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Why Isn't This A "Judicial Taking?" Washington Supreme Court Orders Property Owner To Sell To Neighbor

Courts have equitable powers to fashion remedies that the law may not account for, but does a state's judicial power stretch so far as to allow it to order a property owner to sell an acre of property (at fair market value) to a neighbor who had built an encroaching structure over the property line due to the erroneous words of a surveyor, even though the neighbor could not prove adverse possession or any other theory that would entitle its building to continue to encroach?

In Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), a deeply divided (5-4) Washington Supreme Court held that even though the encroaching property owner was not entitled to adversely possess the property, the court would order an appraisal of the property, and force the owner to sell it. Our thanks to the Supreme Court of Washington Blog and to our colleagues at the Eminent Domain Law Blog for bringing this case to our attention (note: the Washington court web site is hosed up, so we can't provide a link to the slip opinion, but we will once the court site unsticks itself - update: opinion is posted here). Read the story from the Seattle Times (Oops! The House in on the Wrong Lot) for more, including the judicial intrigue that apparently is involved.

The majority agreed that the encroaching owner did not meet Washington's 10-year adverse possession requirements, but that it would be "unfair" to order the owner of the encroaching structure to remove it:

We recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach. Nothing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers. Proctor does not forfeit the right to his land, nor do the Huntingtons get something for nothing.

Slip op. at 13. The four dissenting justices were hearing nothing of it:

A fundamental aspect of private property is the landowner's right to choose if he or she will sell the property and, if so, for how much. The majority cannot simply stroll through Sherwood Forest, redistribute property, and say any harm is slight if the victims are paid what the court determines is fair market value. If Proctor really valued his property only at the market value, he would have sold it already.

Dissent at 6. In other words, the five-justice majority of the Washington Supreme Court ordered the owner of the property -- against his will -- to sell it to a neighbor for fair market value.

But read the quote from the majority again: "Proctor does not forfeit the right to his land." Say what? You bet he did: it was a forced sale, albeit for value. That seems a lot like eminent domain, doesn't it? In Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010), six Justices agreed that in certain circumstances, a state supreme court’s recharacterization of property from private to public would violate the Constitution; the four-justice Scalia-led plurality concluded it would be a Takings Clause problem, while Justice Kennedy, joined by Justice Sotomayor, saw it as involving the legitimacy of the state court’s action – in other words, substantive due process. Justice Breyer, joined by Justice Ginsburg agreed there was no judicial taking in the case, but demurred on expressing any opinion of when there would be.

In our recent draft article on judicial takings, my colleagues and I argue that a state supreme court decision takes property when it when it changes state law and, in doing so, interferes with an "essential use or economic value of the property." The Washington Supreme Court's decision in Proctor seems to fit the bill on both counts. First, despite the majority's assertions otherwise, it does change Washington law in that ownership (real or adverse) or property is no longer a necessary element in a defense to a trespass or ejectment claim. Second, the right to exclude others -- including the right to force a trespasser off your land -- is one of the core elements of property that should be protected by the Fourteenth Amendment from state interference, or, in this case, actual deprivation. The majority's notion of "no harm, no foul" by ordering an appraisal and the payment of fair market value only seems to underline the condemnation-esque result of its decision.

In the Washington case, the state supreme court did not recharacterize the property from private to public, but ordered it transferred from one private owner to another with no apparent public benefit (other than keeping the two neighbors from dueling it out with pistols at high noon on the disputed land). Thus, it is arguably not only a judicial taking, but a judicial taking that violates the public use clause, because the only beneficiary of the Washington Supreme Court's judicial largess is the encroaching owner. Under the Kennedy/Sotomayor view in Stop the Beach Renourishment, this might not be a legitimate function of the state supreme court, even when it is exercising its equitable powers.

Will there be a cert petition, asking the other "Washington" Supreme Court to revisit the issue in Stop the Beach Renourishment? Stay tuned.

