PropertyProf Blog

Justice Alito and Property Rights

Lyle Denniston at Scotusblog notes that Justice Alito took the unusual step of noting that he would have voted to grant cert in Goldstein v. Pataki, the public use case involving the Atlantic Yards development in Brooklyn.  As Ilya Somin comments, this could be a way of signaling disagreement with Kelo.  Of course, Justice Alito replaced Justice O'Connor, who dissented in Kelo, and the five-member majority in Kelo is still on the Court.

Ben Barros

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Should Homes Be Given Extra Protection From Eminent Domain?

I was facing a grading deadline and missed this when it came out, but Eduardo Penalver and Ilya Somin had an interesting blogospheric discussion about whether homes should be given additional protection from eminent domain relative to other types of property.  Ilya's last post on the subject contains links to the earlier portions.  I have supported this sort of disparate treatment before (here and here), as have a number of other property scholars.  It is interesting to see some real-world application.

Ben Barros

Photo from Wikicommons

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Third Anniversary of Kelo

Duly noted by Ilya Somin at the VC.  Ilya argues, among other things, that Kelo was an improvement on Berman and Midkiff.

Ben Barros

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Parent on Takings Constraints

Colin P. Parent (DLA Piper) has posted Takings Constraints: Mechanisms to Minimize the Uncompensated Increment and Limit the Government's Power to Take Property on SSRN.  Here's the abstract:

The breadth of takings scholarship has left useful ideas diluted amongst an ocean of theories. This article addresses that problem by creating a clear and useful taxonomy for takings constraints by which takings theories can be categorized and analyzed. These new categories are (1) compensatory restraints on how much government must compensate property owners, (2) categorical constraints which absolutely limit which property can be taken and for what purposes, and (3) processes constraints which limit how property is condemned.

Furthermore, this article suggests that compensatory restraints are appropriate to minimize economic harms, and categorical constraints are only appropriate to minimize the destruction of property owners' autonomy. This new theory is only possible with the use of the new taxonomy to describe takings constraints.

This paper does not attempt to argue which interests of property should be protected - a topic already developed in the scholarship. However, its new theory provides a framework for policymakers to apply when deciding what takings constraints to use when seeking to advance their substantive values in property, whatever those values may be.

Ben Barros

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Holdouts and Personal Values

Eduardo Penalver highlights a great story about a woman in Seattle who refused to sell out to private developers.  The story features a great holdout photo of the woman's home surrounded by new development.

Ben Barros

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GELPI Takings Conference Save-The-Date

I recently received this notice from GELPI:

On November 6-7, 2008, the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center and Stanford Law School’s Environmental and Natural Resources Law & Policy Program will host the 11th Annual Conference on Litigating Takings and Related Legal Challenges to Land Use and Environmental Regulation.

The conference, to be held at Stanford Law School in the San Francisco Bay area, will examine how the Takings Clause and related legal doctrines may undermine the public’s ability to address emerging environmental, public health, and growth management challenges.  A particular focus of this year’s conference will be the potential takings implications of public policy initiatives designed to mitigate and adapt to global warming.  The conference will also address recent legal developments in takings law and related fields, including the latest legal and policy fall out from the Supreme Court’s landmark decisions in Lingle v. Chevron USA and Kelo v. City of New London.  Another featured topic will be future prospects for property rights ballot measures along the lines of Propositions 98 and 99 in California and other states.

Conference faculty will include a mix of leading academic scholars and expert practitioners.  The proceedings of the conference will be published in the Stanford Environmental Law Journal.

Ben Barros

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Epstein on Kelo

Richard A. Epstein (Chicago) has posted Public Use in a Post-Kelo World on SSRN.  Here's the abstract:

The aftermath of Kelo gives rise to urgent land use issues, both theoretical and historical. On the former, I argue that the analysts should be aware of the close and positive connection between restrictive land use policies on the one hand and a willingness to condemn parcels for private development on the other. The inability to overcome local opposition with private development forces developers to get in essence, pre-acquisition approval through public condemnation. One way, therefore, to ease the pressure on public use is to retreat from aggressive land use regulation to a scheme that more closely approximates that of the common law rules on nuisance and restrictive covenants, which will be hard to achieve since local systems of voting give little weight to the interest of potential buyers who live outside the governance area. Historically, this opportunity was lost when the United States Supreme Court in Berman v. Parker distanced itself from the thoughtful decision of Judge Prettyman below in Schneider v. District of Columbia, which sought to cabin in the ends for which the eminent domain power could be used, even if it gave too much deference to local governments on any means/ends connections.

