Land Use Prof Blog

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

Murfreesboro Mosque Supporters Obtain US District Ct. TRO

It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn.  Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings.  Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed.  The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty.  Here's a copy of the TRO.

Jim K.

 

Letters from the field: Buying a share of utopia in Copenhagen

I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way.  The first of these was a utopian community in Copenhagen, Denmark, called Christiana.  Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries.  When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop  by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since.  About 1,000 residents now call Christiana home.

There are several aspects of Christiana that I think land use folks will find interesting.  First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana.  You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City.  Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum:  Christiana’s residents could stay, but they would have to buy the land from the Danish government.  But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song.  In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land.  But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.  

The result has been one of the most peculiar of solutions:  a stock offering of nominal ownership that investors can purchase. 

As the New York Times described it:

[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”

Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.

I found this struggle over the idea of ownership to be fascinating.  After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn.  However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.”  Am I the only one who thinks of Johnson v. M'Intosh on these facts?

The second interesting issue in Christiana was a poster located on the community’s main meeting room, which establishes the community’s “common law.”  A picture is to the right.  Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang.  But it was the kind of rules that interested me:  they speak, I think, to the kinds of problems that must have evolved in Christiana over time:  hard drugs, biker’s colors, firearms, and so on.  Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively.  Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign.  It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down.  Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements?  I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles.  It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia.  And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all.  Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.

Stephen R. Miller

Mulvaney on Exactions for the Future

Timothy M. Mulvaney (Texas Wesleyan) has posted Exactions for the Future, Baylor Law Review vol. 64, p. 101 (2012).  The abstract:

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. Yet it is not clear these practical impediments are sufficient to warrant the near categorical prohibition on such exactions that is imposed by current Takings Clause jurisprudence. After analyzing the features of takings law that constrict the use of such an exactions scheme, this article offers an alternative approach to exaction imposition involving temporal segmentation of the government’s sought-after interest, which could provide a public tool to address anticipated future harms while offering at least some protection against takings claims.

This is the latest important piece of Prof. Mulvaney's work on exactions and time.  Check it out, and Gig 'em Aggies! 

Matt Festa

Ryan on Obamacare, Federalism, and . . . Land Use

No, this is not a lame attempt by me at expanding the bounds of the "what can't Festa turn into a land use issue" parlor game that I play in class, in order to reach the hot issue du jour.  Erin Ryan (Lewis & Clark) recently posted a fascinating essay on the Environmental Law Prof Blog about the potential effects of the ACA decision on federalism and, in turn, on land use and environmental issues.  From Obamacare and Federalism's Tug of War Within:

In the next few days, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution--the Obamacare decisions.  And while they aren't directly about environmental law, they may as well be--because the same issues animate environmental governance conflicts from cross-boundary pollution management to nuclear waste disposal.  For that reason, I thought I'd take this opportunity to go deep on the federalism issues at the heart of the long-awaited health reform decisions.

. . . .

In service of this balance, the Constitution clearly delegates some responsibilities to one side or the other—for example, the federal government guarantees equal protection of the laws and regulates interstate commerce, while the states manage elections and regulate local land use. But between the easy extremes are realms of governance in which it’s much harder to know what the Constitution really tells us about who should be in charge. Locally regulated land uses become entangled with the protection of navigable waterways that implicate interstate commerce and border-crossing environmental harms.

Read the whole thing for a good legal analysis that goes well beyond the immediate politics of the decision.  Professor Ryan has a new book on the subject called Federalism and the Tug of War Within. 

And, so yes, there is a land use angle to the Obamacare decisions.  But you already know that there's a land use angle to everything. 

Matt Festa

Kearney & Merrill on Private Rights in Public Lands

Joseph D. Kearney (Marquette) and Thomas W. Merrill (Columbia) have posted Private Rights in Public Lands: The Chicago Lakefront, Montgomery Ward, and the Public Dedication Doctrine, 105 Northwestern University Law Review (2011).  The abstract:

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine.

