Land Use Prof Blog

Furman Center report on Housing & Superstorm Sandy

The NYU Furman Center has issued a timely report called Sandy's Effects on Housing in New York City.  From the announcement by Vicki Been and Ingrid Gould Ellen:

We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.

 

The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.

 

The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.

 

The press release (PDF) and report (PDF) are now available online.

 

Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning

 

Matt Festa

Who Owns Land Created by a Volcanic Eruption?

During my just-completed trip to Hawaii, I spent some time in the wonderful Hawaii Volcanoes National Park.  The volcanic eruptions in the park continue to add new land to Hawaii’s youngest and largest island.  In fact, over 500 acres of new land have been added since 1983 alone.

This led me to wonder who owned this new land.  It turns out that the US Geological Survey’s Hawaiian Volcano Observatory provided a helpful answer to this question a while back.  The Hawaii Supreme Court, in the 1977 case State by Kobayashi v. Zimring, 566 P.2d 725, decided the issue.  Granted this is not an issue of broad relevance, but I found their resolution of the question interesting.

In Zimring, the State of Hawaii sought to quiet title over 7.9 acres of new land added after a 1955 eruption extended the shoreline.  This new land, which was termed a “lava extension,” was adjacent to land purchased by the Zimrings in 1960, after the eruption.  The lava flowed over the purchased land and into the ocean, forming the new 7.9 acres of land.  After purchasing the adjacent land the Zimrings entered onto the new land, bulldozing it and planting trees.  The State even assessed the land and collected taxes from the Zimrings on it.  Nonetheless, the court found in favor of the State of Hawaii and in doing so distinguished lava flows from the common law doctrine regarding accretion of land.

The court first reviewed the history of Hawaiian law regarding private property ownership, concluding that it made clear that “land in its original state is public land and if not awarded or granted, such land remains in the public domain.”  It then considered whether there was a relevant doctrine from the common law or traditional Hawaiian usage that applied in the case.  It concluded that there were too few similar lava flows over private land to have established a usage. 

It then considered the common law, first declaring that “[n]o court sitting at common law has had occasion to deal with the question of lava extensions.”  The court distinguished the common law regarding accretion, the gradual increase of land through the deposit of soil.  Under the common law, owners of contiguous land take title to land formed by accretion.  In contrast, the court declared, “in cases where there have been rapid, easily perceived and sometimes violent shifts of land (avulsion) incident to floods, storms or channel breakthroughs, preexisting legal boundaries are retained notwithstanding the fact that former riparian owners may have lost their access to the water.”  Similarly, it noted that under California law if an accretion is caused by artificial means, the newly created land does not belong to the upland property owner.  The court concluded that “[r]ather than allowing only a few of the many lava victims the windfall of lava extensions, this court believes that equity and sound public policy demand that such land inure to the benefit of all the people of Hawaii, in whose behalf the government acts as trustee.”

It can be expected that the Loihi Seamount, which is being formed by volcanoes southeast of the Big Island, will similarly fall under control of the state when and if it emerges some thousands of years into the future.

John Infranca

Field Report: The Ahupua'a of Hawaii

I am writing this blog post from lovely Kona on the island of Hawaii, where I am in town for the next week for the wedding of two good friends.  And, as luck would have it, I happened upon an interesting land use topic on my first full day here.  The National Historic Park Pu`uhonua O Hōnaunau, also known as Place of Refuge, was a designate piece of land where law breaking civilians, or warrior during times of war, could come and seek protection from the penalty of death. 

The park, which also include royal grounds adjoining the Place of Refuge, crosses over three Ahupua‘a, traditional Hawaiian land divisions that run in narrow pie-shaped tracts from the ocean to the mountains.  A number of these separate tracts would be under the control of an individual chief, and each Ahupua’a was ruled by a designated subordinate.  The boundaries of the Ahupua’a were shaped by streams or other natural features.  Each Ahupua’a was designed to be a self-contained area, which provided access to the sea for fishing and salt, to arable land for crops, and to the forests and mountains for resources.  The sizes of Ahupua’a would vary to ensure provision of adequate resources, resulting in wider tracts in less plentiful areas.