Epstein graciously refers to my essay on the Berman and Midkiff conference notes, which discussed Judge Prettyman's opinion in Schneider.  In this essay, Epstein develops an interesting substantive defense of Prettyman's position.  Given the author, obviously a must-read for anyone interested in public use issues.

Ben Barros

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McLaughlin on Eminent Domain, Open Space, and Electric Transmission Corridors

Nancy A. McLaughlin (Utah) has posted Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not) on SSRN. Here's the abstract:

The Energy Policy Act of 2005 authorizes the Secretary of Energy to "designate any geographic area experiencing electric energy transmission capacity constraints or congestion that adversely affects consumers as a national interest electric transmission corridor." In 2007, the Secretary formally designated the Southwest Area National Corridor (which includes counties in California and Arizona) and the Mid-Atlantic Area National Corridor (which includes counties in Ohio, West Virginia, Pennsylvania, New York, Maryland, and Virginia, as well as all of New Jersey, Delaware, and the District of Columbia). Once the Secretary designates a National Corridor, the Federal Energy Regulatory Commission can issue permits to public utilities authorizing them to exercise the power of eminent domain to acquire rights-of-way to construct electric transmission facilities in the corridor. Questions have been raised in Virginia regarding the extent to which public utilities can exercise this power of eminent domain to condemn land encumbered by conservation easements. Some worry that land encumbered by conservation easements, which by definition is largely undeveloped, will be a natural target for condemnation because of the political difficulties associated with locating steel towers supporting high voltage transmission lines in populated areas. Others believe that encumbering land with a conservation easement can insulate the land from condemnation. This article discusses the extent to which public utilities may or may not have the right under either federal or Virginia law to condemn conservation easements.

Ben Barros

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McLaughlin on Condeming Conservation Easements

Nancy A. McLaughlin (Utah) has posted Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation on SSRN. Here's the abstract:

The public is investing substantial financial and other resources in conservation easements and the conservation and historic values they protect. Yet little has been written about who should be entitled to what when land encumbered by a conservation easement is condemned in whole or in part. This Article explores these issues. It first demonstrates that conservation easements should constitute a compensable form of property for purposes of the Takings Clause of the Fifth Amendment. Then, using well-settled eminent domain valuation principles, it describes how just compensation should be calculated and apportioned between the holder of a conservation easement and the owner of the encumbered land upon the taking of all or any portion of the encumbered land. The Article explains that paying the economic value attributable to a conservation easement upon its condemnation to the owner of the encumbered land would confer an undue windfall benefit on the owner at the public's expense. The Article also explains that allowing condemning authorities to take easement-encumbered land without paying for the easement would have the perverse and counterproductive effect of making land protected for its conservation or historic values cheaper to condemn than similar unprotected land.

Ben Barros

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GELPI Report on Takings Legislation

The Georgetown Environmental Law and Policy Institute has released a report on the impact of takings legislation.  Here is a summary of the findings:

The major findings of the report are that the takings agenda has undermined community protections by forcing a roll back of existing legal rules and/or by exerting a chilling effect on new legislative activity, special interests such as developers and timber companies have been the primary beneficiaries of takings legislation, the takings laws have fomented and exacerbated neighbor-neighbor conflicts over land use issues, the takings agenda has conferred large windfalls on certain owners either in the form of taxpayer-funded awards or special exemptions from the rules that apply to the rest of the community, and the property rights agenda has undermined the democratic process.

Ben Barros

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Heller and Hills on Land Assembly Districts

Dan Kelly's response (see post below) reminded me that the Harvard Law Review has posted Land Assembly Districts, by Michael Heller (Columbia) and Rick Hills (NYU), online.  Here's the abstract:

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or “LADs.” This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: when the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let’s try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Ben Barros

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Two by Kelly

Daniel B. Kelly (Olin Fellow, Yale) has posted two pieces on eminent domain on SSRN.  They are:

The Limitations of Majoritarian Land Assembly 

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, as well as a potential bilateral monopoly problem, both of which may result in fewer desirable assemblies. There is thus no reason to believe a priori that LADs are superior to either eminent domain or private assembly. Finally, because LADs require courts to delineate the circumstances in which eminent domain would continue to be permitted, LADs may not even offer an administrability advantage. Indeed, LADs ultimately may rely on judicial expertise to an extent the authors themselves believe is problematic. Still, LADs constitute a creative proposal worthy of consideration.

