Land Use Prof Blog

Stern on State Legislative Checks and Judicial Takings

Here's another recently-posted paper from Stephanie Stern (Chicago-Kent): Protecting Property Through Politics: State Legislative Checks and Judicial Takings, forthcoming in the Minnesota Law Review.  The abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Matt Festa

Police Powers, Free Speech, and the Chick-fil-A Land Use Controversy

The Chick-fil-A land use controversy has mostly focused on freedom of speech, but I think there is a larger point about the police-power basis of land use regulation that has been overlooked.  In the wake of the Chick-fil-A CEO's comments on gay marriage, and the subsequent statements of public officials in Chicago and Boston indicating their opposition to building new Chick-fil-A franchises in their jurisdictions, there seems to be a general agreement that it would be illegal to deny building rights on the basis of the CEO's speech.  Ken Stahl and Stephen Miller have offered additional insights on the political, tax, and other potential motivations behind this controversy, with which I completely agree.  In this post, I want to expand on Ken's point about a potential Fourteenth Amendment violation of basing a land use decision on "animus" against the owner, and to peel back the onion a little bit and consider what might be the primary legal basis to a challenge to such a land use denial.

The general agreement seems to focus on the First Amendment free speech issue.  Eugene Volokh seems to have the definitive analysis that, whether or not one agrees with the CEO's opinions, it would be a First Amendment violation to deny a building permit on that basis (h/t Property Prof).  Viewed through the general prism of free speech and the Bill of Rights, this is entirely correct, and is probably sufficient for the public understanding of the issue.  As Prof. Volokh's caselaw indicates, there can be a First Amendment violation in denying a permit based on the property owner's speech.  But I think that's actually a secondary issue when it comes down to hypothetical litigation here.  What's really the primary issue, as I see it, is whether or not such a denial would be a violation of the police power itself.

The Chick-fil-A hypothetical permit denial does not on its face regulate speech: neither the CEO's personal remarks, nor the official speech of the corporation are being suppressed.  While there is a colorable as-applied claim of retaliation through the land use process in this hypo, the way I see it is that the primary cause of action would be that the permit denial was a violation of the statutory zoning/regulatory power itself.  In other words, Chick-fil-A would start by arguing that the city's denial of permission to build is not legitimately related to the purposes for which the state legislature granted the power to regulate.

The power of local governments to engage in planning, zoning, and building regulations comes from the police powers--the state legislature's plenary authority to regulate.  The Standard State Zoning Enabling Act, promulgated by Secretary Hoover's Commerce Department in 1926, starts with the standard description of the police-power font of authority for all modern land use regulation, which is "[f]or the purpose of promoting health, safety, morals, or the general welfare of the community . . . ."  This means that in theory, as long as there is a legitimate reason for regulating on those broad bases, a local government can be empowered to regulate land use in its political discretion.  Therefore there is a "presumption of constitutionality" granted to land use regulations (see Mandelker & Tarlock 1992 for a nuanced analysis of the presumption in judicial review).  Judicial review--again, in theory--has generally centered on whether the regulation itself (whether a use restriction, site requirement, etc.) is legitimately related to one of the police-power purposes.  A classic Euclidean example would be restriction of industrial uses from a residential area, for health and safety purposes.  

While the courts have given broad interpretation to the police power justifications of land use regulations, the outer limit is supposed to be--again, in theory--that the nature of the restriction is itself somehow related to the objective.  What it can't be is an arbitrary and capricious restriction based on considerations outside the police power. It's very similar to the "rational basis" standard of scrutinty that all lawyers learn about in consitutional law.

The reason this is important is because the presumption of constitutionality usually holds, the police powers usually win, and "arbitrary and capricious" challenges to land use decisions are hard to prove and usually lose.  Steve Clowney noted Matt Yglesias' insight that almost any seemingly-legitimate content-neutral reason could give a police-power justification to regulate despte ulterior motives (though I think his example of a Sunday-opening requirement isn't the best one--just about anything involving traffic, for example, would be much easier to justify), and this is obviously a longstanding issue in land use law.  But if I were trying to prove that a negative land use decision was outside the bounds of the police power basis of government regulation, I couldn't ask for a better piece of evidence than a published statement by a City Alderman like this:

"Because of this man's ignorance, I will now be denying Chick-fil-A's permit to open a restaurant in the 1st Ward."

