Land Use Prof Blog

Barros on the Complexities of Judicial Takings

Benjamin Barros (Widener)--the Property Prof Blogger--has posted The Complexities of Judicial Takings.  The abstract:

In last term’s Stop the Beach Renourishment Inc. v. Florida DEP, the Supreme Court for the first time squarely confronted the question of whether a judicial action could ever be considered an unconstitutional taking of private property. The Court unanimously rejected the judicial takings claim, but the justices issued a highly fragmented set of opinions. No justice was able to command a majority on any of the major conceptual issues presented by the judicial takings question. As a result, the Court dramatically raised the profile of judicial takings question, but left all of the major issues open.

In this article, I argue that the judicial takings issues are even more complicated than the Court’s fractured opinions suggest. In particular, I argue that three factual distinctions among types of cases that largely were ignored in Stop the Beach can lead to dramatically different outcomes in matters of judicial takings standards, procedures, and remedies. I analyze each of the substantive and procedural issues raised by judicial takings in light of these factual distinctions. Along the way, I argue that judicial takings does not require a unique standard different from the Court’s existing takings standards, and that judicial takings (and regulatory takings more broadly) should apply to government actions that mandate transfers of private property to public ownership, but not to government actions that mandate transfers of property between private persons.

Matt Festa

Crude Justice screening at South Texas

South Texas College of Law will be hosting a screening and discussion of the documentary film Crude Justice, produced by the Alliance for Justice, on Wednesday, Oct. 27 at 4:00 (rm. 314, with refreshments!).  The film chronicles the plight of victims of the Deepwater Horizon spill, with particular focus on the legal justice aspects of the issue.  After the film is shown, Professors Olga Moya, Fran Ortiz, and I will comment. and hopefully start an interesting discussion.  The event is sponsored by the Islamic Legal Society, the Environmental Law Society, and the Public Interest Law Society.  Here's the blurb for the film:

Shot on location in Louisiana, this film explores the damage done by this unimaginable environmental calamity to the lives and livelihoods of the people who depend on the waters of the Gulf of Mexico for their income, their food, and the continuation of their culture. Titled Crude Justice, the 17-minute documentary looks at the difficulties ordinary people face in finding fair compensation and a secure future for their families in the face of corporate domination of the courts, statutes favoring big business, judges with ties to the oil and gas industries, and the uncertainties that accompany an incident where the long-term effects may not be known for years. Crude Justice tells the story of damaged lives, but also of the fighting spirit and resilience of people who understand that what's threatened is not just justice for the victims of the spill, but the integrity of the American judicial system itself. 

Go ahead and view the provocative short documentary Crude Justice, and if you are able, join us for the discussion in Houston.  

Matt Festa

Sheff on the Residential Landlord's Duty to Mitigate

Jeremy N. Sheff (St. John's) has posted A Tale of Two Cities: The Residential Landlord's Duty to Mitigate in New York, forthcoming in the Journal of Civil Rights and Economic Development, Vol. 25 (2011).  The abstract:

The 2008 decision of the New York Supreme Court's Appellate Division for the Second Department in Rios v. Carrillo brought stability to a previously uncertain area of landlord-tenant law: the duty of residential landlords to attempt to mitigate damages in the event of tenant abandonment. This article argues that in the instability that largely reigned prior to Rios, courts used the debate over what legal rule to apply in tenant abandonment cases as a tool to decide such cases based on flexible equitable standards that took into account the relative economic position of the parties and their degree of good faith. Because the New York court system accords weight to appellate precedent in part based on amount in controversy, and because Rios involved what can only be described as a luxury property, the Second Department's ruling has the perverse effect of subjecting economically insecure parties to solutions developed for far wealthier litigants. This article demonstrates the extent of this effect by reference to census data on households and housing markets, and argues that Rios was wrongly decided not only as a matter of legal analysis, but as a matter of policy.

Matt Festa

Malloy on Adam Smith in the Courts of the United States

Robin Paul Malloy (Syracuse) has posted Adam Smith in the Courts of the United States, Loyola Law Review Vol. 56, p. 33 (2010).  The abstract:

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases. 

Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire. 

The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

This article covers many topics and should be of interest to anyone working in the history or economic underpinnings of land use issues.  

Matt Festa

Judicial Takings--Back to the Supreme Court?