The Ahupua’a were largely split through land redistribution in the nineteenth century, but some remained intact under private ownership for some time.  In addition to being a system of land division, the Ahupua’a provided for cooperative use of the land and an emphasis on carefully protecting resources needed for survival.  Some contemporary groups are seeking to retrieve elements of the Ahupua’a system in the interests of sustainability and localism.

According to a Park Ranger I spoke with, it is believed that the Ahupua’a system was derived from Polynesian methods of land and social division.  I have heard of similar methods of dividing land into narrow tracts providing access to a range of resources in places including parts of Guyana and West Africa.

John Infranca 

Power on Stop the Beach: Property Rights, the 'Gang of Four' & the Fifth Vote

Garrett Power (Maryland) has posted Property Rights, the 'Gang of Four' & the Fifth Vote: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (U.S. Supreme Court 2010), 25 Widener Law Journal (2012).  The abstract:

In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had the power to collaterally attack and reverse state court decisions which evaded the requirements of the Taking Clause with pretextual background principles of the State's law of property. Second he opined that each of the “essential sticks in the bundle of rights that are commonly characterized as property” was a separate distinct property right, and that any deprivation of an “established property right” was a compensable Taking under the Fifth and Fourteenth Amendments. If the “Gang of Four” can find a fifth vote, the law of regulatory takings will be radically revised.

Matt Festa

New report on west coast sea-level rise

The National Research Council has just released a major report on sea-level rise along the California, Oregon, and Washington coasts. From the news release:

The sea level off most of California is expected to rise about one meter over the next century, an amount slightly higher than projected for global sea levels, and will likely increase damage to the state's coast from storm surges and high waves, says a new report from the National Research Council.  Sea levels off Washington, Oregon, and northern California will likely rise less, about 60 centimeters over the same period of time.  However, an earthquake magnitude 8 or larger in this region could cause sea level to rise suddenly by an additional meter or more. 

Global sea level rose during the 20th century, and projections suggest it will rise at a higher rate during the 21st century.  A warming climate causes sea level to rise primarily by warming the oceans -- which causes the water to expand -- and melting land ice, which transfers water to the ocean.  However, sea-level rise is uneven and varies from place to place.  Along the U.S. west coast it depends on the global mean sea-level rise and regional factors, such as ocean and atmospheric circulation patterns, melting of modern and ancient ice sheets, and tectonic plate movements.  

. . .  

The committee that wrote the report projected that global sea level will rise 8 to 23 centimeters by 2030, relative to the 2000 level, 18 to 48 centimeters by 2050, and 50 to 140 centimeters by 2100.  The 2100 estimate is substantially higher than the United Nation's Intergovernmental Panel on Climate Change's projection made in 2007 of 18 to 59 centimeters with a possible additional 17 centimeters if rapid changes in ice flow are included. 

For the California coast south of Cape Mendocino, the committee projected that sea level will rise 4 to 30 centimeters by 2030, 12 to 61 centimeters by 2050, and 42 to 167 centimeters by 2100.  For the Washington, Oregon, and California coast north of Cape Mendocino, sea level is projected to change between falling 4 centimeters to rising 23 centimeters by 2030, falling 3 centimeters to rising 48 centimeters by 2050, and rising between 10 to 143 centimeters by 2100.  The committee noted that as the projection period lengthens, uncertainties, and thus ranges, increase. 

The committee's projections for the California coast south of Cape Mendocino are slightly higher than its global projections because much of the coastline is subsiding.  The lower sea levels projected for northern California, Washington, and Oregon coasts are because the land is rising largely due to plate tectonics.  In this region, the ocean plate is descending below the continental plate at the Cascadia Subduction Zone, pushing up the coast. 

Extreme events could raise sea level much faster than the rates projected by the committee.  For example, an earthquake magnitude 8 or greater north of Cape Mendocino, which occurs in this area every several hundred to 1,000 years with the most recent in 1700, could cause parts of the coast to subside immediately and the relative sea level to rise suddenly by a meter or more. 

"As the average sea level rises, the number and duration of extreme storm surges and high waves are expected to escalate, and this increases the risk of flooding, coastal erosion, and wetland loss," said Robert Dalrymple, committee chair and Willard and Lillian Hackerman Professor of Civil Engineering at Johns Hopkins University. 