(emphasis added).  In other words, the primary reason for the negative land use decision does not have anything to do with the actual use of the land itself, but instead is based primarily on the government official's opinion about the property owner's opinions about topics extraneous to the land use (again, the decision is not based on any discriminatory practice, or on speech taking place on the site).  This may in fact be a decision that is not rationally related to the police power basis for regulation, and could be struck down for that reason alone.  This is important because while the First Amendment angle that had dominated the discussion of the issue could apply "strict scrutiny" to the decision, this situation could be the much rarer case where a court could find a government decision to be arbitrary and capricous, and therefore to flunk the rational basis test itself.   Which means that this is potentially much more than just a case of an individual right trumping the regulatory power; it means that the city didn't have the power to do it in the first place.

This way of looking at the controversy allows us to consider the larger issue of what are the outer bounds of legitimate land use regulation, in a way that we don't often get to see in the real world.  I'm still no fan of the substance of the CEO's remarks on gay marriage, but as a land use specialist, I'm also very disturbed by what Ken identified as an attitude of "entitlement" to near-absolute discretion over land use decisions by government officials in informal systems such as Chicago's traditional "aldermanic privilege," which is apparently so ingrained that it can lead an elected official to say things like:

"You have the right to say what you want to say, but zoning is not a right."

Well, maybe not, but the latter certainly can't depend on what a government official thinks of the former.  Zoning still has to comport with the rule of law.

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

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

Pipelines, Eminent Domain, and Property Rights

Up until now the Keystone Pipeline issue has been cast mainly as a contest between an economic development imperative and environmental conservation.  Legal commentators have analyzed it as an environmental issue.  As most people can infer, though, the notion of building an "infrastructure" project from Canada to the Gulf of Mexico will require some land rights.  Perhaps only in Texas can we see the underlying tension between two principles that are very often in direct conflict: the exploitation of oil and gas resources, and the property owner's rights to her land.  The New York Times last week did a fascinating story on one Texas landowner's fight against the eminent domain authority of the Keystone Pipeline, An Old Texas Tale Retold: The Farmer versus the Oil Company.

Ms. Crawford is worried about the possible contamination of her creek. She pointed out that the Keystone 1, TransCanada’s first pipeline, had a dozen spills in its first year of operation.

“I called my farm insurance agent and asked what happens if there’s a spill, I can’t water my crops, and my corn dies,” she said. “He said my insurance won’t cover that. I’d have to sue TransCanada for damages.”

The Crawfords are the last holdouts in Lamar County. (It is unclear how many are left in Texas; the company says it has 99 percent of the rights of way secured.) TransCanada asserts that it has used eminent domain only as “an absolute last resort” in an estimated 19 out of 1,452 land tracts in Texas. Critics dispute this number. . . .

Asked if she would take TransCanada’s offer now — if it meant the full $21,000, with all of her conditions met — she did not hesitate. “No,” she said. “There’s a $20,000 check sitting in the courthouse waiting for us,” she said. “But if we touch it, game over. We lose the use of our land, and we admit what they’re doing is right.”

This is a longstanding issue, both historically and today, but it often gets overlooked when people conflate Texas stereotypes about both property rights and solicitude for oil and gas.  Ilya Somin commented on the article at the Volokh Conspiracy, noting correctly that despite its pro-property rights reputation and cosmetic legislation, Texas law still empowers quite a bit of eminent domain for economic development purposes:

Such efforts are unlikely to succeed in Texas. As I described in this article, Texas is one of many states that have passed post-Kelo reform laws that pretend to constrain economic development takings without actually doing so. They might have a better chance in one of the other states through which the pipeline must pass.

The larger question that he poses is whether and how environmental concerns will play a part in future discussions about eminent domain and the never-ending debate over the essentially contested concepts of property rights and the common good.  In the real world of land use, the alignment of stakeholders, interests, policy preferences, and legal interpretations isn't always as easy to predict as the cartoon versions might imply.