Ilya Somin has an interesting post at the Volokh Conspiracy titled Is the Judicial Takings Issue Headed Back to the Supreme Court?  Somin notes that in Stop the Beach Renourishment, the Court split 4-4 on the merits of the judicial takings issue, and then describes a Montana state court case, PPL Montana v. State of Montana, that has been petitioned for certiorari.  The case turns on a favorite topic of mine, the constitutional definition of property with respect to "navigable waters."  Somin offers some analysis from Ilya Shapiro of the Cato Institute, who authored an amicus brief supporting cert.  While it's far from a sure thing to be granted cert, Somin thinks that it could potentially present the judicial takings issue more squarely, and he notes:

If the Supreme Court takes this case, it may be less willing to grant broad discretion to state courts than it was in Stop the Beach, because the relevant state law doctrine (the definition of “navigable”) is derived from federal law.

 Matt Festa

Shapiro and Burrus on Judicial Takings and Scalia's Shifting Sands

Ilya Shapiro (Cato) and Trevor Burrus (Cato) have posted Judicial Takings and Scalia's Shifting Sands, forthcoming in the Vermont Law Review, Vol. 35.  The abstract:

In this article, we examine the background of the judicial takings doctrine, discuss the Supreme Court’s ruling in Stop the Beach, react to that decision in light of Cato’s amicus brief, and contrast Justice Antonin Scalia’s views of Substantive Due Process as expressed in Stop the Beach with that in another high-profile case whose plurality opinion he joined, McDonald v. City of Chicago, to argue that the judicial takings doctrine is necessary to a robust constitutional protection of property rights.

Matt Festa

Fanizzo on Property Management Under the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Politics, Persuasion, and Enforcement: Property Management Under the Antiquities Act, from the 13th Annual US/ICOMOS International Symposium, Economic Benefits, Social Opportunities, and Challenges of Supporting Cultural Heritage for Sustainable Development, May 20-22, 2010 and adapted from her article Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, ENVIRONMENTAL LAW, Volume 40, Issue 3.  The abstract:

Recognizing the tremendous loss to the nation that results from unchecked collecting and vandalism, Congress passed the Antiquities Act in 1906 to preserve threatened historic and scientific structures, ruins, and objects and protect against the loss of valuable scientific data. Granting considerable authority to the President, the Antiquities Act provides for the designation of national monuments through the withdrawal of public land. Over the past decades, numerous monument designations have raised questions about the limits of the President’s role in federal land management. But practical questions looming just beyond the President’s ability to designate a national monument only recently surfaced in a challenge to the Bureau of Land Management’s (BLM) grazing policies in the Sonoran Desert National Monument. This case before the Arizona District Court focused on the BLM’s management of the national monument, and not the process of its designation. This challenge sparked a discussion on how the protective intent of a monument proclamation can be best achieved. It asked what is the President’s authority to manage a national monument and when can a third party sue to force an executive agency to comply with the monument proclamation’s terms. This paper argues that consistent judicial review of an agency’s management of a monument can help national monument designations maintain their protective purpose. In the context of the Antiquities Act and more broadly, using this challenge as a case study allows us to consider what teeth are left in this law, now on the books for over a hundred years, to protect significant historic and scientific resources.

Matt Festa

Leshy on a Property Clause for the Twenty-First Century

John D. Leshy (Hastings) has posted A Property Clause for the Twenty-First Century, published in University of Colorado Law Review Vol. 75 (2004).  The abstract:

This article tries to draw some lessons from the way the Supreme Court has addressed implementation of the Property Clause of the U.S. Constitution by the Congress and the Executive, the more political branches of the national government. The Court has long said that the Property Clause contains no judicially enforceable limits on those other branches, and that stance is likely to continue. This article argues, instead, that the Property Clause can be said to have framed an attitude the Supreme Court has brought to bear on legal issues involving federal lands. That attitude, which may fairly be viewed as an expression of constitutional common law, favors retention of federal land in national ownership (retention), national over state and local authority (nationalization), and environmental preservation (conservation). It concludes that the Court’s decisions embodying that attitude have left a decidedly positive imprint on American life and culture.

