Land Use Prof Blog

NYC Rent Control Laws at Supreme Court?

The case of Harmon v. Markus, currently before the Supreme Court on a petition for cert, is starting to draw some attention.  Among others, George Will devoted his latest column to urging the Court to hear the case in Supreme Court should take on New York City's Rent Control Laws:

James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.

The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.

This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of the city’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.

This is a tough issue on the equities; rent-control laws (most prominently in New York) are of incredible help to some people and have a very negative effect on others, not only developers, but also (perhaps most especially) would-be entrants-- which is why the politics on this issue are more difficult to track.  Rent control favoring current (and often, inherited) tenants is getting increasingly hard to justify on policy grounds, but as a matter of property law, is it unconstitutional?  Harder to prove on legal doctrine.

Richard Epstein has a podcast on the case for the Federalist Society.  I've been looking for commentaries on the other side but haven't found quite as much; let me know.

Matt Festa

Federal Eminent Domain Reform?

Ilya Somin (George Mason) has a post on the Volokh Conspiracy called Another Chance at Federal Eminent Domain Reform:

In the aftermath of the Supreme Court’s controversial Kelo decision, which allowed the condemnation of private property for economic development, some 44 states have passed eminent domain reform laws. Although many of those laws are likely to be ineffective, overall a good deal of progress has been made at the state level in curbing abusive condemnations, including by state courts enforcing the property rights provisions of their state constitutions.

Unfortunately, very little has been achieved at the federal level during that time. On the third anniversary of Kelo in 2008, I summed up federal reform efforts as follows:

…

…

[Insert sound of crickets chirping, grass growing, and paint drying].

Somin cites an op-ed by Christina Walsh of the Institute of Justice:

A bipartisan bill, H.R. 1433, making its way through the House would strip a city of federal economic development funding for two years if the city takes private property to give to someone else for their private use. Cities that want to keep their funding will have to be more circumspect in using eminent domain.

This bill undoubtedly will pass the House as it did in 2005, and likely will get stalled in the Senate Judiciary Committee, headed by Sen. Patrick J. Leahy, Vermont Democrat, where it has gone to die in years past.

It'll be interesting to see if this goes anywhere, but I suspect there's probably too much political noise this year.

Matt Festa

Fenster on Failed Exactions

Mark Fenster (Florida) has posted Failed Exactions, 36 Vermont Law Review No. 3 (2012).  The abstract:

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand made of a land owner by a government agency for land or money as a condition on development could and perhaps should trigger rigorous judicial review.

Both before and after Justice Scalia’s ruminations, which only Justices Kennedy and Thomas joined, courts have struggled with this question. As the litigation that ended with the Florida Supreme Court decision in Koontz v. St. Johns Water Management District (2011) reveals, judicial efforts to put the unruly peg of an unenforced condition into the narrowly defined categories of regulatory takings creates an excess of confusion. The essay identifies the doctrinal, remedial, procedural, and consequential dangers of any effort to apply heightened federal constitutional scrutiny to failed exactions.

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

Upcoming Oral Argument in PPL Montana, Inc. v. Montana

On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana.  Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:

On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.

That's enough to get me excited (seriously).  Go read the rest of Prof. Merrill's informative analysis.  (h/t to our friends at Property Prof Blog for the link).

And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.

Should be very interesting.  Stay tuned.

Matt Festa

Takings Jurisprudence, NIMBYS, and Scalia's Hypothetical Highway

After slogging through the Mahon and Penn Central cases (booorrring), it's always a relief to start talking about Lucas v. South Carolina Coastal Council.  The reason is simple: Justice Scalia knows how to keep us entertained.  In particular, Scalia loves to get sassy in his footnotes.  I'm sure readers have their favorites, but one of mine is footnote 8 of the Lucas opinion, which in addition to being enjoyable, is also very illuminating.  I spend about 20 minutes of class time discussing this footnote and its implications for both takings law specifically and land use law more generally, including the intractable NIMBY problem. 

The basic holding of Lucas is that a state regulation that deprives property of all economic value (i.e., a "total wipeout") is a per se taking, subject to a few caveats and exceptions that I'm not going to get into here.  Footnote 8 takes on Justice Stevens's argument, in dissent, that the "total wipeout" rule is arbitrary because the landowner who suffers a 95% wipeout gets no compensation while the landowner who suffers a 100% wipeout gets 100% compensation.  Scalia's response: that result "is no more strange than the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value  by the highway (who recovers nothing).  Takings law is full of these 'all-or-nothing' situations."  To illustrate this hypothetical, I draw the following picture on the board:

 I then ask my students the question left unanswered by this hypo: why does Owner "A," whose land is taken for the highway, get full compensation, whereas Owner "B", whose land is substantially devalued by the siting of a highway adjacent to his home, get nothing? 

