Thursday, May 24, 2012
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.
May 24, 2012 in Beaches, Caselaw, Climate, Coastal Regulation, Conservation Easements, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Local Government, Property Rights, Scholarship, State Government, Supreme Court, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 22, 2012
Lynda J. Oswald (Michigan--Business) has posted The Role of Deference in Judicial Review of Public Use Determinations, forthcoming in 39 Boston College Environmental Affairs Law Review (2012). The abstract:
In Kelo v. City of New London, the United States Supreme Court emphasized its longstanding practice of deferring to legislative determinations of public use. However, the Court also explicitly acknowledged that the federal Constitution sets a floor, not a ceiling, on individual rights and that the state courts are entitled to take a less deferential approach under their own state constitutions or statutes. This manuscript examines: (1) the ways in which the role of deference in judicial review of public use determinations can vary between federal and state courts and among state jurisdictions; and (2) the difficult issues raised by the interplay between legislatures and courts in public use determinations. Because the Supreme Court’s deferential approach to public use disputes provides little succor to property owners challenging takings, state court challenges to takings are likely to assume increasing importance. Property owners, therefore, need to understand the issues raised by deference in judicial review of public use challenges in both federal and state courts.
Saturday, May 19, 2012
Robert W. Adler (Utah) has posted The Ancient Mariner of Constitutional Law: The Declining Role of Navigability, forthcoming in Vol. 90 Washington University Law Review (2013). The abstract:
For the first time in three decades, in its 2011-2012 Term the U.S. Supreme Court decided a case involving “navigability for title,” in which the issue of whether a river or other body of water is navigable determines whether a state has owned the beds and banks of the waterway since statehood. PPL Montana, LLC v. State, __ S. Ct. __, No. 10-218, 2012 WL 555205 (2012). The Court held that, in determining navigability for title, courts must focus on discrete segments of the river rather than the river as a whole, and that evidence of current navigability can only be used in limited circumstances to prove navigability at statehood. Under this ruling, as time passes it will become increasingly difficult for states to prove that a river was navigable at statehood, particularly where historical records are scarce.
The PPL Montana case, however, raises more fundamental questions about the continuing role of navigability as a central tenet of U.S. constitutional law, for which it serves several distinct but related purposes. In addition to the navigability for title test, slightly different navigability tests govern the geographical scope of federal authority under the Commerce Clause and the federal navigational servitude, and of Article III admiralty jurisdiction. Each of these doctrines dates to a time when rivers were our most important avenues of commerce. Waterways continue to serve as major avenues of commerce. Through the lens of twenty-first century science and values, however, rivers serve a much broader range of public purposes, such as water supply, biodiversity and habitat, fish and wildlife production, recreational use, flood control and watershed protection, and pollution assimilation. The role of navigability has declined accordingly for Commerce Clause purposes, but not for purposes of allocating public versus private proprietary rights in rivers and other waters. This article suggests that while navigability obviously remains relevant for some constitutional purposes, its role should diminish as the value of navigation as the main public function of waterways continues to decline relative to other public uses and values.
We've talked about the PPL Montana case in the past, and this article provides even further support for its significance. The "navigable waters" question is going to be of continuing importance for both property law and constitutional law.
I love the "Rime" reference in the title, too.
Friday, May 18, 2012
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.
Tuesday, May 8, 2012
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!
Friday, April 6, 2012
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.
April 6, 2012 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Federal Government, Property Rights, State Government, Supreme Court, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
Saturday, March 24, 2012
Douglas C. Harris (UBC Faculty of Law) has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver, published in CANADIAN PROPERTY LAW STORIES, James Muir, Eric Tucker, and Bruce Ziff, eds., Osgoode Society and Irwin Law, 2012. The abstract:
The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.
Monday, March 5, 2012
Ilya Somin (George Mason) has posted What if Kelo v. City of New London had Gone the Other Way?, published at Indiana Law Review, Vol. 45, No. 1, pp. 21-39, 2011 (What If Counterfactuals in Constitutional History Symposium) . The abstract:
Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.
Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.
Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.
Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.
Tuesday, February 28, 2012
Gregory M. Stein (Tennessee) has posted The Modest Impact of Palazzolo v. Rhode Island, forthcoming in the Vermont Law Review. The abstract:
Before 2001, state and federal courts did not agree on the extent to which a property owner’s regulatory takings claim should be weakened by the existence of legal restrictions on her use of the property at the time she acquired it. The Palazzolo Court addressed this doctrinal confusion but did not completely resolve it, offering six opinions that partially contradict each other. Some of this discord has persisted, with Palazzolo already cited in nearly five hundred judicial opinions, and not always consistently.