Upcoming ABA Panel On The Judicial Takings Case (San Francisco 8/6/2010)

This Friday, August 6, 2010 from 2:30 - 4:00 p.m. as part of the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of what was, in my opinion, the most fascinating case of the Supreme Court's recently-concluded term, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010).

This Term, the Court dealt with corporate speech, guns, "crush videos," process patents, and Sarbanes-Oxley, but in Stop the Beach Renourishment, the Court attempted to tackle the most metaphysical of questions: can a state supreme court decision "take" property by changing the law? In the case, the Court came tantalizingly close to holding that a state supreme court decision can run afoul of the Fifth Amendment's Takings Clause and take property without just compensation. The Court concluded that the Florida Supreme Court's decision didn't, but four justices set out their theory of judicial takings, two justices argued these situations should be analyzed as substantive due process questions, and two justices concluded "not now, but maybe later."

I'll be moderating the expert panel: Jim Burling (Pacific Legal Foundation), John Echeverria (Vermont Law School), Richard Frank, University of California Boalt Hall Law School), and Dan Stengle, (Hopping Green & Sams, Petitioner's counsel). Each of us filed briefs in the case, and it promises to be an informative and spirited discussion. With the Court leaving us hanging, our panelists will not only be discussing the case as decided, but will provide insight for what the next case may bring.

Mark your calendars, and come join us in Yosemite Room B, Ballroom Level, Hilton San Francisco Union Square. More information here.

Ninth Circuit Posts Video Of Guggenheim (Rent Control Takings Case) En Banc Oral Arguments

Last month, we attended the oral arguments in the rehearing en banc of Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009).

The three-judge Ninth Circuit panel held 2-1 that a takings challenge was ripe under Williamson County, and ruled the City of Goleta, California's ordinance was a facial taking by applying the three-part Penn Central test. The court remanded the case to the district court for a calculation of compensation owed to the property owners. On March 12, 2010, the court ordered en banc review.

Our summary of the oral argument is posted here. Today, the court posted the video from the hearing, complete with 24-style split screen. Check it out for a rare cameras-in-the-courtroom view of a federal appeals court in action.

Event: The Supreme Court And The Battle For Second Amendment Rights

Last night, I had the opportunity to attend The Supreme Court and the Battle for Second Amendment Rights, a discussion of the U.S. Supreme Court's two recent Second Amendment opinions, District of Columbia v. Heller (2008), the case in which the Court affirmed that the right to keep and bear arms is an individual right, and last term's McDonald v. City of Chicago, which held that the Second Amendment was applicable to state and local governments via the Fourteenth Amendment's Due Process Clause. The event was sponsored by the Independent Institute. 

We obviously do not focus on the Second Amendment on this blog (being much more concerned with the Fifth Amendment than the Second), but McDonald in particular captured our attention since the petitioner's main argument in that case was that the Fourteenth Amendment's Privileges or Immunities Clause (and not only the Due Process Clause) prohibits state and local governments from infringing the right to keep and bear arms. For all you Con Law wonks, that would mean that the P or I Clause incorporates the entire Bill of Rights against the States, not selective incorporation pursuant to the the Due Process Clause (as we all were taught in law school). Back in February, our colleague Mark Murakami moderated a panel of experts in an ABA-sponsored conference previewing the arguments and the possible broad ramifications if the petitioner's argument were accepted, so we were naturally interested in what others thought of the case now that opinions have been rendered.

Check out the video if you are interested.

Review Of The Supreme Court's Term 2010 - Northern District Of California Chapter, Federal Bar Association Event

Thanks to the Federal Bar Association (Northern District of California Chapter), today I had the pleasure of attending a panel discussion of the significant cases from the Supreme Court's recently ended Term.