The doctrinal answer is reasonably clear: A has suffered a physical occupation, which is a per se taking under Loretto, whereas B has not, and thus can only bring a takings claim under the Penn Central balancing test.  B is not likely to win under that test, as the government can articulate a substantial public interest in building a new highway and B has only a weak claim that the new highway interferes with any "distinct investment-backed expectations" since he, like the owners of Grand Central, can continue using his property in exactly the manner it has been used before: in my version of the hypo, as a single-family home.

But this then begs another question: why treat the physical occupation so differently from a siting decision with such severe impacts on adjacent landowners?  To answer this, note that my initial drawing is, of course, highly misleading. Externalities rarely involve two isolated landowners.  The following is a more accurate depiction:

The conceivable adverse impacts of the highway (noise, congestion, decreased property values) thus extend far beyond the immediately adjacent owners, even to households outside the frame of the picture depicted here.  If a court were to hold that the diminution in property value suffered by an adjacent landowner were sufficient standing alone to state a compensable takings claim, then any other landowner who could likewise establish that the highway resulted in some decrease in his or her property values would seemingly be entitled to compensation, even if the land in question were located at a considerable remove from the highway and suffered only a de minimis decrease in value.  The potential claimants could number in the dozens or even hundreds.  Courts would be flooded with litigation and be stuck with the unenviable task of determining whose injuries are sufficiently severe to warrant compensation, while legislatures would have to worry that every regulatory intervention would subject them to massive liability for damages. 

Limiting recovery to those who endured a physical occupation seemingly solves these problems.  The class is relatively smaller and more discrete, and there is a fair presumption that a physical occupation has caused some pretty serious injury to the landowner.  So courts are relieved of having to make fine distinctions and legislatures only have to worry about condeming land in the path of the proposed highway.  In other words, the distinction between the owner whose land is taken for a highway and the owner whose land is devalued by the highway has nothing to do with the divergent expectations or quantum of injury necessarily suffered by the two landowners, and everything to do with easing the administrative burden on the legislature and the courts.

This short hypothetical thus brings out a number of important points.  For one thing, it further emphasizes the point, made by the Court in the text of the Lucas opinion, that a "total wipeout" is essentially analogous to a physical occupation because of the presumed extent of the deprivation and the likelihood that a small class of discrete individuals is being singled out to bear a burden that benefits the public generally.  More broadly, the hypo signals the way in which Lucas is self-consciously undertaking a philosophical shift away from Penn Central.  Where Penn Central was comfortable with the indeterminacy of a balancing test for purposes of ensuring equitable treatment in individual cases, Lucas is more concerned with establishing a bright-line rule that provides certainty and eases administration, even if that rule is somewhat arbitrary and sacrifices fairness in some circumstances (the landowner whose land is taken for a highway is compensated in full, whereas his neighbor gets nothing for a 95% diminution in property value). 

This hypo also illustrates the extent to which takings law -- and land use law generally -- favors developers and users of land as opposed to those with an interest in the non-use of land.  The Court's analogy between a total wipeout and a physical occupation elides something important -- in the latter, the landowner has suffered a loss of the right to exclude, that most essential stick in the bundle of rights we call property, whereas in the former, the landowner still has the right to exclude, but has lost the right to develop.  Scalia seems to be suggesting, therefore, that the right to develop is itself also an essential stick in the property rights bundle.  This is consistent with Scalia's approach in other takings cases, such as Nollan, which expresses a concern about legislatures extorting developers in exchange for the right to exercise their right to develop.  At the same time, the highway hypothetical makes clear that landowners with an interest in the non-use of neighboring land (i.e., NIMBYS) are not protected by takings law for all the reasons stated above.

NIMBYs could conceivably be protected against unwanted land use sitings, zoning changes, etc, by the Penn Central test.  In principle, NIMBYs could make a strong case that they have "distinct investment backed expectations" in maintaining the status quo: 1) homeowners purchase property priced at a certain value, and take out a mortgage to finance such purchase, in reliance upon existing zoning regulations and land use patterns, which are capitalized into home prices; 2) zoning regulations are specifically designed to induce such reliance in order to attract homeowners who will contribute to the tax base; 3) a change in zoning or other authorized land use change depresses home values, while the principal on the mortgage remains unchanged, thus seriously prejudicing homeowners. 