Pretextual Takings

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a particular private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motivations, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between the government and private parties. When the state lacks information regarding the optimal site for an assembly, the state may need to rely on a private party to identify, as well as develop, a particular site. However, when the state itself possesses information regarding the site, precondemnation private involvement, as well as post-condemnation involvement by a preferred private party, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that, based on these differences, a burden-shifting framework, analogous to Title VII's test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

Ben Barros

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Semeraro on Sweet Land of Property

Steven Semeraro (Thomas Jefferson) has posted Sweet Land of Property?: The History, Symbols, Rhetoric, and Theory Behind the Ordering of the Rights to Liberty and Property in the Constitutional Lexicon on SSRN.  Here's the abstract:

This article critiques the property rights movement‘s position that courts should scrutinize property regulation to the same extent that they now scrutinize fundamental liberty-based claims. At its root, the debate over the proper degree of scrutiny for property rights claims is a debate about the appropriate scope of a society‘s freedom to organize and reshape itself in search of a greater good. Strict scrutiny of regulation truncates the debate, demanding that we privilege what has been to guard against the hazards of the unknown. Greater judicial deference, by contrast, frees us to seek, through governmental actors pursuing the public interest, a better, more fulfilling society at the risk that we will fail.

Reviewing an array of arguments based on (1) intellectual and social history, (2) the rhetoric of modern jurisprudence, and (3) property law theory, this article shows that the movement‘s adherents have failed to make their case for strict scrutiny of property regulation. This article‘s critical assessment of the property rights movement cannot establish that judicial deference to legislative judgment in property rights cases is necessarily morally superior to more probing scrutiny. That the property rights movement has made virtually no progress more than two decades after it began, however, casts some measure of doubt on the possibility that it ever will.

Ben Barros

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Gardner on International Application of Regulatory Takings

Royal C. Gardner (Stetson) has posted Taking the Principle of Just Compensation Abroad: Private Property Rights, National Sovereignty, and the Cost of Environmental Protection on SSRN. Here's the abstract:

Part I of this article provides a brief background of the United States takings jurisprudence. It examines how the Fifth Amendment protects private property rights and when environmental regulation implicates the payment of just compensation. Part II reviews the methods by which the United States government seeks to protect the environment without infringing on private property rights, focusing on financial incentives and disincentives. Part III compares the many parallels between private property rights and national sovereignty. Part IV explores how lessons derived from the United States experience in balancing private property rights and environmental concerns are relevant to international environmental issues. It focuses on how the United States seeks to influence the environmental policy of other states through financial incentives and disincentives in multilateral and bilateral contexts. Concluding that such conditional assistance is consistent with the domestic principle of just compensation, the article offers a framework for when such assistance is justified.

Ben Barros

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McCall on North Carolina Eminent Domain

Jamie R. McCall (UNC-Chapel Hill School of Gov't) has posted The Use of Eminent Domain by North Carolina Counties: Historical Patterns, Current Trends, and Decision Variables on SSRN.  Here's the abstract:

A 2006 report by the Government Accountability Office states that little data or research exists on the use of eminent domain by state or local governments. In an effort to help fill this knowledge gap, this capstone examines how eminent domain is used and what variables are important in the execution of eminent domain action by North Carolina county governments. This analysis uses data from a survey of county managers about eminent domain policies and practices. The data show a wide variation of how counties utilize eminent domain, but also suggest that the bulk of eminent domain action is for public infrastructure and public facilities. A wide variety of factors influence county government decisions to condemn property, and the presence of certain structures like religious institutions discourage counties from using eminent domain. Additionally, some counties also engage in alternative strategies before deciding to use their eminent domain authority.

Ben Barros

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Power on Constitutional Property

Garrett Power (Univ. of Maryland) has posted Constitutional Property' a Chronicle of the Construction of a Concept on SSRN.  Here's the abstract:

In the American constitutional system the sovereign has the power to enact "regulations which are necessary to the common good and general welfare." But the Fifth Amendment to the United States Constitution proscribes that: "No person shall be. . .deprived of. . .property, without due process of law; nor shall private property be taken for public use, without just compensation." And the question of whether a sovereign regulation has "taken" private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles the leading cases and finds that the Court's present interpretation of "regulatory takings" sits upon a shaky foundation of split decisions; the Court's construction of the "constitutional property" remains a work in progress.