The panelists discussed "Guns, Free Speech, Criminal Justice, Campaign Finance, Separation of Powers ... and 'Inside Baseball' Views of the Court and Docket" in a packed courtroom at the Ninth Circuit's San Francisco courthouse. The panel was comprised of experienced appellate and Supreme Court advocates, and shared their insights on the "headlines and highlights" of the Term: 

• Hon. Marsha Berzon, Judge, U.S. Court of Appeals for the Ninth Circuit, and former clerk to Justice Brennan

• Professor Rory Little, U.C. Hastings College of the Law, Of Counsel to McDermott Will & Emery, and former law clerk to Justices Brennan, Stevens, and Stewart (ret.)

• Kristin Linskley Myles, Munger Tolles & Olson LLP, and former law clerk to Justice Scalia

• Professor Anne Joseph O’Connell, U.C. Berkeley Law School and former law clerk to Justice Ginsburg

More here from the Ninth Circuit's web site. There was too much information disseminated in the hour-and-a-half session to recount it all here, so we'll stick to the more interesting. [Barista's note: it was somewhat difficult to hear the speakers since the audio volume seemed not to be on full; any errors in this recounting are purely mine.] Professor Little, who moderated the panel, started off with some statistics: the Court issued 72 opinions in cases with argument, 12 in cases without argument, and decided 86 cases on the merits. This is an increase in caseload from recent years, but nowhere near the output of the Court during the time Professor Little was a law clerk (he mentioned that the Court in those days decided roughly 160 cases per Term).

The most interesting statistics were the breakdowns in voting patterns. Unanimous opinions accounted for 46% of the decided cases, up from 33% last term. And only 18% were by a 5-4 margin (down from 30% last term). Professor Little noted that this might be the product of Chief Justice Roberts who, at his confirmation hearings, said (and I am paraphrasing here) that one of his goals was to try and produce more opinions that were the result of consensus and not a divided Court. Another interesting tidbit was that this Term was one where the Chief was in the majority more often than Justice Kennedy, and it is the first time in a long time that Justice Kennedy has not controlled. Perhaps this is becoming the Roberts Court more than the Kennedy Court. Now-retired Justice Stevens had the most dissents, while Justice Thomas kept his legacy intact by not asking a single question at oral argument (as far as anyone is aware). Justice Sotomayor is a strong presence at oral argument, like Justices Scalia and Breyer.

One final statistic of note, especially to those of us who practice primarily in the Ninth Circuit: we're no longer the black sheep of the federal courts. Yes, we continue to lead in the sheer number of reversals (but that is likely attributed to the fact that the circuit is by far the largest). But as a percentage, the Ninth Circuit last Term had a reversal rate that was lower that 1/2 of the other thirteen circuits (60% reversals vs. 70% overall).

On to the cases. 

We won't go into great detail on the speakers' thoughts on each of these cases (each case has generated much more analysis and commentary than the speakers could cover in a their allotted 12 minutes, or that we can recount here), so will simply note which cases each found important and perhaps relay a thought or two.

Judge Berzon discussed three cases on vagueness and overbreadth (due process: the "crush video" case (United States v. Stevens), the "material support for terrorists" case (Humanitarian Law Project v. Holder), and the "honest services" case (United States v. Skilling). No Justice was consistent across the three cases, and the supporting rationales were "all over the lot." I don't suppose that was too surprising, given the difficulty the Court has had in the past with establishing consistent standards for when a statute is unconstitutionally vague or overbroad.

Professor O'Connell focused on two administrative law cases, Free Enterprise Fund v. Public Company Accounting Oversight Board and New Process Steel v. National Labor Relations Board, and a civil procedure case, Hertz Corp. v. Friend. The Free Enterprise case invalidated a provision in the Sarbanes-Oxley Act detailing the process for removing a member of the PCAOB, while New Process Steel invalidated the NLRB's stop-gap procedures for dealing with vacancies on the Board. Hertz settled a long-standing circuit split about where a corporation's principal place of business is for diversity jurisdiction purposes (it's the "nerve center").