Most of the damage along the west coast is caused by storms, particularly the confluence of large waves, storm surges, and high tides during El Niño events.  Significant development along the coast -- such as airports, naval air stations, freeways, sports stadiums, and housing developments -- has been built only a few feet above the highest tides.  For example, the San Francisco International Airport could flood with as little as 40 centimeters of sea-level rise, a value that could be reached in several decades.  The committee also ran a simulation that suggested sea-level rise could cause the incidence of extreme water heights in the San Francisco Bay area to increase from about 9 hours per decade, to hundreds of hours per decade by 2050, and to several thousand hours per decade by 2100. 

You can view a video produced by the Council below.

 Stephen R. Miller

Nolon on Regulatory Takings, Property Rights, and Sea Level Rise

John R. Nolon (Pace) has posted Regulatory Takings and Property Rights Confront Sea Level Rise: How Do They Roll.  The abstract:

Under the Beach and Shore Preservation Act, the State of Florida is authorized to conduct extraordinarily expensive beach renourishment projects to restore damaged coastal properties. The statute advances the State’s interest in repairing the damage to the coastal ecosystem and economy caused by hurricanes, high winds, and storm surges. The effect of a renourishment project conducted under the statute is to fix the legal boundary of the littoral property owner at an Erosion Control Line. Plaintiffs in Walton County v. Stop the Beach Renourishment, Inc. claimed that the statute took their common law property rights to their boundary, which would, but for the Act, move gradually landward or seaward, maintaining contact with the water. The Florida Supreme Court disagreed and the U.S. Supreme Court granted certiorari in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection to determine whether the state court reinterpreted Florida’s common law as a pretext for upholding the statute against the plaintiffs’ taking claim and, if so, whether that reinterpretation constituted a “judicial taking.” The Court ultimately decided that the Florida court’s interpretation was correct and that there was no regulatory taking. A majority of the Court could not agree as to whether a state court’s interpretation of state common law could constitute a “judicial taking.”

This article discusses greenhouse gas emissions, global warming, sea level rise, and the ferocity of coastal storms associated with climate change. It explores the tension between these movements in nature and the policy of the State of Florida to fix property boundaries, which under common law would move landward as sea level rises. The property rights and title to land of littoral landowners are described and the effect of the Beach and Shore Preservation Act on them discussed. The article contrasts the Florida coastal policy regarding beach and shore protection with the policies and programs of federal, state, and local governments that use other approaches such as accommodating rolling easements, prohibiting shoreline armoring, requiring removal of buildings, purchasing development rights or the land itself, and imposing moratoria on rebuilding after storm events. These may be less expensive and more realistic approaches to long-term coastal erosion and avulsive events and the inevitability of sea level rise as the climate warms and worsens. The article concludes with a recommendation that the framework for federal, state, and local cooperation in coastal management be revisited and strengthened so that the critical resources and knowledge are brought to bear on this critical issue. It suggests that strengthening those ties, rather than radically restructuring the relationship between state and federal courts, is a more productive method of meeting the needs of a changing society.

This is the latest in a series of articles by Prof. Nolon addressing how local land use law can be used to manage climate change, including  The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change; Land Use for Energy Conservation: A Local Strategy for Climate Change Mitigation; and Managing Climate Change through Biological Sequestration: Open Space Law Redux.  The article also discusses Stop the Beach and our favorite Texas Open Beaches Act "rolling easement" case Severance v. Patterson, and offers some solutions toward an integrated federal-state-local framework for coastal management.

Matt Festa

Eagle on Judicial Takings and State Takings

Steven J. Eagle (George Mason) has posted Judicial Takings and State Takings, forthcoming in the Widener Law Journal.  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a Supreme Court plurality asserted that takings liability could arise from judicial acts, as well as from state or local legislation and executive agency decisions. The Plurality’s rationale supporting “judicial takings” was that the Just Compensation Clause of the Fifth Amendment applies to State acts, not to particular State actors.