In reality, this argument has had little force.  In takings and other contexts, courts insist that homeowners have no "vested rights" in existing zoning.  Only developers, it seems, can have "distinct investment backed expectations."  (In the takings context, I recognize, this may be because the initial zoning regulation upon which homeowners relied has actually increased home values, so it can hardly be called a "taking" to simply take back part of what has been given.  But even if so, it would seem as though homeowners should have some state law cause of action for their expectations based on vested rights, NCU, or zoning estoppel).  There are, I think, three reasons why the law so favors developers.  First, as mentioned above, there is that problem of the administrative burden of dealing with innumerable NIMBY claims.  Second, there is the traditional Lockean preference for the productive use of land, which is of course a very scarce resource, as opposed to its non-use.  Finally, there may also be a public choice rationale at work here.  As William Fischel and others claim, NIMBY homeowners tend to be the dominant faction in most municipalities, while developers are reduced to the status of supplicants.  If that claim is true, then it is perfectly sensible that courts would favor the interests of politically disadvantaged developers while leaving NIMBYs to the political process where they are typically very successful. 

This public choice rationale, however, raises some questions.  The assumption that NIMBYs are all-powerful and developers powerless has been forcefully challenged, and the empirical evidence appears to show that, at least in larger municipalities, developers are quite powerful.  Another question, with which I close this long post, is of the "chicken-or-the-egg" variety.  Do courts favor developers because homeowners are disproportionately powerful in local politics, or are homeowners disproportionately powerful because the absence of a legal remedy for their grievances gives them a strong incentive to be politically active?  As I mentioned above, the "expectations" inquiry is circular because courts do not only respond to expectations, but also shape them.  Is it possible that the reason angry mobs of NIMBYs pack planning board meetings to oppose zoning changes, and the reason they perceive the deck to be stacked against them despite their power in the political process, is because the courts have traditionally favored the claims of developers and told NIMBYs to seek relief elsewhere?

 

Ken Stahl 

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.

Brooke Shields as Susette Kelo

Coming to the small screen. From the Hartford Courant: Brooke Shields To Star In Movie Based On New London Eminent Domain Case; Author Jeff Benedict Announces Deal On His Blog

"Little Pink House: A True Story of Defiance and Courage," a book written in 2009 by Jeff Benedict about the Fort Trumbull eminent domain decision in New London, is being made into a Lifetime TV movie starring Brooke Shields as the decision's most prominent opponent, Susette Kelo, according to an announcement made Friday on the author's blog, http://www.jeffbenedict.com.

Rick Woolf, Benedict's editor at Grand Central Publishing, confirmed the report. "We're thrilled that this is going to be a movie on Lifetime," Woolf said. "Susette is a folk hero and Jeff has done a tremendous job telling the story."

Wonder if they'll get John Cougar Mellencamp's permission to use "Pink Houses" for the soundtrack. Thanks to Jason Kercheval for the pointer.

Matt Festa

New Eminent Domain Rules take effect in Texas

Since Justice Stevens told the states in Kelo v. City of New London (2005) that they were free to provide additional eminent domain restrictions through state law, policy groups and lawmakers in Texas have been trying to take him up. There were a few small measures to come through the past three (biennial) legislative sessions, but nothing too meaty. Governor Rick Perry even vetoed an eminent domain reform bill in 2007. But this spring after an "emergency" session, Gov. Perry signed Senate Bill 18--"An act relating to the use of eminent domain authority." And today, eminent domain reform became law in Texas.

September 1, 2001 is the day that dozens of laws passed in the spring 2011 legislative session take effect. The eminent domain reform--which is now codified in the Property Code, the Local Government Code, and various other statutes--basically makes it harder for entities to exercise eminent domain, and gives landowners more procedural protections:

• It requires that eminent domain can only be exercised for "public use," and replaces all statutory references (apparently there were many!) to "public purpose." "Public use" is still undefined, so while the legislature's intent is to restrict economic development and other types of takings, this one will probably end up in the courts.
• It adds public hearing and notice requirements and voting mandates to any use of eminent domain authority; it also adds certain requirements for bona fide written offers to purchase.
• It requires all public or private entities who think they have eminent domain power to submit a letter to the state comptroller for review by the legislature.
• It gives landowners additional statutory rights to repurchase property not actually used for the "public use."