Ms. Myles went into some depth on the "corporate speech" case, Citizens United v. Federal Election Commission, an opinion focused on the scope of the First Amendment, and on government regulation of the political process. She also detailed the case involving U.C. Hastings Law School's denial of recognition to the Christian Legal Society because it ran afoul of Hastings' "all comers" policy, Christian Legal Society v. Martinez.

Professor Little finished off by pointing out that McDonald v. City of Chicago (the Second Amendment case) was not just an important case for this Term, but is one of the more important cases in quite a while, and described Justice Thomas' opinion as "one of the most interesting Constitutional discussions you will ever read." I must say that I agree with that one. He also singled out Graham v. Florida, the case in which the Court held that the Eighth Amendment forbids a life without parole terms for a juvenile convicted in a non-murder case, and the "business methods patent" case, Bilski v. Kappos. 

Again, thanks to the Federal Bar Association for putting on such an informative event.

More On The "Judicial Takings" Case (Stop The Beach Renourishment)

More on the "judicial takings" case, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010).

Remember that at the ABA Annual Meeting next month in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of the case. I'll be moderating, and Jim Burling (Pacific Legal Foundation), John Echeverria (Vermont Law School), Richard Frank, University of California Boalt Hall Law School), and Dan Stengle, (Hopping Green & Sams, Petitioner's counsel) are on the panel. If you are coming to the meeting, mark your calendar for August 6, 2010 from 2:30 - 4:00 p.m. at the Hilton San Francisco Union Square. More information here.

Anyway, here are the links:

• Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection - Post-Decision SCOTUScast (Federalist Society) - featuring Jim Burling

• A little more on Stop the Beach Renourishment (SCOTUSblog)

• 'Judicial Takings" Still Unresolved by High Court Ruling (Law 360)

• Federalism and Judicial Enforcement of Constitutional Property Rights (The Volokh Conspiracy - Ilya Somin

New Article On Legislative-Adjudicative Distinction In Nollan/Dolan Analysis

Heads up on a new article of interest to those of us who deal with exactions and Nollan/Dolan: Matthew Baker, Much Ado About Nollan/Dolan: The Comparative Nature of the Legislative Adjudication Distinctions in Exactions, 42 Urban Lawyer 171 (2010). Here's a summary: 

Much has been made, by both commentators and courts, of the distinction between legislative and adjudicative land use exactions used to determine whether an exaction must meet the "essential nexus" requirement of Nollan v. California Coastal Commission and the "rough proportionality" test of Dolan v. City of Tigard. But practical application of the distinction has been anything but simple, only adding to the "mess" and "muddle" of Takings Clause jurisprudence. While exactions jurisprudence is admittedly messy, the apparent analytical incoherence results primarily from the confused and inconsistent application of the Nollan/Dolan test by lower courts, which would no doubt prefer a more clear and predictable standard of review. Part I of this article briefly describes the Nollan/Dolan analysis and the legislative-adjudicative distinction set forth in Dolan. Part II discusses the divergent approaches to the distinction among the lower courts and outlines the major academic criticisms of the legislative-adjudicative distinction, including several alternative standards. Part III then argues that the legislative-adjudicative distinction is essentially a functional, comparative inquiry into whether the burden imposed by the exaction to achieve a public benefit is being broadly shouldered by the community, or unfairly shouldered by a small group within the community. As a threshold inquiry, the distinction seeks to preserve a measured deference to government in the exactions context. Part III also briefly states the theoretical basis for a comparative analysis of exactions.

The article is available here (may require ABA membership). The article is the winner of the 26th Smith-Babcock-Williams Student Writing Competition.

Book Review: Federal Land Use Law and Litigation, 2010 edition

I've just received my copy of the 2010 revision of Federal Land Use Law & Litigation by Brian W. Blaesser and Alan C. Weinstein (West, $225).