Matt Festa

Hudson on The Public and Wildlife Trust Doctrines and the Lucas Remand

Blake Hudson (Stetson) has posted The Public and Wildlife Trust Doctrines and the Untold Story of the Lucas Remand, published in Columbia Journal of Environmental Law, Vol. 34, No. 1, 2009 .  The abstract:

Government attempts to protect ecosystems on private lands are often thwarted by Fifth Amendment takings claims demanding that “just compensation” be paid to the property owner. In the case of Lucas v. South Carolina Coastal Council, the U.S. Supreme Court found that a state statute could survive a takings claim if the state could prove on remand that “background principles of property law” applied to the subject property. Scholarly works since Lucas have argued that “background principles” includes the public and wildlife trust doctrines. However, on remand, the state failed to assert either doctrine in defense of the statute. Though authors have focused on this aspect of the case, no author has before, to my knowledge, discussed the oral arguments presented on remand to the South Carolina Supreme Court. These arguments were neither transcribed in court documents, nor detailed in the final court order. Strikingly, during the oral argument the court actually invited the state to assert the public trust doctrine, but the state was unprepared. This invitation by the court lends important support to the argument that the doctrines may be asserted to protect environmental regulations from takings claims under the circumstances presented in Lucas. This article details the history of the two doctrines, discussing the similarities between them and demonstrating their broad application to a greater number of resources than those protected in the seminal cases. The article next analyzes the Lucas remand, focusing on the court’s invitation to the state to assert the public trust doctrine. Finally, the article discusses how the U.S. Supreme Court could have decided the case without remand, by applying the doctrines directly – the nature of the doctrines would have allowed the Court to uphold the state law without violating the Constitution.

Matt Festa

NY Court of Appeals decides Columbia U. Eminent Domain case

The New York Court of Appeals today handed down its decision in Kaur v. New York State Urban Development Corp., the challenge to the government's use of eminent domain in conjunction with a Columbia University development project.  To almost no one's surprise, the NY high court reversed the Appellate Division'sruling that the taking was unconstitutional.  Especially since the Goldstien case (i.e., Atlantic Yards) came out last fall, solidifying the New York approach of Kelo-style deference to governmental assertions of economic development as consonant with the Public Use Clause.  

And just yesterday I was blogging about how the incidence of economic development takings might be down due in part to the Kelo backlash!  But this is New York, of course--one of just a handful of states that has not even passed any sort of anti-Kelo measure at all.  I just read the Kaur decision; I expected the standard Kelo-style deference to legislative and executive officials to determine what things are in the public benefit (although I thought the Court rather passively accepted the argument that Columbia = education (nonprofit!) and education = good = constitutionally sufficient public benefit).  But I was still a little surprised at the extent to which the Court seems to bend over backwards to disclaim any competence at all to evaluate the sufficiency of a "blight" determination by the government (which also gets to decide to use eminent domain).  That's the rational basis test taken to its logical extreme.  

Keith Hirokawa (Albany) and Patricia Salkin (Albany) recently posted their article Can Urban University Expansion and Sustainable Development Co-Exist? A Case Study in Progress on Columbia University, Fordham Urban Law Journal, Vol. 37 (2010).   Their article provides a great overview of the background of the project and many of the land use issues involved.  Ilya Somin has a good early analysis of the decision here, with some further analysis of the blight issue in the case.  I do hope that the Columbia project succeeds in enhancing the neighborhood with walkable mixed-use and economically successful community development, where other high-profile comprehensive economic development takings have failed.   

Matt Festa

Institute for Justice on Kelo at Five Years

The Institute for Justice has published a white paper commenting on the fifth anniversary of the Kelo decision: Five Years After Kelo: The Sweeping Backlash Against One of the Supreme Court’s Most-Despised Decisions.  The IJ, you may remember, was lead counsel for the homeowner plaintiffs in the case.  The paper, of course, expresses IJ's continued opposition to the SCOTUS ruling, but nonetheless seems to strike a cautiously optimistic note regarding eminent domain in the wake of the Kelo backlash.  From the intro:

Less than one week after the decision was handed down, the Institute for Justice launched a national campaign called “Hands Off My Home.”  IJ was determined to focus the outrage over Kelo and turn it into meaningful reform.   In the five years since the decision, there has been an unprecedented backlash against the Kelo ruling in terms of public opinion, citizen activism, legislative changes, state court decisions, and lessons learned from the New London case . . .

