PropertyProf Blog

GUEST BLOG: SCOTUS Mulling Cert. Petition on Key Takings Law Issue in 616 Croft Ave.

We're thrilled to have Tim Mulvaney (Texas A&M) step in to guest blog on a potential SCOTUS takings case:

On October 27, 2017, the Supreme Court will consider for the third time the petition for certiorari in 616 Croft Ave. v. City of West Hollywood, a case that raises the open question of whether the probing scrutiny applicable in takings cases involving individualized administrative exactions also should be applied in cases involving generalized legislative exactions. While the fact that 616 Croft has been relisted multiple times is no guarantee that the Court will agree to hear the case, history suggests that re-listing for a future conference significantly increases the chances that it will do so.

616 Croft centers on a California municipality’s inclusionary housing ordinance, a commonly adopted measure seeking to increase the availability of affordable housing. The ordinance requires that developers sell or rent a portion of newly constructed units at below-market rates or, alternatively, to pay a formula-derived “in lieu” fee designated to funding the construction of the equivalent number of units elsewhere in the city. Here, a development company sought permission to build an 11-unit condominium complex. When the city applied the inclusionary housing ordinance, the development company paid the fee “under protest” and unsuccessfully challenged the ordinance on its face in state court as an unconstitutional taking of property in accord with the Supreme Court’s “exaction takings” decisions of Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. John’s.

Seemingly out of concern that administrative exactions present the possibility for extortionate, targeted conduct by government officials with authority to deny permitting applications, the Court asserted in Nollan and Dolan more than two decades ago that the government shoulders the burden of proving that at least those administrative exactions requiring permanent public occupation of the permitee’s land—in these cases, a public walking and bicycling easement, respectively—bear an “essential nexus” to and are in “rough proportionality” with the proposed development’s impacts to avoid having to pay takings compensation. These decisions have been described as imposing a form of heightened scrutiny in the sense that their tests shift the burden of proof away from the claimant and toward the defendant government entity, authorize review of the relationship between an exaction’s design and the public goals in imposing that exaction (a traditional due process question, only more probing), and allow for takings liability findings in instances where the economic impact of the exaction is quite modest. In 2011, Koontz extended application of Nollan and Dolan to some still-unspecified class of individualized mitigation fees.

In its petition for certiorari in 616 Croft, the development company argues that the takings scrutiny applied to the exactions imposed via case-by-case administration in Nolan, Dolan, and Koontz is also applicable in situations where the government imposes exactions via broadly applicable legislative formulas or schemes. Such a holding by the Court very well could limit not only the adoption of inclusionary housing ordinances but also myriad approaches to wetland mitigation, infrastructure support, and the like.

The Petitioners in 616 Croft are represented by the Pacific Legal Foundation, a prominent libertarian public interest law firm familiar to takings mavens for representing property owners in Nollan, Koontz, Palazzolo v. Rhode Island, and, most recently, Murr v. Wisconsin, among many other takings cases before the Supreme Court. Amicus briefs in support of the petition have been filed by the Cato Institute, the Citizens’ Alliance for Property Rights Legal Fund, and a collection of land use and economics scholars headlined by renowned Yale law professor Bob Ellickson.

Last year, I published this paper that sets out the many competing arguments surrounding the appropriate measure of takings scrutiny in cases involving legislative exactions. In the piece, I suggested that proponents of progressive conceptions of property have a number of strong first-order reasons to support immunizing legislative exactions from Nollan/Dolan scrutiny, but that several secondary effects of this approach make the issue a more challenging one for progressive property scholars and advocates than it initially might appear.

Stay tuned to the Property Prof Blog for an update on the Supreme Court’s upcoming conference on 616 Croft!

 

Klein on Groundwater Exceptionalism and Ownership v. Use

Christine Klein (Florida) has posted Owning Groundwater: The Example of Mississippi v. Tennessee (35 Virginia Envtl. L.J. 474 (2017)) on SSRN. Here's the abstract:

In Mississippi v. Tennessee, a case currently on the U.S. Supreme Court’s docket, Mississippi claims that it owns all groundwater stored underneath its borders that does not cross into Tennessee under “natural predevelopment” conditions—those existing before the advent of modern well technology. Consequently, Mississippi seeks more than $600 million from Tennessee for pumping of wells that tap into a geologic formation that underlies both states. This remarkable claim departs from the U.S. Supreme Court doctrine of “equitable apportionment” under which the Court has resolved interstate surface water conflicts, determining relative rights of use rather than awarding monetary damages based on water ownership. It also departs from the almost uniformly established proposition that the states do not “own” the water within their borders in a physical sense, but instead are authorized to manage that water for the “use” of their citizens. This Article situates the conflict at the crossroads of two broader issues. First, under a phenomenon this Article dubs “groundwater exceptionalism,” the law often treats groundwater differently than surface water, partly as a relic of slow-developing hydrologic knowledge. Second, the dispute goes to the very heart of property law and the meaning of ownership, as distinguished from rights of use. The lower courts have consistently framed this decade-​​long dispute as a matter of competing uses, but have also interjected the rhetoric of ownership into their opinions. This conflation of use and ownership has the potential to affect the outcome of this case, as well as distort future litigation involving equitable apportionment, regulatory takings, state water rights law, and other legal doctrines.