Here's the description of the book from West's site:

Examines all federal, constitutional, and statutory limitations on local land use controls, discussing cases, regulations, liability, defense strategies, doctrines, and antitrust restrictions. Comprehensively reviews Supreme Court and lower federal court decisions that consider the constitutionality of land use regulations. Discusses complicated free speech issues affected by federal land use law, and municipalities exercising home rule powers. Examines issues such as: constitutional and statutory limits, First Amendment limitations on land use controls, federal remedies and attorney's fees, liability and immunity issues, litigation guidelines, zoning, subdivision controls, growth management, model complaints, and selected constitutional and statutory decisions.

Federal Land Use Law & Litigation is an eminently useful single-volume research and reference guide. It's well-organized, and although it is a specialty book and it is helpful to have a base understanding of the topics, it covers the most frequently-occurring issues in land use litigation in an understandable and easy-to-follow fashion. Chapter 3 on Regulatory Takings contains a particularly good summary of the current state of doctrine, and a concise chronological overview of the critical cases, beginning with the foundation cases in the early 20th century (Hadacheck, Mahon, Euclid) and continuing to the present.

This is one that will continue to have a place on my back bookshelf, along with other such must-haves as Steven Eagle's Regulatory Takings, the latest "green book" (Patricia Salkin's yearly Zoning and Planning Law Handbook), and Norman Matteoni's Condemnation Practice in California.

Federal Land Use Law & Litigation is available for purchase via West here.

Final Brief In Torrens Title And Public Trust Appeal

The State of Hawaii has filed a brief responding to the amicus brief we filed in June in In re Trustees Under the Will of the Estate of James Campbell, No. 30006, an appeal now under review by the Hawaii Intermediate Court of Appeals. The issues in the case include the nature of "Torrens" title and the scope of the "public trust" in water resources.

Hawaii is one of the few remaining states retaining its Torrens system of title registration (two others are Massachusetts and Minnesota). We call it "Land Court," a system in which the State guarantees indefeasible title to the rights and interests reflected in the title register. In Campbell, the State of Hawaii claims that title to property on Oahu's north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State's ownership of "all mineral and metallic mines of every kind or description on the property, including geothermal rights," and is subject to a flowage easement in favor of the State by virtue of the State's duties as trustee of the public trust in water resources.

The case arose when the Campbell Estate submitted a petition to the Land Court in 2009 to consolidate and subdivide its land, and the State appeared and asserted its claims. The State argued that despite the 1938 Land Court registration of the land, Campbell's title never included mineral and mining rights the State reserved to itself, even though the State's predecessor (the Territory of Hawaii) appeared in the 1938 proceedings and asserted other claims, and Campbell's title was confirmed to be free of all unregistered interests, including the Territory's. The Land Court disagreed, and held that the State's claim of mineral rights was extinguished by the court's 1938 judgment (decree), and that Campbell's title was free of a flowage easement. The State appealed to the Intermediate Court of Appeals. 

The other briefs in the case (ours included) are here:

• State of Hawaii's opening brief

• Campell Estate's answering brief

• Pacific Legal Foundation's amicus brief

• State of Hawaii's brief replying to PLF amicus

The ICA has not set a date for oral argument or a decision.

Guest Post: Beach Decision Draws No New Line In Sand

Today, we bring you guest commentary on Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-1151 (June 17, 2010), last week's Supreme Court decision on judicial takings and ownership of replenished beaches. 

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Beach Decision Draws No New Line in Sand

But high court launches debate about topic of judicial takings

By DWIGHT MERRIAM

On June 17, the U.S. Supreme Court handed down its decision in Stop the Beach Renourishment, its first property rights case since Kelo, Lingle and San Remo five years ago. The pundits pounced. Even the New York Times jumped on the dog pile with an editorial decrying Scalia’s promotion of judicial takings as "harebrained."

The reaction is mostly overblown. This is a case the Court should not have taken. The Florida Supreme Court correctly decided the takings claim with a well-reasoned, rational analysis consistent with Florida precedent.

Coastal property owners had challenged a Florida statute which permanently fixed the historic high tide line (they call it the "Erosion Control Line," or ECL under the law). The state set that line because it is spending real money piling sand onto eroded beaches and officials don't want that dynamic line moving in and out with erosion and accretion (the gradual deposition of sand by natural forces).