We'll have to see if this law has substantive effects on the use of eminent domain, but at minimum it seems to provide some procedural protections. Yesterday at my daughter's soccer practice--i.e., the last day before the new law took effect--one of the other parents told me that his firm filed hundreds of lawsuits that day, related to ongoing projects. So at least there will be a lot of work for the lawyers!

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

Supreme Court News

It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out.  Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term. 

Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."

Also, Wal-Mart Stores, Inc. v. Dukes et al.  This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field.  The Wal-Mart Wars involve a distillation of many of the major land use issues in current events.  I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher.  Thanks to Troy Covington for the pointer.

In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case.  We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!). 

Matt Festa

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

Byrne on Stopping Stop the Beach

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

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

Matt Festa

Gardner on U.S. Wetland Law, Policy, and Politics

Royal C. Gardner (Stetson) has posted Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics.  It is the introduction to his new book of the same name from Island Press (2011).  The abstract:

This paper is the table of contents and introduction to Royal C. Gardner, Lawyers, Swamps, and Money: U.S. Wetland Law, Policy, and Politics (Island Press 2011). The book is an accessible guide to the complex set of laws governing America's wetlands. After explaining the importance of these critical natural areas, the book examines the evolution of federal law, principally the Clean Water Act, designed to protect them.

Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:

the geographic scope and activities covered by the Clean Water Act; the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency; the goal of no net loss of wetlands; the role of entrepreneurial wetland mitigation banking; the tension between wetland mitigation bankers and in-lieu fee mitigation programs; enforcement issues; and wetland regulation and private property rights.

The book concludes with policy recommendations to make wetlands law more effective.

Looks like a new key resource for anyone intersted in wetlands law.

Matt Festa

Penalver & Strahilevitz on Judicial Takings or Due Process?

Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process?  The abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.

Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.

Looks like a very important paper!

Matt Festa

Happy St. Patrick's Day 2011

[This is a reprise of last year's St. Pat's post, plus a picture from 2011--MJF]

Now it's time to try and make a land use-related post about St. Patrick's Day.  First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland.  If that isn't an awesome land use regulatory feat, then nothing is!     

St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries.  Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land.  Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.

St. Patrick's Day has spread throughout the Irish diaspora worldwide.  In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday.  Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities.  Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants).  Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues.  After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century.  My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics.  When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream. 

In the last few decades, St. Patrick's Day has continued to influence American land use issues.  Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion.  [ancillary question: is being "green" a good thing, in this sense?]  In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades.  The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).  Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?). 

St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too.  So hoist a green beer and celebrate.  [And in 2011, Jim and I are hoping that the luck of the Irish works all the way to Houston for the Final Four!]

Matt O'Festa

SCOTUS decides CSX Transportation v. Alabama Dept. of Revenue

The U.S. Supreme Court has issued its opinion in the case CSX TRANSPORTATION, INC. v. ALABAMA DEPARTMENT OF REVENUE et al., No. 09-520.  The opinion deals with issues in state & local government law, tax, commerce, and transportation policy, and it may be of interest to folks interested in land use.  From the Syllabus:

Petitioner (CSX) is an interstate rail carrier that operates, and pays taxes, in Alabama. The State imposes sales and use taxes on railroads when they purchase or consume diesel fuel, but exempts their main competitors--interstate motor and water carriers. CSX sued respondents, the Alabama Department of Revenue and its Commissioner (Alabama), claiming that this tax scheme discriminates against railroads in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act or Act), which bars four forms of discriminatory taxation, 49 U. S. C. §11501(b). Three of the delineated prohibitions deal with property taxes, §§11501(b)(1)-(3), and the fourth is a catch-all provision that forbids a State to "[i]mpose another tax that discriminates against a rail carrier," §11501(b)(4). The District Court dismissed CSX's suit as not cognizable under the 4-R Act on the basis of this Court's decision in Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, and the Eleventh Circuit affirmed.

Held: CSX may challenge Alabama's sales and use taxes under §11501(b)(4).

I'm posting more from the Syllabus after the jump.  Here's the interesting voting lineup:

Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, Alito, and Sotomayor, JJ., joined. Thomas, J., filed a dissenting opinion, in which Ginsburg, J., joined.

