Land Use Prof Blog

Supreme Court Decides Stop the Beach Renourishment

The big property rights case of the Term has been decided.  In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court rejected the judicial takings claim unanimously.  The opinion is here: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf.  Justice Scalia wrote the majority opinion, but it is not the opinion of the court on all parts.  Justices Kennedy and Breyer wrote separately.  We've posted about the case previously here, here, here, and here.  For a great analysis of what was at stake in the case, re-read Ben Barros' excellent post from last year. 

Also, tons of links (briefs, case history, oral argument, news articles) at the SCOTUS Wiki page for the case.

A quick look seems to indicate that the Justices split (4-4, with J. Stevens taking no part) over the issue of whether there can be such a thing as a judicial taking under the right circumstances.  Now, to go read the opinions . . . .

Matt Festa

Kilbert on the Public Trust Doctrine and the Great Lakes Shores

Kenneth Kilbert (Toledo) has posted The Public Trust Doctrine and the Great Lakes Shores, Cleveland State Law Review, Vol. 58, No. 1 (2010).  The abstract:

The shores of the Great Lakes are a battleground, and their future use is shrouded in uncertainty and controversy. Lakefront owners, armed with their deeds, assert an exclusive right to use their properties at least down to the water's edge. Members of the public, brandishing the venerable but amorphous public trust doctrine, claim a right to walk on even privately owned shores up to the high water mark. Courts to date have diverged widely, in approach and result, when deciding whether, and to what extent, the public has a right to use the Great Lakes shores.

This article proposes a uniform framework, grounded in the core principles of the public trust doctrine, for use in each Great Lakes state to ascertain the public right's to use the Great Lakes shores. This framework offers much-needed predictability, yet is flexible enough to allow each state to strike its own balance between public and private interests. The framework employs a principled, two-prong approach. First, it determines the geographic scope of the public trust doctrine applicable to the Great Lakes shores. Reconciling Supreme Court precedents, the framework provides that the geographic scope of the public trust in each state begins at a common starting point informed by the equal footing doctrine, and a state's ability to alter the scope is circumscribed. Second, the framework determines what public uses of the Great Lakes shores are protected by the public trust doctrine. Important, non-traditional public uses that do not unreasonably interfere with the rights of lakefront owners can be protected as well as the traditional uses of navigation, fishing, and commerce. Using as a focal point the controversy regarding the public's right to walk the Great Lakes shores, this article shows how the proposed framework is consistent with existing law in each of the Great Lakes states.

Matt Festa

Victor Flatt Contrasts Deepwater Horizon and Cape Wind

Victor Flatt recently wrote an editorial for the Houston Chronicle entitled "Did a single week reverse energy fortunes forever?" in which he contrasts the fallout from the Deepwater Horizon explosion and the approval of Cape Wind.

The confluence of both these events also illustrates a move in the direction of the public good over the private good. Despite claims to the contrary, it is rarely the general public that is clamoring for more offshore oil drilling. While many people might like to have lower gasoline prices and reduced dependence on foreign oil, when the public actually sees the trade-offs in price, few make offshore drilling a priority. The political push for offshore drilling comes from the companies themselves, which realize profit through the recovery and processing of this product. Cape Wind also hopes to realize a profit, but it also has significant support from a public that wants to see viable greenhouse-gas-free energy become the norm. The public's clamor was enough to overcome even the most politically well-connected private opposition to Cape Wind, and this signals the breaking of a logjam. More and more approvals will be forthcoming, and this will transform the energy landscape.

Jamie Baker Roskie

"One Stop" Web Site for Gulf Oil Spill

From Robin Craig at Florida State:

A fairly impressive collection of departments and centers among the Florida
universities are putting together what should become a very helpful one-stop web
site for information on the Gulf spill, hosted (so far, at least) on Florida
State's web site.   Soon there will be links to specific information on
ecological impacts, economic costs, the scope and path of the spill, underwater
and surface photos, data sets, and a legal page (I authored the draft of that
today), all with links to further information.

 The site was officially launched this afternoon and will be growing
quickly.  If you're interested in following events, I'd recommend bookmarking
the page and checking back frequently as the site develops.