The property owners said the ECL takes away their right to gain new dry land created by the state filling seaward of the high tide line and by accretion. They also claimed that the statute takes their littoral right of direct, physical access to the water, which would be interrupted by the state’s new strip of dry land created by filling and any accretion.

The Florida Supreme Court held for the state – there had been no taking under the state's established common law precedents regarding property rights along changing coastlines. The U. S. Supreme Court agreed 8-0.

Scalia Pushes Point

Justice Antonin Scalia had been itching for a judicial takings claim since the Court denied certiorari in Stevens v. Cannon Beach (1994). You probably haven’t heard of "judicial takings." A run-of-the-mill regulatory taking claim is the result of legislative or executive branch action. The theory of judicial taking is that a court can also take your property by interpreting and applying the law contrary to precedents. This is the first judicial takings case for the Court, though former Justice Potter Stewart referred to the concept in his concurrence in Hughes v. Washington (1967).

After upholding the Florida law, the Court didn’t need to decide whether there could ever be a judicial taking. But Scalia wouldn’t let go and enlisted Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito in support of his cause:

"States effect a taking if they recharacterize as public property what was previously private property. …The Takings Clause [in the Constitution]… is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor (‘nor shall private property be taken’ (emphasis added)). There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation."

Justice Anthony Kennedy, joined by Sonia Sotomayor, in a concurring opinion challenged the idea and argued that such cases should be analyzed under the Due Process Clause. Kennedy, as the swing voter on the Court, is the one to watch. Sotomayor is difficult to predict, but it is interesting she sided with Kennedy, not Justice Stephen Breyer. Kennedy left the door open for a judicial taking claim:

"If and when future cases show that the usual principles, including constitutional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented."

By my count that makes the numbers presently and potentially amenable to judicial takings as four plus two. Breyer, joined by Justice Ruth Bader Ginsburg in another concurring opinion, simply said that it was unnecessary to reach the issue of judicial takings.

Justice John Paul Stevens did not appear at oral argument and didn’t vote, after a Cato Institute scholar circulated documents indicating Stevens owned a waterfront condominium in Florida in a beach renourishment area. He had also recused himself in an Iowa right-to-farm case 11 years ago at a time when he owned a 200-acre farm there.

By not participating, Stevens surrendered his right as the senior justice in the majority to pick who would write the opinion, the assumption being that it would be a 5-3 vote for the government with Kennedy or Scalia the senior justice for the majority and the chief justice joining the dissenters. With the 8-0 vote, the chief justice gave the job to Scalia, who ascended to the bully pulpit to press ahead on the judicial takings front. From that advantageous position he chose to tweak Breyer for arguing that the plurality should not address issues "better left for another day":

"One cannot know whether a takings claim is invalid without knowing what standard it has failed to meet. Which means that Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the ‘unnecessary’ constitutional question whether there is such a thing as a judicial taking."

The winners here include the states because the Court has shown deference to the common law of Florida. Property rights advocates came out of this intact – they could have lost it all if the Court was forced to decide whether judicial takings really exist and they found they did not. Had Stevens not bought that condo years ago, the outcome might have been different. Government sort of won because of the unanimous decision of no taking and the 4-4 standoff on the judicial takings issue creates no precedent, but will there now be more attempts to bring judicial takings claims? •

The decision is available here.

Reprinted with permission, Connecticut Law Tribune, June 28, 2010.

The above is a companion piece to a preview of the case published earlier in the CLT, A Hard Line In the Sand, (Apr. 12, 2010) (also reprinted with permission).