This Article examines the impact Palazzolo has had on state and lower federal courts. After reviewing the law before Palazzolo and the Supreme Court’s decision in that case, the Article offers suggestions as to how courts ought to interpret the contradictory opinions in Palazzolo. More specifically, cases arising at different points in the ripening process should be treated differently, and only a small subset of takings claims should benefit from Palazzolo’s relaxation of the notice rule.
Next the Article assesses the evidence, in an effort to determine whether courts interpreting Palazzolo have actually been following these suggestions. First, it examines the small number of claims in which an owner that probably would have lost before 2001 prevailed. It then compares these results with the far more numerous cases in which an owner that probably would have lost before 2001 still lost even after that decision.
The Article closes by offering a more generalized assessment of the effects of Palazzolo. It concludes that nearly all of the courts to cite Palazzolo have heeded its requirements, but only a few cases have turned out differently than they would have before 2001. The Court’s ripeness rules dictate that few landowners should benefit from the holding in Palazzolo, and only a small number actually do benefit. Lower courts understand Palazzolo, they have been applying it correctly, and they should continue to do what they have been doing.
Friday, February 24, 2012
Taking a cue from the Stop the Beach plurality, PPL Montana had suggested that the Montana Supreme Court was the “operative force” behind a “land grab” of privately-owned riverbeds, such that the decision itself could be violative of the Takings Clause. Yet the U.S. Supreme Court ultimately did not address this assertion. Still, Justice Kennedy’s opinion in PPL Montana could be viewed as the continuation of a disturbing trend promoted by the Court in Stop the Beach: it represents an implicit, wide-ranging distrust of state courts and a disregard for the principle that property rights are generally determined with reference to state law.
So the Court neglected to use the opportunity to expand on the judicial takings theory espoused in Stop the Beach, and seems to potentially add confusion to the question of federal judicial deference to state-law interpretations of property rights. I'll add one other preliminary observation about the opinion: by framing the case around the fact question of whether certain riverbeds were navigable or required portage at the time of statehood, the decision highlights the importance of history and historical interpretation to issues of property law.
Thursday, February 23, 2012
The U.S. Supreme Court published its decision in PPL Montana, LLC, v. Montana. The opinion is here.
A unanimous Court (Kennedy, J.) reversed the Montana Supreme Court's holding that the State of Montana owns and may charge for the use of the riverbeds at issue.
Prof. Tim Mulvaney had an insightful analysis of the cert grant for us in a guest-post last year. We previewed the oral argument here. SCOTUSblog has, as always, a great roundup of early analysis and links.
I look forward to hearing more discussion of this important land use case in the near future.
Tuesday, February 21, 2012
Sean F. Nolon (Vermont) has posted another article at the interface of land use and ADR: Do We Need Environmental Mediators? Indigenous Environmental Mediation: Exploring New Models for Resolving Environmental Disputes. The abstract:
According to the best practices of environmental mediation, mediators are professionals who come from outside the community. The conventional wisdom holds that this distance from the parties and the dispute increases the likelihood that the mediator will manage the process in an independent and neutral manner and decrease the likelihood of any substantive bias. Yet, in practice, many environmental mediations go forward without the use of outside mediators relying instead on mediators who come from within the community. While recognized in the theory as an option, the use of community mediators has not received much attention in the scholarship. When looking at disputes involving inside mediators more closely, a pattern of practice emerges that can benefit agencies and individuals in their decisions to employ environmental mediators. This article explores some of the disputes where inside mediators have been used to construct a complementary model to that of the outside model. This complementary model, labeled “indigenous environmental mediation,” relies on mediators who come from the community, instead of outsiders, to help parties improve relationships, ensure compliance with agreements, and advocate that decision making agencies respect stakeholder agreements. This article provides support for the continued use of outside mediators but also suggests a more intentional effort to employ indigenous mediators in environmental disputes.
Monday, February 20, 2012
The case of Harmon v. Markus, currently before the Supreme Court on a petition for cert, is starting to draw some attention. Among others, George Will devoted his latest column to urging the Court to hear the case in Supreme Court should take on New York City's Rent Control Laws:
James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.
The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.
This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.
This is a tough issue on the equities; rent-control laws (most prominently in New York) are of incredible help to some people and have a very negative effect on others, not only developers, but also (perhaps most especially) would-be entrants-- which is why the politics on this issue are more difficult to track. Rent control favoring current (and often, inherited) tenants is getting increasingly hard to justify on policy grounds, but as a matter of property law, is it unconstitutional? Harder to prove on legal doctrine.