This article begins with a description of the evolution of what is now known as Grant Park. After tracing the origins of the public dedication doctrine in the nineteenth century, the article describes how the doctrine was invoked in controversies over the use of the Chicago lakefront before Montgomery Ward came on the scene. The article then details Ward’s remarkable crusade to save Grant Park as an unencumbered open space, which created a powerful body of precedent having a lasting impact on the use of the park. Next, the article describes the limits of the public dedication doctrine that was recognized in the Ward precedents. The article concludes with some brief observations about why the public trust doctrine eclipsed the public dedication doctrine, a comparison of the efficacy of the two doctrines in the context of the Chicago lakefront, and by offering general reflections about what this history tells us about the promises and pitfalls of recognizing 'antiproperty' rights to contest development of public spaces.

A terrific example of how legal history and land use case studies can illuminate important issues of legal doctrine.

Matt Festa

New SCOTUS ruling on infrastructure assessments

Interesting decision out of the US Supreme Court today on infrastructure assessments.  In a 6-3 ruling in Armour v. Indianapolis, the Court refused an equal protection challenge from property owners to a municipal sewer assessment.  Justice Breyer, writing for the majority, summarized the case and the Court's decision as follows:

For many years, an Indiana statute, the “Barrett Law,” authorized Indiana’s cities to impose upon benefited lot owners the cost of sewer improvement projects. The Law also permitted those lot owners to pay either immediately in the form of a lump sum or over time in installments. In 2005, the city of Indianapolis (City) adopted a new assessment and payment method, the “STEP” plan, and it forgave any Barrett Law installments that lot owners had not yet paid.

A group of lot owners who had already paid their entire Barrett Law assessment in a lump sum believe that the City should have provided them with equivalent refunds. And we must decide whether the City’s refusal to do so unconstitutionally discriminates against them in violation of the Equal Protection Clause, Amdt. 14, §1. We hold that the City had a rational basis for distinguishing between those lot owners who had already paid their share of project costs and those who had not. And we conclude that there is no equal protection violation.

The slip opinion is here.

Stephen R. Miller

Lefcoe on California Redevelopment Decision

George Lefcoe (USC) has posted CRA v. Matosantos: The Demise of Redevelopment in California and a Proposal for a Fresh Start.  The abstract:

This paper describes how redevelopment in California came to an end with the California Supreme Court’s decision in California Redevelopment Association v. Matosantos and how redevelopment could be resuscitated. The first part of the paper highlights the precipitating events leading up to the case: California’s unique property tax history, the successes and drawbacks of redevelopment, how redevelopment is financed, and the text and politics of Proposition 22, the state constitutional predicate for the Court’s opinion. The second section describes the arguments and outcome of the case in which the Court upheld a statute dissolving redevelopment agencies (RDAs) and simultaneously struck down a companion bill — a “pay-to-stay” law — that would have enabled cities and counties to preserve their RDAs by pledging local funds to the state. A concluding section proposes that California legislators consider a new redevelopment enabling law, modeled along the lines of Texas’s tax increment reinvestment zones (TIRZs). Such a statute would conform to the guidelines for constitutionality from the concluding paragraph of the Court’s opinion in Matosantos, and it would be fiscally responsible because it limits the use of tax increment financing.

Matt Festa

Widener's Constitutional Environmenal Rights Workshop

Yesterday, I spent a delightful jam-packed six hours at a constitutional environmental rights workshop at Widener Law School (Delaware not Pennsylvania) hosted by James May and Erin Daly. The workshop brought in scholars from many corners of the US and elsewhere to talk about how environmental rights are and should be embodied in national and subnational constitutions.

The participants indulgently listened to me ramble about a very new project I have examining the constitutionalization of the Public Trust Doctrine. While many others have written cogently and persuassively about the role of the public trust doctrine (Sax, Thompson, and Blumm jump quickly to ming) and powerhouses like Robin Kudis Craig (I love that she has a wikipedia page) have even helpfully catalogued public trust language in state constitutions, I am seeking to explore the "so what" part of the question. If a state chooses to constitutionalize their public trust doctrine, does that result in any on the ground changes? Are those state more likely to have healthier environments? Are those courts likely to be more protective of the environment? Will the state legislatures feel obligated empowered to pass legislative protecting natural resources? These are the questions I am seeking to explore. (Any advice on how to do so would be warmly welcomed).