Matt Festa

Fennell Helps us Picture Takings

One of my (few) disappointments this semester was that I was out of town the day Lee Fennell (Chicago) came to ND Law to present a really interesting paper broadening legal theory's view of resource-allocation-relevant costs beyond the conventional focus on "transaction costs."  I did have the consolation of hearing many terrific papers at the ALPS Conference at Georgetown on the day she presented here in South Bend. Hopefully, that paper, Resource Access Costs, will be finding its way to SSRN and this blog soon.  

In the meantime, she has posted Picturing Takings, 88 Notre Dame L. Rev ___ (forthcoming 2012), an article that makes visual sense of a doctrine that has so successfully defied textual explanatory efforts. Here's the abstract:

Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task of finding our way through it has become more difficult, and yet more interesting, with the Supreme Court’s recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally. [Note: a PowerPoint version of the diagrams is available on the author's faculty webpage or can be obtained by emailing the author]. 

 I am very hopeful that this article will be helpful not only to my understanding of takings but also to my (first-time) teaching of Land Use Planning next spring. Here is a link to the PowerPoint presentation referred to at the end of the abstract.

Jim K.

Somin on What if Kelo had Gone the Other Way?

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.

Matt Festa

Stein on the Modest Impact of Palazzolo

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.

Matt Festa

Tear Down This Mansion?

A Michigan appellate court has ordered the owner to tear down what looks to be a fairly elaborate and presumably expensive home, because it is only 80 feet from the neighboring property, instead of the 100 feet required in the deed restrictions.  Talk about strict enforcement!  But as the neighbors say in the video, rules are rules. 

The news story is here at msnbc.com.  Might be an interesting clip to show for servitudes, land use, or real estate transactions.  Thanks to Helen Jenkins for the pointer.

Matt Festa

City Journal's take on the California Redevlopment decision

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.

Matt Festa

Wolf on the Supreme Court and the Environment

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.

Matt Festa

Sterk and Brunelle on Zoning and Res Judicata

Stewart Sterk (Cardozo) and Kimberly Brunelle have posted Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases, 63 Fla. L. Rev 1139 (2011).  Here's the abstract:

 Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen to live and to the economic value of their homes.

The protagonists in zoning disputes-landowners and neighbors-invest time and other resources to persuade the relevant decisionmakers to rule in the protagonists’ favor. When the parties make that investment, should they assume that a decision made today will have some enduring significance? Whether the decision is “final” may play an important role in shaping the parties’ participation and presentations. If a zoning board were free to deny a variance today and to grant the identical variance next week (or next year), there would be less reason for neighbors (and landowner applicants) to spend time and money framing their arguments for today’s decision.

Many of the reasons that underlie res judicata doctrine apply to these local land use disputes. In the interest of conserving the resources of all parties- landowners, neighbors, and local decisionmakers-issues should be decided once, not multiple times. There is little reason to think that, were the issues decided multiple times, subsequent determinations would improve on prior ones. This is especially true in the context of land use, where the issues involve primarily questions of fact, and parties have incentives to come forward with all relevant information at the time the first decisionmaker considers the dispute.

If a court, rather than a zoning board, were resolving the dispute, res judicata doctrine would circumscribe the power of a subsequent court to depart from the earlier determination. In the first instance, however, zoning disputes are resolved not by the courts, but by local legislatures and administrative bodies. No finality principle comparable to res judicata attaches to legislative determinations, no matter which legislative body-Congress, a state legislature, or a local city council- makes those determinations. Unlike most judicial decisions, which resolve discrete disputes over past events, legislatures act prospectively. Finality rules would preclude legislative decisionmakers from considering new facts that cast doubt on the wisdom of past decisions. It should not be surprising, then, that legislatures are typically free of finality constraints.

In contrast to the well-established principles that apply to judicial and legislative determinations, the applicability of finality principles is unclear when it comes to administrative decisions by the local zoning board, such as the grant or denial of a variance. Courts sometimes treat zoning board decisions as if they were judicial decisions, using res judicata language to preclude new applications for relief that the zoning board previously denied. In other cases, courts-often from the same jurisdictions-permit boards to entertain applications virtually identical to previously rejected applications. Although courts sometimes suggest the need to be “flexible” in applying res judicata doctrine to zoning disputes, neither courts nor scholars have offered a coherent prescriptive or descriptive account for how that flexibility does or should operate.