Matt Festa

Held: CSX may challenge Alabama's sales and use taxes under §11501(b)(4). Pp. 5-19.

     (a) CSX is challenging "another tax" within subsection (b)(4)'s plain meaning. The Act does not define "tax." Thus, this Court looks to the word's ordinary definition, which is expansive. A State seeking to raise revenue may choose among multiple forms of taxation on property, income, transactions, or activities. "[A]nother tax" is thus best understood to encompass any tax a State might impose, on any asset or transaction, except the property taxes already addressed in subsections (b)(1)-(3). There is no reason to interpret subsection (b)(4) as applying only to the gross-receipts taxes that some States imposed in lieu of property taxes at the time of the Act's passage. Moreover, CSX's complaint, contrary to the Eleventh Circuit's apparent view, does protest Alabama's imposition of taxes on its fuel. The exemptions the State has given may play a central role in CSX's argument, but the complaint's essential subject remains the taxes imposed.

     The key question thus becomes whether a tax might be said to "discriminate" against a railroad under subsection (b)(4) where the State has granted exemptions from the tax to other entities (here, the railroad's competitors). Because the statute does not define "discriminates," the Court again looks to the term's ordinary meaning, which is to fail to treat all persons equally when no reasonable distinction can be found between those favored and those not favored. To charge one group of taxpayers a 2% rate and another group a 4% rate, if the groups are the same in all relevant respects, is to discriminate against the latter. That discrimination continues if the favored group's rate goes down to 0%, which is all an exemption is. To say that such a tax does not "discriminate" is to adopt a definition at odds with the word's natural meaning. This Court has repeatedly recognized that tax schemes with exemptions may be discriminatory. See, e.g., Davis v. Michigan Department of Treasury, 489 U. S. 803. And even Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, on which the Eleventh Circuit heavily relied in dismissing CSX's suit, made clear that tax exemptions "could be a variant of tax discrimination." Id., at 343. In addition, the statute's prohibition of discrimination applies regardless whether the favored entities are interstate or local. The distinctions drawn in the statute are not between interstate and local actors, as Alabama suggests, but between railroads and all other actors, whether interstate or local. Pp. 5-10.

     (b) ACF Industries does not require a different result. There, the Court held that railroads could not contest property tax exemptions under subsection (b)(4), reasoning that it would be illogical to permit such a challenge when subsections (b)(1)-(3)--the §11501 provisions specifically addressing property taxes--permitted States to grant property tax exemptions. Such a reading would "subvert the statutory plan" and "contravene the 'elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.' " 510 U. S., at 340. Contrary to Alabama's argument, this structural analysis does not apply here. Subsections (b)(1)-(3) specifically allow property tax exemptions, but neither they nor any other provision of the Act speaks to non-property exemptions like those at issue here. Because Congress has expressed no intent to "allo[w] the States to grant" non-property exemptions, id., at 343, reading subsection (b)(4) to encompass them poses no danger of "nullify[ing]" a congressional policy choice or otherwise "subverting the statutory plan," id., at 340, 343. Alabama's other efforts to borrow from ACF Industries' analysis similarly fail. Also unavailing is Alabama's argument that, even if ACF Industries' reasoning is limited to property tax exemptions, its holding must extend to non-property tax exemptions in order to prevent inconsistent or anomalous results in the treatment of property and non-property taxes. Pp. 11-18.

350 Fed. Appx. 318, reversed and remanded.

8th Annual Brigham-Kanner Property Rights Conference-October 2011 in Beijing

William & Mary Law School has announced that the 2011 Brigham-Kanner Prize will be awarded to Justice Sandra Day O'Connor at the Eighth Annual Brigham-Kanner Property Rights Conference, which will be held Oct. 14 & 15, 2011 in Beijing, China.  Per W&M's website, "the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights."  Past honorees include Frank Michelman, Richard Epstein, Peggy Radin, Bob Ellickson and Carol Rose. 

Jim K.

Connecticut vs. American Power

Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power.  Following is a synopsis from the Climate Change and Clean Technology Blog.

On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).

This is a case to watch out for during this Supreme Court term.

Read more here.

Jamie Baker Roskie

Dolan on the Salazar cross, historic preservation, and federal land transfers

Mary Jean Dolan (John Marshall-Chicago) has posted P.S. Untold Stories and the Cross National Monument.  We've mentioned the land use aspects of the Salazar decision before.  Dolan's abstract:

This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.” 

Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.

Matt Festa