This article starts by reviewing the doctrinal bases for the Stop the Beach plurality opinion. It provides prudential reasons why rulings affecting property rights might be legitimate under state law, but nevertheless constitute compensable takings under the federal constitution. It then analyzes the implications of the “state acts and not state actors” doctrine to existing regulatory takings law. Viewed through the lens of “state acts,” the rationales of the Supreme Court’s Williamson County “state litigation” prong and its Dolan “legislative vs. adjudicative” bifurcation are undermined. Similarly, takings distinctions pertaining to whether small-scale rezonings are “legislative” or “quasi-judicial” acts are drawn into question.

Matt Festa

ABA "Professors' Corner" Teleconference on Property Cases

On Wednesday I'll be part of the ABA's "Professor's Corner" teleconference, to discuss Severance v. Patterson, the Texas Open Beaches Act case. The teleconference is Wednesday, May 9 at 12:30 eastern/11:30 central. All are welcome to participate at the number below. The blurb:

The ABA Real Property, Trust and Estate Law Section’s Legal Education and Uniform Laws Group has a regular (and free!) monthly teleconference, “Professor’s Corner,” in which a panel of three law professors highlight and discuss recent real property cases of note.

Members of the AALS Real Estate Transactions section are encouraged to participate in this monthly call (which is always on the second Wednesday of the month).

The May 2012 call is this Wednesday, May 9, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific). The call-in number is 866-646-6488. When prompted for the passcode, enter the passcode number 557 741 9753.

The panelists for May 9, 2012 are:

Professor Tanya Marsh, Assistant Professor of Law, Wake Forest University School of Law. Professor Marsh will discuss Roundy’s Inc. v. National Labor Relations Board, 674 F.3d 638 (7th Cir. 2012). Decided in March 2012, this case held that Roundy’s (a non-union supermarket chain) did not have the right to exclude third parties (in this case, non-employee union organizers) from common areas of shopping centers in which it operated.

Professor Matt Festa, Associate Professor of Law, South Texas College of Law. Professor Festa will discuss Severance v. Patterson, 2012 WL 1059341 (Tex. 2012). In this case, decided March 30, 2012, the Texas Supreme Court struck down the “rolling easement” theory of public beachfront property access under the Texas Open Beaches Act.

Professor Wilson Freyermuth, John D. Lawson Professor and Curators’ Teaching Professor, University of Missouri. Professor Freyermuth will discuss Summerhill Village Homeowners Ass’n v. Roughley, 270 P.3d 639 (Wash. Ct. App. 2012), in which the court refused to permit the mortgage lender to exercise statutory redemption after its lien was extinguished by virtue of a foreclosure sale by an owners’ association to enforce its lien for unpaid assessments. He will also discuss First Bank v. Fischer & Frichtel, 2012 WL 1339437 (Mo. April 12, 2012), in which the Missouri court rejected the “fair value” approach to calculating deficiency judgments under the Restatement of Mortgages.

It should be an interesting conversation with a good variety issues to discuss. Please feel welcome to participate, whether or not you are a currently a section member.

UPDATE: Thanks to everyone who participated, and to Wilson Freyermuth for moderating and Tanya Marsh for inviting me.  The ABA RPTE Section will be doing this every month, so stay tuned for more interesting discussions to come!

Matt Festa

Mulvaney's Hectic Week in Takings

In the past week there have been two major state court takings decisions--both involving beachfront property--and a U.S. Supreme Court cert grant in a takings case from the Federal Circuit.  Our erstwhile guest blogger Prof. Tim Mulvaney has a terrific analysis over on the Environmental Prof Blog: A Hectic Week on the Takings Front.  From the post:

For Takings Clause enthusiasts, the past week has proven a busy one.  Two state court decisions out of Texas and New Jersey, coupled with a grant of certiorari at the U.S. Supreme Court, threaten to constrain governmental decision-making at the complex intersection of land and water.

Tim's post discusses the Texas Supreme Court's final decision in Severance v. Patterson; the New Jersey case of Harvey Cedars v. Karan; and the SCOTUS cert grant in Arkansas Game & Fish Comm'n v. U.S.  Exciting times in the takings world.  Read Tim's whole post for a good analysis. 

Matt Festa

Salkin on Callies on Regulation in Hawai'i

Patricia Salkin (Albany) has posted a review essay called David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review), published in The Urban Lawyer, Vol. 43, No. 4, p. 1107, 2011. The abstract:

In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.