PropertyProfs Singer, Atuahene, & Epstein Head to Texas A&M for Workshops

If anyone is in the Dallas/Forth Worth area, Texas A&M has a fantastic line-up of property professors coming to town this academic year. Check them out below!:

If you have a property professor coming to speak at your school, contact me and we'll work to do a feature blog post on them and their talk.

(Hat Tip to our own Tim Mulvaney)

DEAN SEARCH ANNOUNCEMENT: TEXAS A&M UNIVERSITY SCHOOL OF LAW

From our good friend and fellow property law prof Tim Mulvaney (Texas A&M), see the following:

Dean, Texas A&M University School of Law Fort Worth, Texas
October 3, 2017

Texas A&M University invites nominations and applications for the position of Dean of the Texas A&M University School of Law. The desired appointment date is July 1, 2018.

Texas A&M University is a tier‐one research institution and American Association of Universities member. As the sixth largest university in the United States, Texas A&M University is a public land‐ grant, sea‐grant, and space‐grant university dedicated to global impact through scholarship, teaching, and service. The members of its 440,000 strong worldwide Aggie network are dedicated to the University and committed to its core values of excellence, integrity, leadership, loyalty, respect, and selfless service.

Located in Fort Worth, the Texas A&M University School of Law is one of 16 colleges and schools that foster innovative and cross‐disciplinary collaboration across more than 140 university institutes and centers and two branch campuses, located in Galveston, Texas and Doha, Qatar. Since joining the A&M family in 2013, the law school has sustained a remarkable upward trajectory by increasing its entering class credentials and financial aid budgets; shrinking the class size; hiring new faculty members, including nationally recognized scholars; and enhancing the student experience. Consistent with its mission, Texas A&M University School of Law integrates cutting edge and multidisciplinary scholarship with first‐rate teaching to provide students with the professional skills and knowledge necessary for tomorrow’s lawyers. Texas A&M University School of Law faculty members and students play a vital role by providing their legal expertise to collaborations with other Texas A&M professionals to develop new understandings through research and creativity.

The next Dean of Texas A&M University School of Law should provide dynamic, innovative, and entrepreneurial leadership and vision to shape the school’s continued transformation into a model for future legal education. Candidates should have a Juris Doctorate and a scholarly record appropriate for appointment at the rank of tenured professor. Other candidates who hold distinguished records of professional and intellectual leadership or outstanding service to the community will also be considered. The successful candidate should be:

• committed to the school’s scholarly mission;
• a strong law school advocate who seeks cross‐unit collaborations with other university schools and colleges;
• a successful fundraiser who can obtain support for various programs and projects, including the Law School Building Project recently approved by The Texas A&M University System Board of Regents, as well as endowed faculty chairs, professorships, and student scholarships;
• an effective administrator with team‐building skills and a collaborative management style appropriate to a complex organization; and
• dedicated to community engagement and public service and experienced at external relations, including outreach to law firms, corporations, and foundations as well as government agencies, non‐profit organizations and policy‐

The Texas A&M University School of Law is located in the heart of downtown Fort Worth, a city known for a unique confluence of Texas history and renowned arts. Fort Worth enjoys a diverse business community, including energy, defense, international trade, and logistics as well as financial services.

Just outside of downtown, Fort Worth has many neighborhoods with recognized schools a short  distance from the law school. Fort Worth is known nationally as the home to the Bass Performance Hall, the Kimbell Art Museum, and the Amon Carter Museum of American Art, among others. The Trinity River flows through the city. It features over 40 miles of trails, providing access to the Fort Worth Botanic Garden, the Japanese Garden, the Fort Worth Zoo, and the historic Stockyards. The Fort Worth/Dallas metropolitan area has a total population of more than seven million. It offers a vibrant legal community that supports extensive federal and state court systems, including the Patent and Trademark Office, the Federal Reserve Bank, the National Labor Relations Board, the Environmental Protection Agency, and the Securities and Exchange Commission. Fort Worth/Dallas has one of the world’s largest airports. As one of the most desirable places to live and work in the United States, the metroplex has attracted many multinational corporations.

Applications should include a curriculum vitae, a cover letter including a statement of interest, and a list of three references. Only nominations and applications received by November 17, 2017 are assured consideration. Nominations and applications received after November 17, 2017 may or may not be considered.

Applications and nominations should be submitted electronically in confidence to [email protected]. Applicant information will be kept confidential to the maximum extent allowable by law. Additional information and timeline can be found at http://lawsearch.tamu.edu.

Texas A&M University provides equal opportunity to all employees, students, applicants for employment or admission, and the public, regardless of race, color, sex, religion, national origin, age, disability, genetic information, veteran status, sexual orientation, or gender identity.