It finds today's Supreme Court is fundamentally split into two blocs. This "Great Divide" is sometimes attributed to a difference in judicial philosophy. Those in the Court's conservative wing are typically described as practitioners of "judicial restraint." Those in the Court's liberal wing are said to be "judicial activists" who are intent on reconstructing the Constitution's language to meet the exigencies of the times.

The Court's "constitutional property" jurisprudence belies this stereotype. Its right wing is seeking to define the Takings Clause, beyond its original meaning, so as to discourage government activity. Conversely the left wing is more than willing to give wide discretion to legislative bodies to impose regulations without paying compensation to disappointed property owners.

Ben Barros

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Eminent Domain's Impact on Minorities

David T. Beito (Univ. of Alabama) and Ilya Somin (George Mason) have an interesting op-ed on the subject in the Orlando Sentinel.

Ben Barros

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Garnett on Taking Without Touching

Nicole Stelle Garnett (Notre Dame) has posted 'No Taking Without a Touching?' Questions from an Armchair Originalist on SSRN.  Here's the abstract:

This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the "no taking without a touching" principle might have been answering different questions than the modern "regulatory takings" problem.

Ben Barros

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Eagle on Kelo, Directed Growth, and Municipal Industrial Policy

Steven J. Eagle (George Mason) has posted Kelo, Directed Growth, and Municipal Industrial Policy on SSRN.  Here's the abstract:

This article explores trends towards increased local government land use regulation to spur economic development and towards partnering with private redevelopers. It notes that while Kelo v. City of New London has intensified these trends, the use of condemnation for retransfer for private redevelopment endorsed by Kelo is only one tool by which local government advances what the author terms municipal industrial policy. While Kelo expresses confidence in the ability of courts to distinguish between permissible economic development takings primarily for public benefit and impermissible takings primarily for private benefit, the author maintains that any such distinction is illusory.

The article also explores how public choice considerations augur in favor of unnecessary and inefficient condemnations. Finally, it suggests some alternatives that would better effectuate urban redevelopment while avoiding unfair and inefficient exercises of eminent domain. There include greater recognition of fractional property interests, and facilitating owner participation in post-condemnation redevelopment. Other salutary alternatives are localizing neighborhood redevelopment control, and making blight redevelopment open and transparent by replacing condemnation with abatement and foreclosure.

Ben Barros

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Epstein on Didden

Richard Epstein has an opinion piece on Didden v. Port Chester and the general issue of public use.  HT:  Ilya Somin.

Ben Barros

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Morriss on State Responses to Kelo

Andrew P. Morriss (University of Illinois) has posted Symbol or Substance? An Empirical Assessment of State Responses to Kelo on SSRN.  Here's the abstract:

The Kelo decision provoked considerable legislative activity as 46 states adopted legislation on eminent domain in its aftermath. Only about half adopted restrictions that were more than symbolic, however. This paper examines those responses using a logistic regression analysis and finds that all else equal: (1) states where legislatures were more constrained by tax and expenditure limits were less likely to adopt substantive restrictions; (2) a larger number of Republicans in the state legislature made a state more likely to adopt a substantive restriction; (3) overall Republican strength (as measured by gubinatorial elections) made states less likely to adopt a substantive response, suggesting political competitiveness not ideology motivated action; (4) there was no evidence that measures of an electorate's overall ideology (with respect to environmental, liberal, or conservative causes) made a difference; (5) economically growing states were more likely to adopt substantive restrictions; and (6) greater degrees of inequality and larger African-American populations were not correlated with the type of response. Taken together, these results suggest a public choice model of legislative action, rather than an ideological one, with legislatures facing other constraints (e.g. TEL and slower growth) being less likely to give up valuable eminent domain powers and legislatures where adoption of real reform was less costly (faster growth) or more beneficial (more competitive political environments) more likely to do so.

Ben Barros

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New Book on Post-Kelo Eminent Domain

Today's mail brought my copy of Private Property, Community Development, and Eminent Domain, edited by Robin Paul Malloy.  The book contains essays by Tom Allen, Carol Brown, Eric Claeys, Rachel Godsil, Robin Malloy, Marc Pairier, David Simunovich, Jim Smith, and Michael Allen Wolf, and yours truly.  My contribution is my essay on the Berman and Midkiff conference notes.