Friday's Columbia "Blight" Case (Kaur) Links

Here's a round-up of reports and analysis of yesterday's opinion by the New York Court of Appeals in the "Columbia U. blight" case, Kaur v. New York State Urban Development Corp., No. 125:

• "Judicial review of eminent domain in New York is fundamentally broken" - Damon W. Root (Reason blog)

• Court of Appeals, citing precedent in Atlantic Yards case, overturns lower court ruling blocking eminent domain for Columbia expansion - Norman Oder (Atlantic Yards Report)

• New York Court of Appeals Backs Eminent Domain Use in Columbia Expansion (WSJ Law Blog)

• New York High Court Upholds Columbia University Takings - Ilya Somin (The Volokh Conspiracy)

• NY Court of Appeals decides Columbia U. Eminent Domain case - Matthew Festa (Land Use Prof Blog)

• N.Y. Court of Appeals Reverses Appellate Division and Says Columbia University Condemnation May Proceed (New York Zoning and Municipal Law Blog)

• Universities and Eminent Domain - Ilya Somin (The Volokh Conspiracy)

• New York's Eminent Domain "Blight" Grows - Jonathan Tobin (Contentions)

• Columbia Expansion Backed by New York's Top Court (Bloomberg)

There Really Are No Limits To Eminent Domain In New York - Court Of Appeals Reverses The Columbia Case (Kaur)

The New York Court of Appeals today reversed the Columbia "blight" case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010). The unanimous opinion came swiftly (oral arguments were just under a month ago), suggesting it was not a close call for the court. Here's the Appellate Division's opinion.

We haven't had time to digest it, and there certainly will be a round of analysis and opinion on the case, but here's the introductory paragraph of the court's opinion:

In this appeal, we are called upon to determine whether respondent's exercise of its power of eminent domain to acquire petitioners' property for the development of a new Columbia University campus was supported by a sufficient public use, benefit or purpose (see New York Const art I, § 7 [a]; Eminent Domain Procedure Law 207 [C] [4]). We answer this question in the affirmative and conclude, pursuant to our recent holding in Matter of Goldstein v New York State Urban Dev. Corp. (13 NY3d 511 [2009]), that the Empire State Development Corporation's ("ESDC") findings of blight and determination that the condemnation of petitioners' property qualified as a "land use improvement project" were rationally based and entitled to deference. We also conclude that the alternative finding of "civic purpose," likewise, had a rational basis.

Slip op. at 1-2.

The court's recent opinion in the Atlantic Yards case (Goldstein) was always going to be this case's biggest hurdle. But Kaur's posture and the developed record were thought to perhaps distinguish it from Goldstein. Not so.

You've got to wonder whether there are any limits on eminent domain in New York. Today, it looks like there are not.

Oral Argument Recording In Ninth Circuit Rent Control Taking Case (Guggenheim)

Yesterday, we attended and posted a long summary of the en banc oral arguments in Guggenheim v. City of Goleta, the case challenging the city's mobile home rent control ordinance as a regulatory taking, now pending in the Ninth Circuit.

Today, the court posted the sound recording of the argument.

Download it here (caution, it is a 23 MB wma file, meaning you'd best have a broadband connection and a Windows Media Player).

The argument was also broadcast from the Pasadena courthouse to the San Francisco, Portland, and Seattle courthouses, so we're hoping that the video is eventually posted. The issues in the case aside, it was a very good example of high-level appellate advocacy.

Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. III

Continued from Part II

The court was not much easier on the City's attorney, even though one might think that the hard time they gave the property owners' counsel indicated they were more sympathetic to the City's arguments.

Right off the bat, Judge Callahan asked Schwartz whether he "conceded" [appellate advocate alarm bells going off] that there can be a facial Penn Central taking. This seemed to be a response to Judge Rymer's questions to the property owners' lawyers of whether "there is such an animal." If Schwartz were to concede it, issue gone. He did concede it, but only barely. "Yes," he answered, there can be such a thing, but it is difficult to imagine it, since the Penn Central test is "an ad hoc, factual inquiry." Judge Callahan asked whether the Penn Central factors "bleed over to the merits" of a facial challenge, and whether the court looks at them different when it is a facial challenge.