Jessie Owley

Ely on Property Rights and the Supreme Court in the Gilded Age

James W. Ely, Jr. (Vanderbilt) has posted Property Rights and the Supreme Court in the Gilded Age, forthcoming in the Journal of Supreme Court History. The abstract:

This article challenges the conventional wisdom about the property-rights jurisprudence of the Supreme Court in the period 1870-1900. It asserts that the Court was animated to protect the rights of property owners as a means of upholding individual liberty against governmental overreaching. The justices saw private property as essential for the enjoyment of liberty. This commitment to individualistic values was reinforced by utilitarian considerations. The Court repeatedly stressed the vital role of property and contractual rights as the basis of economic growth. In upholding property right the justices drew upon the long-standing Anglo-American tradition of property-conscious constitutionalism. The essay concluded that there was a close affinity between the views of the framers of the Constitution concerning the sanctity of property rights and the jurisprudence of the Gilded Age.

Professor Ely's article makes a really important connection between constitutional property theory in the founding era and a century later in the gilded age. These two eras have been largely treated as completely separate in the scholarship about the development of property as a constitutional concept--and these stories in turn have influenced the understanding of property rights through the twentieth century to today. The analysis contributes to a historical understanding of property rights as a central component of individual liberty in the Constitution.

Matt Festa

New Lawsuit Challenges San Francisco Billboard Settlement

Most land use profs are familiar with Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981), a U.S. Supreme Court case that helped to clarify the extent to which billboards could be regulated under the First Amendment.  In the years following Metromedia, several cities have adopted billboard restrictions based on the case's holding, which generally allows for greater restrictions on offsite and commercial signage.  Still, despite decades of case law on the subject, billboard regulation remains a relatively risky and controversial endeavor.  A new lawsuit against the City of San Francisco is the latest example of cities' ongoing difficulty in restricting billboards.

In 2002, San Francisco voters passed Proposition G--a ballot measure later codified as City Planning Code Section 611 that severely restricts offsite commercial billboards within city limits.  Earlier this month, the citizen group "San Francisco Beautiful" filed a complaint alleging that a settlement agreement between an outdoor advertising company and the City of San Francisco violated the provisions of Proposition G.  According to local newpaper articles posted here and here, the settlement required Metro Fuel LLC, a billboard company, to remove several large billboards and pay $1.75 million in fines. However, the settlement also effectively forgave more than $5 million in other fines and allowed Metro Fuel to replace its decommissioned billboards with an even greater number of smaller signs. 

In a new complaint filed in a California Superior Court, San Francisco Beautiful is alleging that the City's settlement violated Proposition G by allowing an overall increase in billboards.    Assuming that Metro Fuel's aggregate square footage of signage is reduced under the settlement, should it matter that the company's actual number of signs is allowed to increase?  This may be a worthwhile case for land use profs to follow in the coming months, particularly since most of us will be covering Metromedia in our courses again next year.

Troy Rule

Memorial Day

Today was Memorial Day in the US.  There are lots of land use issues that we can associate with Memorial Day, which, stripped to its essence, is designed as a day to remember the military members who died in service to the nation.  There is the obvious land use issue of cemeteries, and the related legal and cultural norms governing how we memorialize the dead (check out any of the interesting blog posts or scholarship by Al Brophy and Tanya Marsh on cemeteries).  It gets even more relevant when we start talking about government-owned national or veterans' cemeteries, and the attendant controversies about First Amendment and other issues.  [The photo is from last year's Memorial Day ceremony at Houston National Cemetery, which my daughter attended to honor fallen Marine Lance Corporal Matthew Sauer Medlicott.]  Of course, there are always land use and local government issues involved with things like parades and public ceremonies, and in many communities there are specific rules that govern the "summer season" informally commenced on Memorial Day weekend.