This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.

Matt Festa

Land sales in Cuba?

Land use news from Cuba: New law will let Cubans buy and sell real estate. (Paul Haven, AP).

HAVANA (AP) -- For the first time in a half-century, Cubans will be allowed to buy and sell real estate openly, bequeath property to relatives without restriction and avoid forfeiting their homes if they abandon the country.

The highly anticipated new rules instantly transform islanders' cramped, dilapidated homes into potential liquid assets in the most significant reform yet adopted by President Raul Castro since he took over the communist country from his brother in 2008.

But plenty of restrictions remain.

. . . including restrictions on sales to emigrants or foreigners, so shelve those plans to acquire your Caribbean resort. But it's a great step in the right direction for Cuba. Thanks to Adam MacLeod for the pointer!

Matt Festa

Hurricane Irene

Looks like as I write this on Saturday, Hurricane Irene has hit North Carolina and is poised to strike the Northeast tonight or tomorrow. It's not particularly strong (as hurricanes go) but it's incredibly wide, so a lot of people will be affected. I'm currently looking at a baseball game that was moved up a day for a doubleheader. Major hurricanes and their aftermaths bring all sorts of land use and other legal issues into focus (see, e.g., Robin Paul Malloy, ed., Law and Recovery from Disaster: Hurricane Katrina (Ashgate 2009).

But right now I'll just offer a few basic observations from experience living on the Gulf Coast. Growing up in New York I had no experience with hurricanes. Since living here I've been through the storm or the aftermath of Tropical Storm Allison and Hurricanes Katrina, Rita, and Ike.

The most important decision is whether to stay or go. On this question you should really trust the authorities. In 2005, Houston was the major evacuation center from New Orleans for Hurricane Katrina. Having volunteered to help with the 100,000+ refugees in person and being well tuned-in to the scenes of the destruction, suffering, and lawlessness in the aftermath, many Houstonians instinctively decided to evacuate several weeks later when Hurricane Rita bore down on the Southeast Texas coast. But the mass evacuation turned out to be miserable--or worse--for most. The entire state's highways were gridlocked, all the gas stations were sucked dry, and the majority of evacuees either spent 24+ hours on the road (in 100 degree heat) or got stranded.

Most local governments now have fairly sophisticated data on where storm surges (which are the most dangerous parts of hurricanes) are going to hit. During Hurricane Ike in 2008, the civil authorities did an outstanding job in communicating exactly which low-lying areas needed to evacuate, while the word of the day to everyone else was to "hunker down." This turned out to be quite effective. You can see that New York City has something similar with it's pre-planned hurricane zones and it's order as of this writing to evacuate Zone A. Ike devastated Galveston but loss of life was kept down and the 4+ million in Houston handled it much better than Rita.

If you rely on public transportation, prepare for it to be shut down. New York has already closed the subway. Don't plan to drive unless you have to. In fact, if you do "hunker down," get your hands on as much stuff as possible, particularly water, ice, batteries. Gas up and get cash now. Get some food that will last a week or more. Tie down or move indoors anything that could become a projectile. There are lots of hurricane-preparedness websites out there (even Louisianan James Carville has chimed in) so I won't repeat everything you'll find there. Prepare to be without electricity, internet, or cell phone service. If you have relatives or friends in the interior, it's a good idea to contact them now and ask them to serve as a "rally point" for communications or even to meet up with family in case power and communications go out for a while after the storm.

Bottom line, take it seriously. Don't assume that the danger is linked to the "cat" number--Allison was downgraded to a Tropical Storm before it hit Houston, and did more damage than any of the other hurricanes (just ask my friends at the University of Houston Law Center). But don't overreact by fleeing if you don't need to or without proper supplies. Go ahead and have that hurricane party, and bond with neighbors in the cleanup, but not until after you've done everything you can to prepare. Remember, it it turns out to be not as bad as you thought, that's a good thing. Prepare for the worst and hope for the best. Hopefully you'll all safely bid Goodnight Irene.