Get your library to order a copy today!

Ben Barros

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Public Use Cert Petition

Over at Scotusblog, Lyle Denniston has a post on a cert petition to the Supreme Court presenting some post-Kelo public use issues.

Ben Barros

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Border Fence Eminent Domain Issues

A number of disputes have arisen in Texas about the use of eminent domain to take property surrunding the new border fence.  The judge on some of the cases recently ordered the government to negotiate over price with the property owners:

A federal judge has ruled that the government must first try to negotiate a price with a South Texas landowner before seizing her property for the border fence.

The ruling by U.S. District Judge Andrew Hanen late Friday came a month after federal prosecutors argued that immediate access to property was necessary to getting 370 miles of fencing built by December.

Under the ruling, the Department of Homeland Security must provide proof of bargaining with landowner Eloisa Tamez or conduct "good faith" negotiations with her by March 21.

I'm not sure one way or the other about whether the judge's order is justified under the applicable statute, but I've been a big fan of forcing the government to negotiate in good faith before using eminent domain.

Ben Barros

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Epstein at Prawfs

Richard Epstein is blogging at Prawfsblawg about his new book on takings.  Looks to be a very interesting conversation.  Check it out!

Ben Barros

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Lefcoe on Kelo and Blight

George Lefcoe (USC) has posted Redevelopment Takings after Kelo: What's Blight Got to Do with it? on SSRN.  Here's the abstract:

Cities large and small across the country are utilizing redevelopment powers to become land developers, transforming underutilized areas into desirable commercial and mixed use enclaves, improving the appearance of the city and shoring up sagging tax bases. In using their eminent domain powers to assist private redevelopers, local governments open themselves to Fifth Amendment claims that these projects aren't for public uses. After the U.S. Supreme Court opinion in Kelo v. City of New London, state and local government officials need not worry about federal courts declaring anytime soon that their economic redevelopment projects aren't a sufficient "public use" to justify condemning one person's property for another unless the taking can be proved nothing but a sham, a naked pretext for wresting land from one private owner for the exclusive benefit of another. For the usual run of redevelopment projects, the requisite public use can be found either because the taking eliminates blight or proceeds from a comprehensive plan for redevelopment.

This paper begins with a recap of the Kelo Court's attenuated endorsement of comprehensive planning as a way of determining whether a taking of unblighted property qualifies as a public use. Then, the paper sketches the varying ways that states have defined blight to limit the use of eminent domain for redevelopment. Blight prevention was a rationale invoked by supporters of the federal urban renewal program to secure judicial approval in the 1930s and 1940s. Those projects were quite different from most redevelopment projects undertaken after the abolition of the federal program in 1974 and the paper describes the main differences. The blight standard makes less sense under most current types of redevelopment than it did under the early federal renewal programs because blight eradication is rarely what today's redevelopment projects aim to achieve.

In the final section, the paper compares planned efforts at improving the quality of life in the community with "spot" redevelopment aimed solely at pumping up local tax receipts. Objectionable redevelopment enables a favored private firm (often a big retailer) to expand by acquiring land from unwilling neighboring owners. Kelo and some of the Kelo-inspired, state-enacted reforms, would lead courts to prohibit such takings. They don't serve a public use because they are meant simply to assist a particular private firm with its expansion plans in order to enhance the local tax base. The concluding section of the paper suggests how redevelopment agencies could reformulate their narrowly focused tax-motivated projects to comply with the new emphasis on redevelopment planning articulated in Kelo.

Ben Barros

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Goldstein v. Pataki

Ilya Somin has a good post at the VC about this interesting Second Circuit case.  An excerpt:

The US Court of Appeals for the Second Circuit recently decided Goldstein v. Pataki, a case challenging the condemnation of homes and other property in Brooklyn for the purpose of transferring them to developer Bruce Ratner, owner of the New Jersey Nets. Ratner plans to use the land to build a new stadium for the Nets, as well as other facilities, including some 2250 new housing units.

Not surprisingly, the Second Circuit upheld the condemnations. Under Kelo v. City of New London, they had very little choice. As I discuss in great detail in this article, Kelo mandates very broad judicial deference to the government in determining whether a condemnation is a genuine "public use" under the Fifth Amendment. Any potential benefit to the general public is sufficient, even if it is greatly outweighed by the project's cost.