This Article has two related objectives: to develop a normative theory explaining how finality principles should apply in the land use context and simultaneously to argue that existing case law, however inarticulately, reflects that normative theory. Part I begins by exploring the distinctive structure of zoning doctrine, which fits imperfectly with traditional categorization of decisions as legislative or judicial. Part II examines more generally the role of finality in legal decisionmaking. Part III demonstrates that, in light of the structure of zoning doctrine, traditional claim preclusion doctrine should have no place in zoning law. This Article argues, by contrast, that issue preclusion doctrine should and does operate to constrain zoning decisionmakers. The Article goes on to demonstrate that this framework explains the results, even if not the language, in the vast majority of zoning cases that raise finality issues.

Jim K.

Epstein on Judicial Takings in a Federalist System

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."

This article was published as part of a symposium on judicial takings that also included papers by Ilya Somin and Nestor Davidson.

Jim K.

Land Use at the Supreme Court, Part I

This month begins a term at the U.S. Supreme Court in which the Court will hear two important cases concerning land use. The cases turn on very different doctrinal issues. One concerns rights and remedies under the Administrative Procedure Act. The other involves an actual property issue, namely whether a state has title to a river bed arising out of application of the navigable waterway doctrine. In most ways, the cases could not be more different. Yet they are connected by one common theme. Both cases demonstrate the dangers—to landowners and governments alike—when a government entity is both a party interested in the outcome of a land use dispute and the authority charged with adjudicating the dispute.

The first case is Sackett v. EPA. According to their counsel, the Sacketts planned to build their dream home near (but not adjacent to) a lake in Idaho. They acquired the necessary local permits and received the assurance of the U.S. Army Corps of Engineers that no federal permits were required. They had begun preparations to build when EPA showed up, insisting that the lot was situated on wetlands (the putative wetland area is separated from the lake itself).

As commentators on both the Left and the Right have observed, the factual question whether the Sacketts’ land is part of nearby wetlands is contestable. But the Sacketts have no way of contesting EPA’s contention unless and until EPA seeks enforcement of an order against them in federal court; two lower federal courts ruled that federal law provides no mechanism for a pre-enforcement challenge. As the Sacketts’ counsel pointed out, this situation left the Sacketts with an “unenviable choice.” They could apply for a permit that they believe they are not required to obtain and pay the associated costs. Or they could expose themselves to an enforcement action and the associated fines, which could run over $30,000 per day. Either way, they would incur inordinate expense to build on a lot that they purchased for $23,000.

This Hobson’s choice for the Sacketts rendered EPA the de facto adjudicator of their rights. And had a public interest litigation group not come to their aid, the Sacketts would have been at the mercy of a federal administrative agency that served as investigator, prosecutor, judge, and jury. Because the Court has agreed to hear the Sacketts’ claim not under the Clean Water Act but under the broader Administrative Procedure Act, the implications of the Court’s ruling could reach far. Jonathan Adler has speculated, “While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund.”

The second case is PPL Montana LLC v. Montana. The certified question can excite only a Property professor.

Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present day recreational use, with the question “very liberally construed” in the State’s favor?

According to the pleadings, the case arose when the State of Montana decided to claim title in riverbeds that had long been used by a private landowner, namely a power company using the river to generate hydroelectricity. Montana became a state in 1889. Two years later, in 1891, a predecessor-in-title to the power company built a dam near Fort Benton, Montana on the Missouri River, apparently believing that this stretch of the river was not navigable, and that the State of Montana therefore had no title in it. More dams were built on the Missouri and Madison Rivers, and the State, no doubt benefiting from this land use, did not object. Indeed, the State participated in the licensing proceedings for some of the dams.

Then, in 2004, the State of Montana, piggybacking on a lawsuit filed by parents of Montana school children, claimed that it had owned title to the riverbeds all along because the contested stretches of river are navigable. The Montana Supreme Court ruled for the State and upheld a judgment of $41 million in back rent. 