There is another paragraph in the conclusion that I find very interesting.  Back when Pfizer moved out of its New London facility, I suggested on the New York Times "Room for Debate" Blog that the failure of the New London plan, and the Kelo backlash generally, might work to discourage planners and local governments from pursuing economic development takings (I called the Pfizer/New London debacle "Exhibit A" in the case against eminent domain for comprehensive redevelopment).  Ilya Somin, who was involved in the case, and has done the definitive research on the problems and loopholes of the post-Kelo state "reform" legislation, agreed that the backlash was significant but thought I might have been too optimistic about the deterrent effect of the backlash.  I agreed that I was in fact expressing an optimistic viewpoint--if I had had to bet money, I probably would have gone with Somin's more realistic prediction.  And I still have absolutely no empirical data at hand regarding the rate of economic development takings since Kelo.  But the IJ's report seems to indicate that there has been at least a slowdown in litigation on the issue:

The results of the Kelo backlash have been striking.  The Institute for Justice used to get continual requests for assistance in fighting eminent domain for private gain.  Now, we receive far fewer.  Of those, many are defeated by activism in the court of public opinion before they ever reach a court of law.  Eminent domain abuse used to be a nationwide epidemic with more than 10,000 instances reported in just one five-year period alone, an epidemic that affected property owners in most states.[20]  Now, it is largely a problem confined to certain reform-resistant states, like New York, that refuse to change their laws or listen to their own citizens.  The Institute is focusing its efforts in litigation and advocacy in those states.

It was exactly that "court of public opinion" effect that I had in mind.  Now of course, a slowdown in litigation requests to IJ doesn't necessarily mean there is less eminent domain out there.  And there are two obvious counterarguments: (1) there are fewer requests to IJ because Kelo essentially declared economic development takings to be legal and constitutional, so there may be fewer disputes over such takings when they happen; (2) in the recession, planners and local governments are less eager for purely economic reasons to do New London-style redevelopment projects.  And just because there might be less interest-group litigation doesn't mean that the issue has faded as a serious legal and policy matter.

Still, it's an interesting take on the political and policy effects of the Kelo backlash five years after the opinion.  Thanks to Brian Erskine for the pointer.

UPDATE: Ilya Somin has his thoughts on Kelo's fifth here. 

Matt Festa

Supreme Court Decides Stop the Beach Renourishment

The big property rights case of the Term has been decided.  In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court rejected the judicial takings claim unanimously.  The opinion is here: http://www.supremecourt.gov/opinions/09pdf/08-1151.pdf.  Justice Scalia wrote the majority opinion, but it is not the opinion of the court on all parts.  Justices Kennedy and Breyer wrote separately.  We've posted about the case previously here, here, here, and here.  For a great analysis of what was at stake in the case, re-read Ben Barros' excellent post from last year. 

Also, tons of links (briefs, case history, oral argument, news articles) at the SCOTUS Wiki page for the case.

A quick look seems to indicate that the Justices split (4-4, with J. Stevens taking no part) over the issue of whether there can be such a thing as a judicial taking under the right circumstances.  Now, to go read the opinions . . . .

Matt Festa

Sharma on Rent Control Legislation in India

Sharda Sharma (Chanakya National Law University) has posted Interpreting Rent Control Legislation: Role of Judiciary - A Critique.  The Abstract:

In India rent control legislation has caused inefficient use of built space, arbitrary allocation of space and retardation of new construction initiatives. The executive is hardly concerned to revive the rent as per market price and the judiciary is inclined to give extra benefit to the renters by interpreting the various provisions in the favour of renter. But while reading the statute it appears that Supreme Court interpretation of rent legislation is not only contrary to the intention of legislature but also its previous decision. 

This article tries to analyse one such aspect of rent legislation. I have tries to answer the controversy concerning the issue that whether a habitual defaulter who pays rent just before the landlord decides to file the case for eviction will be evicted on the ground on non payment or will be get the benefit of waiver of cause of action as the rent has been paid and at the time of instituting the suit no such cause remains.

Matt Festa

Sterk on Structural Obstacles to Settlement of Land Use Disputes

Stewart E. Sterk (Cardozo) has posted Structural Obstacles to Settlement of Land Use Disputes, forthcoming in the Boston University Law Review.  The abstract:

In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution.

On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the ultimate land use decisions. Because broad participation in the decisionmaking process operates both to educate decisionmakers and to increase acceptance of adverse decisions, excluding neighbors from the settlement process threatens significant substantive and process values.

Concerns about closed-door decisionmaking, however, do not justify a doctrinal framework that permits collateral challenges to land use settlements. Instead, permitting neighbors to intervene in proceedings between developers and municipalities, and binding neighbors to settlement when they choose not to intervene, better harmonizes the interest in informed and participatory decisionmaking with the cost-saving advantages of negotiated solutions to land use problems.

Matt Festa