The case nonetheless reveals some of the serious shortcomings of Kelo and related precedents. Goldstein v. Pataki is a correct application of Kelo; it is also an example of the sort of abuse that more robust judicial protection of property rights could prevent.

Ben Barros

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The Current State of Post-Kelo Eminent Domain Reform

Over at the VC, Ilya Somin has a post linking to the latest version of his paper on post-Kelo eminent domain reform.  The post also discusses the public's lack of knowledge about eminent domain issues:

In the SCG's 2007 Saint Index survey, conducted last August, only 21% of Americans could correctly answer a question about whether or not their states had enacted post-Kelo eminent domain reform, and only 13% could both correctly answer that question and a follow-up question about whether or not their state's reform law was likely to be effective in curbing economic development takings. Public ignorance about post-Kelo reform - like opposition to Kelo itself - cuts across racial, ethnic, gender, ideological, and partisan lines.

Ben Barros

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Barros on Hadacheck v. Sebastian

I've posted Hadacheck v. Sebastian on SSRN.  Here's the abstract:

This short encyclopedia entry discusses Hadacheck v. Sebastian and its relevance to contemporary regulatory takings jurisprudence. The entry describes the Hadacheck litigation and the treatment of Hadacheck in the Supreme Court's more recent regulatory takings cases. It notes four reasons why caution should be used before applying Hadacheck to contemporary regulatory takings issues: (1) the case is ambiguous about the diminution in value actually suffered by the plaintiff; (2) Hadacheck was decided before Pennsylvania Coal v. Mahon, which arguably marked a shift in regulatory takings law; (3) the Court's holding in Lucas v. South Carolina Coastal Council that a total diminution in value is a per se taking undercuts one possible reading of Hadacheck; and (4) that the Court's recent decision in Lingle v. Chevron suggests that the substantive due process analysis in early cases like Hadacheck should not be a part of the regulatory takings analysis.

This really is short, and might be of interest to those of you who teach Hadacheck as part of your takings unit.

Ben Barros

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Kent on Regulatory Takings

Michael B. Kent, Jr. (John Marshall - Atlanta) has posted Construing the Canon: An Exegesis of Regulatory Takings Jurisprudence after Lingle v. Chevron on SSRN. Here's the abstract:

Regulatory takings has long been considered one of the more confused areas of constitutional analysis. Since the Supreme Court's opinion in Penn Central Transportation Company v. City of New York, the law of regulatory takings has been characterized by varying analytical tests, competing theories, seemingly results-oriented decision-making, and a conflation with the law of substantive due process. In 2005, however, the Court made substantial strides in bringing some clarity to this area with its decision in Lingle v. Chevron U.S.A., Inc. In that case, the Court unanimously rejected the substantially advances test, demonstrating a rare willingness to discard prior precedent as well as to divorce takings law from that of due process. Moreover, the Court unanimously reaffirmed five other decisions (Penn Central, Loretto, Nolan, Lucas, and Dolan) that now govern the regulatory takings inquiry.

This article argues that these five decisions, along with Lingle itself, should be considered uniquely authoritative (akin to a canon of sacred writings) with regard to takings analysis. By reading this canon exegetically - that is, by divining the intent of the Court through the language and context of the decisions viewed as if they were components of a single, unified text - it is possible to perceive a way out of the takings muddle. Viewing the cases in this manner, the canon presents a clearer picture of the overarching themes and characteristics of regulatory takings, as well as a greater coherence in the frameworks under which takings claims should be analyzed. This article seeks to elucidate those themes and characteristics, explain the analytical frameworks, and raise issues that continue to require the Court's attention.