UPDATE: Looks like the storm has moved into New England towards Canada, and it turned out to be not as bad as anticipated. Great news. Some pundits will predictably complain that it was overhyped, but that's doing a disservice to everyone involved, and hopefully will not cause excessive underreaction next time. These are incredibly dangerous and destructive events, and once people start dying it's too late to change your mind and start taking it seriously. Better safe than sorry, and it doesn't hurt to have a dress rehearsal in an area of the country that doesn't have as much experience responding to this particular type of emergency.

 

Matt Festa

Texas Supreme Court abates Severance v. Patterson

I was on the road for about a month with very little internet access (more on that to come).  Fortunately, my land use students keep me up to date on things.  Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness.  I asked him to write it up for our readers, and here's what he has to say:

For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed.  The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward.  Needless to say, this has caused a stir in the courts and among legal scholars.  During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here,  here, and here.

On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront.  Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory.  To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups.  The court granted rehearing in Severance and heard arguments four months ago, in April. 

The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot.  The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit.  Both parties submitted briefs on the issue of mootness.  See State’s brief on mootness; Severance’s brief on mootness.  Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness.  The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided. 

Is This The End?

Find out after the jump!

Unfortunately, the situation looks rather bleak at this point for Severance’s claims; issues of standing are often resolved unfavorably to the petitioning party in litigation of this nature.  Interestingly enough, the Texas Supreme Court’s decision on Friday makes no mention of their opinion on the mootness issue.  As the Texas Supreme Court Blog points out, this was a wise decision as it could have put the Fifth Circuit in a rather precarious position should the Fifth Circuit disagree with the Texas Supreme Court on the mootness issue.  Thus, the decision was correctly left to the federal court. 

How will the Fifth Circuit rule?  In the April of 2009 Fifth Circuit opinion, the issue of Carol Severance’s standing to bring suit was an issue resolved by the court in favor of Severance; however, those issues were of ripeness and an argument that Severance had no distinct injury because the harm had occurred prior to her purchase of the property.  The current standing issues are much more unique and potentially detrimental to the claims in Severance.  In fact, looking at Severance’s arguments in her brief to the Texas Supreme Court on mootness, the plaintiffs have a rather large uphill battle ahead of them:

“[T]he certified questions should not be held moot by this Court because the case has not been declared moot by the Fifth Circuit and the Officials have failed to show there is no concrete conflict between the parties.  Severance continues to suffer actual or threatened harm from the rolling easement policy.”

This is an issue that the Texas Supreme Court ruled on directly by abating the case.  Further, this was perhaps the best argument Severance had to make on the issue.  Severance also made arguments regarding other exceptions to the mootness doctrine such as the “Collateral Consequences” Doctrine from the state’s past refusal to let her rebuild and rent her homes, as well as the argument that Severance’s injuries are “capable of repetition yet evading review.”  She will have to put together a much more compelling reason than that cited in her brief to persuade the Fifth Circuit I suspect.  Perhaps, the State’s brief says it best:

“If this is the best Severance can offer—and surely it is, since she has known about the closing for months—then this case should be swiftly returned to the Fifth Circuit for dismissal as moot.”

It is no secret that financial expenses from this litigation were a cause of Severance’s sale of the properties, as described in the State’s brief; however, a very contentious debate in land use law may have been put to rest last Friday.  This truly was a rare debate in constitutional litigation and land use policy, one which similar facts may not resurface for several years.  If Severance’s claims are moot, the question now becomes: whose claims are not moot?

Thanks again to Sonny Eckhart for providing his timely analysis of this latest development in an important case.

Matt Festa

Mulvaney guest-blog on Severance's latest development: Mootness?

[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March.  Here are his thoughts on the latest development in the case.  Thanks!--Matt Festa]

The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here).  The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit. 

At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance.  Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach.  Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement. 

In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance.  The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland. 

Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case.  The Court ultimately conducted a second round of oral argument in April.  Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).

Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.”  Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”

Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy. 

In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue.  The Court obliged.  The State filed its brief today, and Ms. Severance’s response is due next Tuesday.  Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.

Timothy Mulvaney

CFP: Connecticut Conference on Legal Solutions to Climate Change Adaptation

From Prof. Sara Bronin, here's an announcement about an opportunity to participate in an upcoming conference.  There is more information at the conference website.