See the Oil Spill Academic Task Force website here.

Jamie Baker Roskie

Hudson on Public and Wildlife Trust Doctrines & the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, Columbia Journal of Environmental Law, Vol. 34, No. 1, 2009.  The abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Matt Festa

Stop the Beach Forum at Florida State

From Robin Kundis Craig at Florida State:

I know that many of you are interested in the Stop the Beach Renourishment case currently pending before the U.S. Supreme Court (the "judicial takings" case).  On April 7, 2010, the Florida State University College of Law hosted our Spring Environmental Forum on this case, and the speakers included lawyers who had argued the case before the Court.

The video of the event is available on our website. I hope that many of you will find this Forum helpful for yourselves and for your classes!

Jamie Baker Roskie

Easements & Beach Renourishment on the Jersey Shore

You wouldn't know it from watching TV over the last year, but the Jersey Shore isn't just about Snookie and "The Situation" and their boozy boardwalk-and-nightclub lifestyle as displayed on the appalling MTV reality show.  Long Beach Island is an 18-mile barrier island that's mostly low-density residental development.  (I even lived on LBI for a short time growing up, and I turned out mostly OK).  The focus there is on the beach, and like many places at the water's edge, there is a land use controversy over property rights and the eroding coastline:

LONG BEACH TOWNSHIP, N.J. - The line in the sand is drawn in this New Jersey shore community, where township officials say they'll use "peer pressure" to pit neighbor against neighbor in an effort to persuade 230 oceanfront property owners to let a beach restoration project proceed.

The holdouts are refusing to sign on because they don't want their views of the ocean blocked, and because they fear the government might build a boardwalk or toilets next to their homes. So the township says it hopes neighbors will coax, shame or force holdouts to sign, and is even encouraging them to picket outside the homes of those who won't give in.

"Long Beach Township is talking about anarchy here," said Kenneth Porro, an attorney for the holdouts.

We're all familiar with land use contests over beachfront property, from Lucas to Stop the Beach Renourishment (remember, hypothetical hot dog stands and port-a-potties were much discussed in oral argument last December at the US Supreme Court!) and other cases.  But the more typical framework pits the individual landowners against the power of the state.  Here, according to the AP story, the government is intentionally pitting neighbor against neighbor.

"We should all be in this together," [one landowner] said. "I've spoken to some very reasonable people who feel the government is taking away their property rights. Nothing could be further from the truth. It's just an easement to put more sand there."

Well, we'll have to see the terms of the proposed easement, but those recalcitrant neighbors are generally correct--when you give someone an easement, you have certainly given away some of your property rights.  And many first-year property students can tell you that in New Jersey, the public has a right of access over the "dry sand" though application of the public trust doctrine (remember Matthews v. Bay Head Improvement Ass'n?).  The question is whether you need to do that not just for the collective good but to save your house from falling into the sea.  Of course there is one other solution not yet on the table:

Long Beach Township officials say eminent domain and its potential costs are a last resort.

Suffice it to say that beachfront property within 100 miles of both NYC and Philadelphia isn't cheap, even if you do have to share the Parkway with Snookie and the gang.  So condemning an easement through eminent domain might prove well beyond the township's resources.  The holdouts may well be either unreasonable or even acting against their own self-interest.  But I do think that the officials should proceed with caution on the campaign to encourage people to call, picket, and otherwise shame their holdout neighbors.  We all know how personal and emotional property can be, and how land use controversies can do lasting damage to the social fabric of a community.  Intentionally pitting neighbor against neighbor over land can have significant long-term secondary effects.

Matt Festa

Local Newspaper Editor Learns to Love New Urbanism

Matt Festa alerted me to this piece; apparently he loved his time visiting at UGA so much that he still reads the local paper.  One of the editors of the Athens Banner-Herald recently visited Seaside and decided maybe New Urbanism isn't so bad after all.  The examples we've had of mixed-use development here in Athens have not been very successful - the usual opposition to density and trouble getting appropriate commercial have been bugaboos here.  If Athens were ever to get a development that had the quality of Seaside (although how could you ever replicate the sea views?) folks here might better be able to get behind the concept.

Jamie Baker Roskie