Ben Barros

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Heller and Hills on Land Assembly

Michael Heller (Columbia) and Rodercik Hills (NYU) have posted The Art of Land Assembly on SSRN. Here's the abstract:

Eminent domain for economic development is attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. In this Article, we propose the creation of Land Assembly Districts or "LADs." This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful re-design of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: Where the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let's try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Two by Freyfogle

Eric Freyfogle (Illinois) has two new posts up on SSRN.  They are:

Private Property: Correcting the Half Truths

Today's discussions about private land ownership and regulatory takings build upon a number of critical assumptions about how private property arises, how it relates to liberty, in what sense it is an individual right, what full ownership entails, and how property rights might legitimately change over time. This essay-excerpted from chapter 1 of a new book, On Private Property: Finding Common Ground on the Ownership of Land-steps back from contemporary debates to probe these fundamental assumptions. The assumptions, it claims, tend to be seriously flawed; they are no more than half-right, and need important revision to provide a solid foundation for evaluating where we stand and charting a course ahead. At root, private property is a social institution, created by law and lawmakers and appropriately revised, generation by generation. Private property does not exist primarily to protect individual liberty; indeed, it curtails liberty as much as it protects it. It makes little sense, also, to claim: that property begins when a person takes first possession of a thing; that private property can somehow be crafted as absolute; and that ownership necessarily entails expansive rights to develop. The situation is more complex, and property rights more pliable, tentative, and morally complex. Scholarly writing on private property would likely improve if commentators turned away from Supreme Court rulings on takings and focused instead on the fundamental elements of private property as an essential tool that society uses and continually reshapes to foster shared goals.

Property's Functions and the Right to Develop

At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good.

This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.

Ben Barros

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Marco on Just Compensation

Alan C. Marco (Vassar College, Dep't of Econ.) has posted Of Multipliers and Market Value: Just Compensation in a Post-Kelo World on SSRN.  Here's the abstract:

In the wake of the US Supreme Court decision in Kelo v. The City of New London, several state passed regulation increasing the statutory compensation for eminent domain takings. Some of the increases were based on multipliers of market value, yet there has been little attempt to provide an economic justification for the magnitude of the multipliers. In this note, I propose a mechanism to compensate property owners at the average willingness-to-pay rather than the marginal willingness-to-pay.

Ben Barros

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Federal Court Imposes Large Inverse Condemnation Award

The case is Yamagiwa v. City of Half Moon Bay.    Ilya Somin has a post on the case at the VC.  Gideon Kanner also has two posts on the case, here and here.  In case you're wondering why this case was in federal court, it appears that the City removed it from state court.

Ben Barros

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Third Circuit RLUIPA/Eminent Domain Case

A divided Third Circuit panel recently decided Lighthouse Institute for Evangelism v. City of Long Branch, a RLUIPA case with a redevelopment/eminent domain twist.  The New Jersey Eminent Domain Blog has a recap of the case.  An excerpt:

In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. . . .

The majority opinion, written by senior Judge Jane Roth, affirms the entry of summary judgment by Judge William Walls of the U.S. District Court. The dissent, filed by Judge Kent A. Jordan, disagreed with the majority regarding the redevelopment plan ordinance. Judge Jordan said that both ordinances failed to treat religious and non-religious assemblies on equal terms and, therefore, violate the very purpose for which the RLUIPA statute was enacted.

Judge Jordan noted that both ordinances, as interpreted by Long Branch,  prohibit religious use categorically. Judge Jordan reasoned that, if the majority reading of RLUIPA were correct, local governments could effectively render RLUIPA meaningless. Both the Becket Fund for Religious Liberty and the Department of Justice Civil Rights Division argued as amicus in support of Reverend Brown and the Lighthouse Mission. This decision is at odds with other decisions regarding RLUIPA in other circuit courts and may well end up before the United States Supreme Court.

The location of houses of worship, temples, mosques, and evangelical congregations is an issue that comes up frequently in New Jersey. Protracted battles in Rockaway Township ensued over the site selection by Dr. David Ireland, pastor of the 5000-member Christ Church. That church, a predominantly African American evangelical congregation, sought to move from its Montclair location to the former Agilent site in Rockaway. The relocation of the church was vigorously contested by a group of local residents. In Wayne, an Albanian mosque pursued litigation against the township of Wayne because the planning board delayed the plaintiff’s land use application.

Ben Barros

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Colorado Redevelopment Case

The Colorado Supreme Court recently decided Wheat Ridge Urban Renewal Authority v. Cornerstone Group, an eminent domain case involving the ability of the government to change its mind and back out of a redevelopment condemnation.  Ilya Somin and Tim Sandefur both have comments on the case.

Ben Barros

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Interesting Sign Dispute, With Eminent Domain Twist

From the Saint Louis Post-Dispatch:

Supporters say it's a political statement, maybe even art. The city says it's too big, a nuisance that needs to be removed.