Call for Papers:
“Legal Solutions to Coastal Climate Change Adaptation in Connecticut”

Conference Date: February 10, 2012

Conference Location: University of Connecticut School of Law,  
Hartford, CT

Deadline for paper abstract submissions:  September 30, 2011

Key Issues covered by the conference: The conference presentations and  
discussions aim to enhance understanding and promote discussion of  
cutting-edge policy and legal approaches to climate change adaptation  
in coastal areas, with potential application to Connecticut.

Topics of Interest: We invite practitioners, academics, and students  
in the field of law as well as others with expertise and interest to  
submit a 2 to 3 page paper proposal that focuses on existing or  
proposed innovative legal, policy and related incentive-based options  
for climate change adaptation in coastal environments. We invite  
papers that lay out the existing legal and regulatory structure in  
Connecticut as well as in other states, identify gaps and obstacles in  
these approaches, present innovative and environmentally sound  
approaches to climate change adaptation and stimulate legal thinking  
on legal and policy remedies to this issue of international  
importance. All submitted papers must contain a legal, policy or  
regulatory approach, solution or tool designed to facilitate climate  
change adaptation in Connecticut.

Specific Topics: Topics of interest include, but are not limited to:
·         Opportunities for and roadblocks to adaptation in existing  
laws and policies; lessons from other areas:
·         Interplay between the protection of public resources and  
private property rights
·         Using the CZMA and Coastal Management Act for climate change  
adaptation
·         Rolling easements, ambulatory vs. fixed property lines
·         Ecosystem-based adaptation incentives via policy and legal  
approaches
·         Land use planning, growth strategies and regulatory  
approaches to climate change at the municipal and state levels
·         Climate Justice and Adaptation Planning: Who bears the  
burden? Who reaps the benefits?
·         Legal approaches to emergency planning and changing hazards
·         Adaptation Economics: the costs of adapting or not adapting,  
who pays and when?
·         Reactive versus proactive legal approaches to climate change  
adaptation
·         Legal strategies or barriers to financing climate change  
resilience planning/implementation

Publication of Papers: Submitted papers that are accepted for  
presentation will be published in a special issue of the Sea Grant Law  
and Policy Journal. How to Submit: 2 to 3 page paper proposals should be submitted via e-
mail to seagrantresearch@uconn.edu  by September 30th.  Be sure to  
include your affiliation and contact information.

Matt Festa

Byrne on Stopping Stop the Beach

J. Peter Byrne (Georgetown) has posted Stop the Stop the Beach Plurality!, forthcoming in the Ecology Law Quarterly.  The abstract:

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

Matt Festa

The Beach Rolls to Fort Worth: Severance Panel at Texas Wesleyan

It's Severance-palooza today on the Land Use Prof Blog, with Hannah Wiseman's great summary of the oral arguments at the recent rehearing of the Open Beaches Act case in the Texas Supreme Court, and the contribution in my previous post from Timothy Mulvaney.  Scroll down to the next two posts for that background and analysis.

But wait, there's more!  Prof. Mulvaney, who has done a lot of research on takings, including a piece on last year's Stop the Beach Renourishment, has been following Severance v. Patterson for a long time.  Last month he hosted a lively panel discussion on the case at Texas Wesleyan School of Law (ably sponsored by their Federalist Society and Environmental Law Society).  The participants were David Breemer, the attorney for plaintiff Carol Severance; Ellis Pickett, former chair of the Texas Upper Coast Chapter of the Surfrider Foundation; and yours truly.

Prof. Mulvaney spoke first and gave a helpful introduction to the case and the background of the legal issues.  Mr. Breemer, a principal with the Pacific Legal Foundation, gave his client's view of the case and argued vigorously that the state's interpretation of beach-access easement law is an unconstitutional interference with his client's property rights. 

I spoke a little bit about the Texas Supreme Court's initial opinion from November 2010, and also about the issue I focused on in my amicus curiae brief, which was (my view) that an easement must be proven up for each property through common law doctrines of dedication, prescription, or custom before we can even get to the question of whether it rolls. 

Mr. Pickett, whose Surfrider Foundation also filed an amicus brief (with which a former student of mine assisted in drafting), spoke passionately about the environmental costs of restricting the public interest in the beach.  He had lots of compelling pictures and even passed around the room a giant piece of twisted metal to make his point.  This was followed by a great Q&A session with the well-informed crowd.

What made it even more interesting is that when Prof. Mulvaney organized the panel, it was conceived as an after-action discussion of the November opinion.  It wasn't until just a couple of weeks beforehand that we all learned that the court had taken the unusual step of granting the rehearing.  By the way, you can read all of the briefs, including the amici, at the link from this post. 

It was a great event, and the other three participants have offered to give me a surfing lesson. The participants have all agreed to contribute to an upcoming issue of the Texas Wesleyan Law Review.

Here's the video!  [requires Real Player].  This video, plus Part 2, are also available at the Texas Weslayan web article on the event.

   

Matt Festa

Mulvaney on the Severance Rehearing and Location vs. Purpose

Thanks to Hannah Wiseman for the great post summarizing the recent rehearing in Severance v. Patterson.  I meant to get to it last week, but I wouldn't have done half as good a job.  But I also encourage you to do as she suggests and listen to the oral argument yourself.

But she's not the only junior land use prof with Texas ties who has some great thoughts about the rehearing.  Professor Timothy Mulvaney at Texas Wesleyan also watched the oral argument, and composed some observations on the case, particularly the interesting question of the physical location vs. the purpose of these easements.

[T]he Texas Supreme Court conducted a re-hearing in the “rolling” beach access easement case of Severance v. Patterson.  In its original 6-2 decision, the Court distinguished between (1) an easement destroyed by an avulsive event—which the majority originally held in November does not “roll” upland—and (2) an easement destroyed by imperceptible erosion—which the majority originally held does “roll” upland.  But the Court today seemed focused not on the avulsion/erosion divide but rather on this question:

Is the geographic location of an easement physically static, such that the easement holder must re-establish that easement each time a natural event (storm, sinkhole, etc.) makes the geographic location of the original easement impassable?  Or, is it the purpose of that easement that is static, whereby no re-establishment would be necessary? 

The answer may depend on a multitude of factors (e.g., the method of creation, the use of the easement, the character of the property at stake, etc.).  There do seem to be several instances where only the easement’s purpose, not its physical location, should remain static.  At oral argument, the State pointed to the natural alteration of a river’s course, which does not require a re-establishment of the navigable servitude.  Another analogy might be that of oil and gas leases, which convey an easement by implication that is not limited to a fixed location but rather allows use of the surface as reasonably necessary to fulfill the lease’s purpose.  I would be interested to hear other analogies or perspectives off-blog (tmulvaney@law.txwes.edu), or even on-blog if you are so inclined.  Thank you for your time.

Feel free to share your thoughts with Prof. Mulvaney or even better, leave a comment here!

Matt Festa

Kornfeld on Natural Resources Damages and BP Deepwater Horizon

Itzchak E. Kornfeld (Hebrew University of Jerusalem) has posted Of Dead Pelicans, Turtles, and Marshes: Natural Resources Damages in the Wake of the BP Deepwater Horizon Spill, Environmental Affairs, Vol. 38, No. 2.  The abstract:

This Article posits that in its role as the lead agency among the United States’ natural resources trustees, the National Oceanic & Atmospheric Administration’s piecemeal assessment of natural resources damages, i.e., valuing one dead bird at a time or the death of just a tract of marsh, fails to consider the inherent worth or the value of the entire ecosystem. Valuing the destruction of the entire ecosystem as a result of the BP Deepwater Horizon well blowout is the best way to assess the damage in the Gulf Coast, particularly in south Louisiana. That crude oil spill re-sulted in an estimated 53,000 barrels per day, and a total volume of 4.9 million barrels that despoiled the waters of the Gulf of Mexico and the surrounding shorelines. As a consequence of the spill, thousands of birds, turtles, fish, and marshlands were left to die.

Matt Festa

Blumm & Guthrie on Internationalizing the Public Trust Doctrine

Michael C. Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision, forthcoming in University of California Davis Law Review, Vol. 44, (2012).  The abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

A timely article considering the recent upsurge in caselaw and commentary on the public trust doctrine.

Matt Festa