For this post, though, I'll go back to the origins of the holiday.  Interestingly, it started as a private or quasi-public endeavor (perhaps like most civic affairs in the nineteenth century).  In the immediate aftermath of the American Civil War--and for much of the rest of the lives of the generations that fought it--Americans on both sides focused a great deal of attention on preserving its history and creating/controlling its public memory.  In 1868 General John Logan, head of the Union veterans' organization the Grand Army of the Republic (a private society with a great deal of government involvement), issued General Order No. 11, creating what became known as Decoration Day:

The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.

Even though this Decoration Day was only adopted in Union states until after World War I (when it was renamed Memorial Day and formally associated with all American wars), the former Confederate states had their own versions to remember the war dead at cemeteries and public venues.  And according to eminent Yale historian David Blight, the first Memorial Day celebration was performed in Charleston, SC, by newly-liberated blacks:

Thousands of black Charlestonians, most former slaves, remained in the city and conducted a series of commemorations to declare their sense of the meaning of the war. The largest of these events, and unknown until some extraordinary luck in my recent research, took place on May 1, 1865. During the final year of the war, the Confederates had converted the planters' horse track, the Washington Race Course and Jockey Club, into an outdoor prison. Union soldiers were kept in horrible conditions in the interior of the track; at least 257 died of exposure and disease and were hastily buried in a mass grave behind the grandstand. Some twenty-eight black workmen went to the site, re-buried the Union dead properly, and built a high fence around the cemetery. They whitewashed the fence and built an archway over an entrance on which they inscribed the words, "Martyrs of the Race Course" . . . . Then, black Charlestonians in cooperation with white missionaries and teachers, staged an unforgettable parade of 10,000 people on the slaveholders' race course. The symbolic power of the low-country planter aristocracy's horse track (where they had displayed their wealth, leisure, and influence) was not lost on the freedpeople.

Anyone interested in the contested history of these issues--with full attention to the negative aspects as well--should read the magnificent book by Prof. Blight (with a name like that, it's a shame he didn't go into land use!), Race and Reunion: The Civil War in American Memory.  And a related part of this history, along with the Decoration/Memorial Day commemorations, was the incipient historic preservation movement.  This confluence of impulses, as well as the also-new movement for environmental conservation, led to the novel idea of having the federal government acquire and administer large tracts of land for the purpose of preserving Civil War history.  As noted in the fascinating monograph by the late National Park Service Historian Ronald F. Lee, The Origin & Evolution of the National Military Park Idea, this was a new and not-uncontroversial exercise of government power over land use:

The idea of the Nation acquiring an entire battlefield and preserving it for historical purposes was new in 1890. It is therefore not surprising that it soon engendered a serious controversy, which arose, fittingly enough, at Gettysburg. The controversy involved two questions of fundamental importance to the future of historic preservation by the Federal Government. Is preserving and marking the site of an historic battlefield a public purpose and use? If so, is it a purpose for which Congress may authorize acquisition of the necessary land by power of eminent domain? The circumstances of this dispute, which had to be settled by the Supreme Court of the United States, are of unusual interest and provide an appropriate introduction to our story.

Lee describes the case, United States v. Gettysburg Electric Ry. Co., 160 U.S. 668 (1896), in the on-line version of the book provided by the NPS.  The case was brought by a railway which objected to the federal government's use of eminent domain to condemn their right of way for construction of a railway to take tourists to the significant "Devil's Den" area of the battlefield, "claiming that establishment of Gettysburg National Park was not a public purpose within the meaning of earlier legislation and that 'preserving lines of battle' and 'properly marking with tablets the positions occupied' were not public uses which permitted the condemnation of private property by the United States."  [What a long way from Kelo that was!]  Justice Rufus Peckham wrote for the unanimous majority in upholding the taking for preservation purposes (and not simply because members of the public could visit the park):

Such a use seems necessarily not only a public use, but one so closely connected with the welfare of the republic itself as to be within the powers granted Congress by the constitution for the purpose of protecting and preserving the whole country.