In this case, the government actor advocating on behalf of the state—the Montana Attorney General—is distinct from the state courts that adjudicated the claim. But the central issue in the case turns on a disputed, mixed question of fact and law. And about this question the Montana state courts showed strikingly little curiosity. Despite 500 pages of expert testimony and exhibits disputing the State’s assertion of navigability, the Montana Supreme Court affirmed the trial court’s entry of summary judgment for the State. The Montana courts appear to have simply accepted the Montana Attorney General’s proposed findings.

It is now increasingly common for states and federal agencies to advocate for particular outcomes of private land use proposals. I intend to explore some of the implications of this trend at length in later posts. But in short, whatever its benefits, this advocacy entails significant costs. And these costs are not borne only by landowners. I will argue that the governmental authorities themselves pay a price, because they risk damaging their reputations as impartial ministers of law.

Adam MacLeod

Update: David Breemer of the Pacific Legal Foundation (PLF) comments below. As I should have noted, PLF is the public interest firm representing the Sacketts.

City of South Bend Enjoined by U.S. District Court from Transferring Land to Catholic HS

The South Bend Tribune reports that U.S. District Judge Robert Miller (NDIN) has granted a preliminary injunction sought by four local residents represented by the ACLU of Indiana. The plaintiffs object to the transfer of the former Family Dollar site, recently bought by the City for $1.2 M, to a local CDC that would turn it over to St. Joseph High School, a co-ed Catholic school which would use it for athletics and parking and had committed to accomodate requested public use for 10 years.  (FD: my two older children recently began attending St. Joseph High School here in South Bend, shortly after I began my new post here at Notre Dame.)  The local council had approved the acquisition and transfer on a 5-4 vote.

In the opinion, Judge Miller agrees with the plaintiffs that the transfer constitutes a direct subsidy to a religious institution in violation of the First Amendment's Establishment Clause.  The Court distinguished recent school voucher program precedent by emphasizing that the below-market transfer by the City is not part of a program with religion-neutral criteria.  To me, this point about the ad hoc nature of public-to-private land transfers makes the opinion an interesting land use case.  It raises the question:  Are religious institutions quarrantined from economic development land transfers even though (as the Court agrees) they are not from public benefits generally?    

Related to this point is the nature of the endorsement of (a?) religion.  With the qualification that I am not a First Amendment scholar, I did note that the Court found that the transfer violated the second prong of the Lemon test (you know, whether the action's primary effect is to advance/inhibit religion) Even though neither the City nor the plaintiffs thought the issue determinative, the Court disagreed. The Court implied in its ruling that the proposed transfer sends a message to adherents and non-adherents that they are insiders and outsiders respectively.  Was that part-and-parcel of the Court's distinction between programmatic and ad hoc public subsidies?

I would be glad to hear from you. I will be following the developments with not-just-an-academic interest.

 

Jim K.

J.Kelly@nd.edu

2011 Conference on Litigating Regulatory Takings

John Echeverria (Vermont) sends along the announcement for the 14th annual Conference on Litigating Regulatory Takings Claims:

The 14th Edition of the Conference on Litigating Regulatory Takings Claims will be held this year on November 18 on the GULC campus in Washington, D.C. The conference will be co-sponsored by Vermont Law School and Georgetown University Law Center. Additional co-sponsors include: American Planning Association, Planning and Law Division; International Municipal Lawyers Association; Maryland Municipal League; National Association of Counties; National League of Cities; National State Attorneys General Program at Columbia Law School; U.S. Conference of Mayors, and Virginia Municipal League.

 

Speakers include: Mark Barron, J. Peter Byrne, David Callies, Martin R. Cohen,

Steven J. Eagle, John D. Echeverria, Mark Fenster, Denise G. Fjordbeck,

Alexandra B. Klass, Robert Meltz, Thomas W. Merrill, J. Michael Ponder,

Joseph L. Sax, Christopher Serkin, Daniel L. Siegel, Gregory M. Stein,

A. Daniel Tarlock, and William M. Treanor.

 

Looks like a great lineup once again.  For more information, the conference website is http://www.vermontlaw.edu/Takings2011/.

Matt Festa

Somin on Federalism and Property Rights

Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:

Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.

This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.

Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.

Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.

Matt Festa

Texas Supreme Court abates Severance v. Patterson

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

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

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

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

Is This The End?

Find out after the jump!