Either way, a two-story mural decrying eminent domain is testing the boundaries of the First Amendment, sparking a federal lawsuit that challenges the city's intricate zoning code.

At issue is a tricky constitutional dilemma — fighting clutter versus protecting free speech — that experts say could force St. Louis to rewrite its laws regarding outdoor signs. . . .

Painted on the side of a brick apartment building near Soulard, the mural faces drivers heading downtown on Gravois Avenue. It advocates an end to "eminent domain abuse," the mantra of veteran activist Jim Roos.

Roos is among the state's leaders in the fight against eminent domain, an issue that has gained visibility since a 2005 Supreme Court ruling that cities can use eminent domain to promote economic development. He has testified in Jefferson City and clashed with city officials who support eminent domain. . . .

In April, the building division cited Roos for having an illegal sign. At about 360 square feet, the eminent domain mural is more than 10 times larger than the size allowed for signs in that section of the city.

Three surrounding neighborhood associations have submitted letters opposing the sign, as did the local alderman, Phyllis Young.

"He should rent a billboard," Young said.

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

"I think if it said, 'Go Cardinals,' we wouldn't have any problems," Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos' claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility's downtown headquarters.

Even so, content is not the issue, city officials say — it's keeping the city tidy.

"Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?" asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va.

Ben Barros

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Shavell on Government Land Acquisition

Steven Shavell (Harvard Law School) has posted Eminent Domain versus Government Purchase of Land Given Imperfect Information about Owners' Valuations on SSRN.  Here's the abstract:

Governments employ two basic policies for acquiring land: taking it through exercise of their power of eminent domain; and purchasing it. The social desirability of these two policies is compared in a model in which the government's information about landowners' valuations is imperfect. Under this assumption, the policy of purchase possesses the market test advantage that the government obtains land only if an owner's valuation is low enough that he is willing to sell it. However, the policy suffers from a drawback when the land that the government needs is owned by many parties. In that case, the government's acquisition will fail if any of the owners refuses to sell. Hence, the policy of eminent domain becomes appealing if the number of owners of the land is large. This conclusion holds regardless of whether the land that the government seeks is a parcel at a fixed location or instead may be located anywhere in a region.

Ben Barros

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Schragger on Cities, Economic Development, and the Free Trade Constitution

Richard C. Schragger (UVA) has posted Cities, Economic Development, and the Free Trade Constitution on SSRN.  Here's the abstract:

The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized country in which cities and large metropolitan areas dominate the national economy, much of the cross-border movement of persons, goods, and capital inside the United States is more accurately characterized as inter-municipal rather than inter-state. This Article examines the constitutional rules that govern this cross-border movement from the perspective of the city. The Article argues that judges and commentators have misapprehended the jurisprudence of the American common market because they have been looking at its operation on the wrong scale. Examining how the doctrine operates at the municipal level exposes the gaps and contradictions in the jurisprudence, reveals connections between legal doctrines that heretofore had not been considered part of the free trade regime, and highlights the Supreme Court's implicit (and under-theorized) urban economic policy. The reframing of the economic and jurisprudential place of cities in the free trade constitution sheds light on a number of important recent cases, in particular Kelo v. New London, in which the Court upheld a city's use of eminent domain for economic development purposes under the Fifth Amendment's Takings Clause. The Article's city-centric approach also intervenes in a number of judicial and scholarly debates, including the appropriate reach and application of the ?dormant? commerce clause, the appropriate judicial oversight of local land use regulations under the Takings Clause, and the role of courts in policing and shaping local economic development efforts more generally.

Ben Barros

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Klass on The Frontier of Eminent Domain

Alexandra B. Klass (Minnesota) has posted The Frontier of Eminent Domain on SSRN.  Here's the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state statutes to take private property to develop coal, oil, or other natural resources. In fact, the Supreme Court's deference to such “natural resource development takings” in the early part of the 20th century was the base upon which the Court built its decision in Kelo. This Article first explores the relationship between Kelo-type economic development takings and natural resource development takings and argues that the national reaction to Kelo has focused too narrowly on government takings and ignored the impact of private takings. It then uses recent property reforms in the Interior West to explore the broader implications of the role of eminent domain in reallocating property in society and proposes some additional reforms for natural resource development takings.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Davidson on Takings and Equality

Nestor Davidson (U. Colorado) has posted The Problem of Equality in Takings on SSRN.  Here's the abstract:

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulato