Friday, February 16, 2007
Erin Ryan (William & Mary) has posted Palazzolo, the Public Trust, and the Property Owner's Reasonable Expectations: Takings and the South Carolina Marsh Island Bridge Debate on SSRN. Here's the abstract:
South Carolina recently promulgated new guidelines regulating the State's consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina's formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the aftermath of a key Supreme Court takings decision, Palazzolo v. Rhode Island, in which the public trust doctrine made a late-breaking appearance on remand.
After exploring the takings-related anxiety embedded in the South Carolina bridge controversy, this essay reviews the Palazzolo saga through its ultimate disposition on remand, and analyzes its significance not only for the marsh island bridge debate but for the broader array of land use controversies that involve wetlands, tidelands, and other submerged lands. Rhode Island's successful reliance on the public trust doctrine in defending the Palazzolo claim on remand – bolstered by a related analysis in McQueen v. South Carolina Coastal Council – suggests that regulatory takings claims brought by disappointed bridge permit seekers are unlikely to succeed. Both decisions hold that the public trust doctrine forms part of the background principles of state law that inform private property owners' reasonable expectations about the potential uses of submerged lands. Because the property owner's "reasonable expectations" about development prospects are a central consideration in the legal analysis of a regulatory takings claim, recognition that the public trust doctrine limits their formation regarding submerged lands strengthens the position of the state in this and many other land use controversies that pit environmental protection of wetlands and tidelands against opposing private property interests.
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