Richard Epstein has a podcast on the case for the Federalist Society. I've been looking for commentaries on the other side but haven't found quite as much; let me know.
February 20, 2012 in Affordable Housing, Caselaw, Constitutional Law, Landlord-Tenant, Local Government, New York, Politics, Property Rights, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Thursday, January 5, 2012
I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making). Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal. Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:
On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.
January 5, 2012 in California, Caselaw, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Local Government, Politics, Property Rights, Real Estate Transactions, Redevelopment, State Government | Permalink | Comments (1) | TrackBack (0)
Friday, December 30, 2011
Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012). Here's the Amazon blurb:
Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.
And for a preview, Prof. Wolf has posted the introduction on SSRN. The abstract:
This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.
What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.
Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.
December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)
Monday, December 5, 2011
On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana. Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:
On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.
That's enough to get me excited (seriously). Go read the rest of Prof. Merrill's informative analysis. (h/t to our friends at Property Prof Blog for the link).
And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:
In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark. As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.” The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.
One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades. How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.
Should be very interesting. Stay tuned.
December 5, 2011 in Caselaw, Constitutional Law, Federal Government, History, Property Rights, Scholarship, State Government, Supreme Court, Takings, Transportation, Water | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 30, 2011
So, today I waded into the local controversy about the possibility of a Wal-Mart in downtown Athens with an editorial in the local weekly. [Note - this article is no longer available on the original site, so this link is to a re-posted version.] Specifically, I responded to media reports that the county attorney has said the developers have vested rights to develop the property based on the amount of money they claim to have spent on site preparation. Now, Georgia has a pretty generous vested rights doctrine, but it's not that generous. As in most states, you still have to have some kind of official assurance for rights to vest. Apparently now the county attorney doesn't want to talk about it, but other folks on both sides of the issue certainly have been.
This type of controversy is not unique to Athens, apparently. A casual perusal of media reports turns up vested rights controversies over proposed Wal-Marts in Hood River, Oregon, Leon County, Florida, San Antonio, Texas, and Abingdon, Virginia. Is this some kind of trend?
Jamie Baker Roskie
Monday, October 31, 2011
Earlier in the year, I blogged about a decision (Ibañez) by the Massachusetts Supreme Judicial Court finding as invalid a land title claimed by a foreclosing bank that could not show that it held the mortgage at the time of foreclosure. Prior to that ruling, a stated practitioners' standard recognized as curative post-foreclosure assignments of mortgages. The Bevilacqua v. Rodriquez case presented the Court (previously blogged about here) with similarly sloppy handling of the mortgage assignments but also a third-party purchaser (and redeveloper) of the property from the foreclosing bank.
Earlier this month, the Mass. SJC again found that the foreclosing bank had no title to transfer and that the title claimant's more sympathetic position with regard to the botched securitization process did not create title. The Court dismissed his "try title" action and suggested that his equitable rights to the (as yet unforeclosed) mortgage might support a possible reforeclosure--a less than reassuring directive if the purchaser has invested in the property more than the lien value of the mortgage.
Monday, October 17, 2011
Richard Epstein (NYU) has written Littoral Rights under the Takings Doctrine: the Clash between the Ius Naturale and Stop the Beach Renourishment, 6 Duke J. Const. L & Pub. Policy 37 (2011). He begins with the point that, due to the self-contradictory nature of judicial takings in a unitary court system, "the doctrine of judicial takings can, in practice, only arise in a federalist system." He goes on to argue for an appropriate deployment of centralized, federal oversight of state courts in defense of age-old, decentralized ius naturale. He sees Stop the Beach as a missed opportunity to invalidate years of Florida precedent as well as the Preservation Act that occasioned the controversy. He concludes that application of the judicial takings doctrine "should be limited to those circumstances in which the decided cases make a radical break from well-established common law patterns that systematically work for the advantage of the state or some identifiable private faction."
Monday, October 3, 2011
Ilya Somin (George Mason) has posted Let there be Blight: Blight Condemnations in New York after Goldstein and Kaur, part of a February 2011 symposium “Taking New York: The Opportunities, Challenges, and Dangers posed by the Use of Eminent Domain in New York”, and published at 38 Fordham Urban Law Journal 1193 (2011). The abstract:
The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly, by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.
Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.
Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.
Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.
Looks like another insightful piece on this still-controversial subject.
October 3, 2011 in Caselaw, Conferences, Constitutional Law, Development, Eminent Domain, New York, Property Rights, Redevelopment, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)