Hawaii Environmental Policy Act, Haw.Rev. Stat. ch. 343. The application for writ of certiorari asked the court to review this Question Presented:

Under HRS Chapter 343 an its enabling rules, is a supplemental environmental review required when there are significant changes to a project’s circumstances, such as increased environmental and community impacts, or are supplemental reviews limited solely to changes in project design?

The application for writ of certiorari and opposing and amici briefs in the case thus far are posted here. 

The ICA’s opinion is reported at 120 Haw.457, 209 P.3d 1271 (Haw. Ct. App. 2008), and…

Continue Reading HAWSCT Oral Aguments Scheduled In Turtle Bay/Kuilima EIS Case: Is A Change In “Context,” But Not The Project, Enough To Trigger Supplemental EIS?