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

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

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

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

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

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

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

Matt Festa

Mulvaney's take on SCOTUS cert grant for PPL Montana v. State of Montana

I'm excited to post this guest blog from Professor Timothy Mulvaney, a land use prof from Texas Wesleyan School of Law in Fort Worth.  He's written extensively about judicial takings and exactions, and proivdes this timely and interesting post about yesterday's U.S. Supreme Court cert grant.  This case has been somewhat under the radar, but could end up being very important.  Thanks to Tim for the early and interesting analysis-- Matt Festa

Thank you very much for the opportunity to guest blog during this important week at the U.S. Supreme Court.

It is understandable that today’s headlines regarding the Supreme Court are devoted to several landmark decisions released yesterday, including rulings rejecting class certification in Wal-Mart v. Dukes and holding that the Clean Air Act displaces federal common law nuisance claims when it comes to greenhouse gas emissions in AEP v. Connecticut.  But in addition to these major holdings, the Supreme Court also took the noteworthy step of granting certiorari in PPL Montana, LLC v. State of Montana.  This case could have important implications for property, land use, natural resources, and environmental law.

In 2010, the Montana Supreme Court held that the State of Montana owns the beds of the Missouri, Madison, and Clarke Fork Rivers as an incident of state sovereignty. This ruling confirmed that PPL Montana is required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power.  PPL Montana claims that the riverbeds are private property, such that no rent to (or approval from) the State is necessary to conduct their operations.  To determine whether these rivers are held in trust by the State or rather in private ownership turns on whether the rivers are considered “navigable.”  The U.S. Supreme Court has defined waterways as “navigable” in the context of such a title dispute if the rivers were “used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel [were] or may be conducted” when the relevant State was admitted to the Union.

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. 

Yet there may be another issue lurking under the surface.  In seeking the Supreme Court’s review, PPL Montana and several of its amici sought to frame the Montana Supreme Court’s decision as a “judicial taking.” You will recall that in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court left the existence and scope of a judicial takings doctrine in a state of flux.  To cull from a law review article I authored on Stop the Beach this past winter:

A four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an “established” property right “no longer exists” may amount to an unconstitutional taking.  … Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed.  … Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” [Justice Stevens recused himself.]

In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, “[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.”  In support of PPL Montana’s petition, the Cato Institute joined the Montana Farm Bureau Federation in contending that the Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause, calling the Court’s ruling a “thinly-disguised judicial taking.”  For its part, the State of Montana maintained that nothing in the Montana Supreme Court’s decision contravened established property law, for PPL Montana’s “deeds and pleadings show it has no riverbed property to take” and the State “has claimed and received compensation for uses of navigable riverbeds for decades.” 

It remains to be seen whether the U.S. Supreme Court will address the judicial takings question when it takes up PPL Montana, LLC v. State of Montana in the coming year.  The certiorari stage documents are available here.  It is anticipated that the parties and their amici will brief the case this summer, with oral argument likely to occur in the winter.  Stay tuned to the Land Use Prof Blog for updated information.

Timothy Mulvaney

Somin on Stop the Beach and Judicial Takings

Ilya Somin (George Mason) has posted another timely article, Stop the Beach Renourishment and the Problem of Judicial Takings, forthcoming in Vol. 6 of the Duke Journal of Constitutional Law & Public Policy (2011).  The abstract:

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection was the Supreme Court’s first effort to address the problem of judicial takings: whether or not a judicial decision can ever qualify as a taking that requires compensation under the Takings Clause of the Fifth Amendment. Unfortunately, a divided Court failed to resolve the issue, which is now left for future cases.

This article argues that judicial takings do exist. I also explain why this conclusion would not require federal courts to take on any unusual administrative burdens. Part II briefly discusses the background of Stop the Beach. In Part III, I defend Justice Antonin Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking.” This principle follows logically from both the text and the original meaning of the Fifth Amendment. Various rationales for distinguishing judicial takings from other takings do not overturn this simple but sound conclusion.

Part IV addresses claims that enforcing a takings doctrine would lead federal courts into severe practical difficulties. A judicial takings doctrine would not require legal principles significantly different from or more complicated than other takings claims. Justice Stephen Breyer and others are wrong to suggest that such a doctrine would “invite a host of federal takings claims” that federal judges would be unable to handle.

Matt Festa