The Court thus established the constitutionality of taking land by the federal government for national parks, and struck an important legal blow for historic preservation generally.

So from cemeteries to public memory to national parks and historic preservation and much more, Memorial Day is tied to land use law in many ways.  I hope that our US readers have had a good one, and with remembrance for those whom the holiday commends.

Matt Festa

Stevenson & Eckhart on Standing as Channeling in the Administrative State

My colleague Drury D. Stevenson (South Texas) and Sonny Eckhart (JD, South Texas) have posted Standing as Channeling in the Administrative State, forthcoming in the Boston College Law Review, Vol. 53 (2012).  The abstract:

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing.

This Article takes the suggestion a step further, and argues that Congress has implicitly delegated the matter to the administrative agencies with primary enforcement authority over the subject matter. Courts regularly allow agencies to fill gaps in their respective statutes, meaning congressional silence on a point often constitutes discretionary leeway for the agency charged with implementation of the statute. Agencies already have explicit statutory authority to preempt citizen suits or define violations for which parties may sue. The existing statutory framework therefore suggests agencies could promulgate rules for the injury-in-fact and causation prongs of standing in citizen suits. Moreover, agencies have an advantage over courts in terms of expertise about the harms involved and which suits best represent the public interest. On the more delicate question of citizen suits against agencies themselves, agencies could default to the “special solicitude for states” rule illustrated in Massachusetts v. EPA. Finally, this Article explains how standing can function as a beneficial channeling tool rather than an awkward screening device, by allowing agencies to align citizen suits more closely with the larger public interest and established policy goals.

The article's administrative-law approach would have special significance for environmental and land use issues, as evidenced by its discussions of American Electric Power v. Connecticut and Massachusetts v. EPA, and the fact that environmental issues are an important subject-matter source of citizen suits. 

You should really check out Dru Stevenson's excellent Privatization Blog, which follows a lot of important land use issues in state & local government, including the privatization of schools, prisons, and other local services.  And some of you may remember Sonny Eckhart's guest-post here last year on a development in the Severance case. 

Matt Festa

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

Oswald on Deference in Judicial Review of Public Use Determinations

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.

Matt Festa

Adler on the Declining Role of Navigability

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. 

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

Carlson on Priceless Property

Kirsten Matoy Carlson (Wayne State) has posted Priceless Property, forthcoming in the Georgia State University Law Review.  The abstract:

In 2011, the poorest Indians in the United States refused to accept over $1 billion dollars from the United States government. They reiterated their long held belief that money – even $1.3 billion dollars – could not compensate them for the taking of their beloved Black Hills. A closer look at the formation of the Sioux claim to the Black Hills helps us to understand why the Sioux Nation has repeatedly rejected over $1 billion dollars in compensation for land taken by the United States over 100 years ago. This article seeks to understand why the Sioux view the Black Hills as priceless by studying the formation of the Black Hills claim. It constructs a new, richer approach to understanding dispute formation by combining narrative analysis with the sociolegal framework for explaining dispute formation. The article argues that narratives enrich the naming, claiming, and blaming stages of dispute creation and illustrates the usefulness of this new approach through a case study of the Black Hills claim. It uses the autobiographical work of an ordinary Sioux woman to provide a narrative lens to the creation of the Sioux claim to the Black Hills. American Indian Stories by Zitkala-Sa presents a narrative of Sioux life around the time of the claims emergence. By contextualizing and humanizing the claim, my analysis provides insights into why the Sioux claim to the Black Hills emerged into a legal dispute and helps to explain why the Black Hills remain priceless property to the Sioux Nation today.

This article employs more of a law-and-humanities approach focusing on social and historical context and personal stories, which I think makes it an interesting read.

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

Rule on Airspace and the Takings Clause

Troy A. Rule has a very interesting article up: Airspace and the Takings Clause, forthcoming in the Washington University Law Review.  The abstract:

This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.

Troy, our excellent guest blogger, has written before about sun, wind, and air, so this article is coming from one of the emerging experts in property rights above the dirt. 

Matt Festa