Schwartz -- as he would do many times during his 30 minutes -- referred to the Supreme Court's 2005 Lingle case, and argued that in that case, the Court held that a court's role is to determine whether a regulation is so onerous that it is the "functional equivalent" of an exercise of the eminent domain power. That elicited a question from Judge Bea about whether there can be a partial taking, and whether Schwartz was arguing that a regulation must take 100% of the use of property, or nearly that amount. When Schwartz answered affirmatively, Judge Kleinfeld asked whether that meant that the government could just take an easement without paying for it.

Schwartz responded that a taking of an easement would be a physical takings, covered by other rules, but Kleinfeld questioned that response. What about an easement for energy transmission lines -- that would not be (just) a physical take since it would also impact the property owner's use of its land? It sounds like, he remarked, that you are arguing that Lingle overruled Penn Central.

Then, in one of those memorable appellate argument moments, Judge Kleinfeld stated to Schwartz that "I would have thought that you'd be more interested in the limitations issue." Rather than responding directly, Schwartz again returned to Lingle, arguing that for a regulation to work a taking under Penn Central, it must be the "functional equivalent" of eminent domain. The economic impact must be "extreme," he argued, to which Judge Kleinfeld responded "this is extreme," and noted that mobile homes that should sell for tens of thousands of dollars instead are sold for hundreds of thousands, because of the rent control ordinance. "No," Schwartz responded, "the ordinance has no impact."

Judge Clifton circled back to Judge Kleinfeld's comment about the statute of limitations issue. "Why are you taking on the harder task" of defending the ordinance on the merits when you have the limitations issue, he asked. Judge Bea jumped in: your test is that in order to be a facial taking, an ordinance must expressly say "this is a facial taking." Judge Clifton also asked about the "no impact" statement, asking whether an 80% diminution of value would be "extreme enough."

Judge Reinhardt threw the first of his several softball "questions" to Schwartz, stating that he "gathered you are making this argument [the merits, and not the statute of limitations argument] because Judge Kleinfeld asked you." Judge Ikuta followed up, noting that the statue of limitations issue was the "most troubling." The property owners are claiming a taking at the time of enactment of the rent control ordinance in 2002; what is the "best case," she asked, for whether a different government (City, as opposed to County) adopting a new ordinance. In other words, "when did the cause of action accrue?" Schwartz answered that the plaintiffs assert it was in 2002. Judge Ikuta asked "so why not accrue at that point?" to which Schwartz responded that the City was not asserting the statute of limitations, but was arguing no taking on the merits. Judge Kleinfeld could not resist interjecting "so you don't want to win on the statue of limitations theory," which elicited the biggest audience laugh of the day. 

Judge Rymer focused on the same issue she started off the day with. She asked whether the "distinct" investment-backed expectations referred to in Penn Central meant that the takings inquiry always focused on the plaintiff's property interest. Judge Callahan interjected to remind the panel that Schwartz had already conceded that there was such a claim. Chief Judge Kozinski then turned it on, asking Schwartz to "stretch your imagination" and articulate a situation in which there would be such a claim. Start with the extreme and work your way back: would it be if a government regulation required a building owner to leave her property vacant? Schwartz answered that the court would still apply the Penn Central factors, and if it turns out the regulations prohibited "profitable" use, it "could very well be" a facial Penn Central taking. "'Could very well be' is as close as you're going to get," Kozinski replied, and even Judge Kleinfeld posing a hypothetical about a regulation prohibiting all development within one mile of a river could not get Schwartz to concede more. "What would it take to make you say 'yes?'" Chief Judge Kozinski asked, to which Judge Callahan remarked "that's a little like 'we're here from the government, and we're here to help!'"

This exchange seemed to trigger Judge Kozinski's focus on whom the transfer of value benefitted. He noted that in Penn Central, the prohibition on building benefited the public, and not (as in this case) identifiable others. Here, he argued, the regulation took the value from the park owners and transferred it to the mobile home tenants. [Barista's note: this sounds like the prohibited "A to B" private taking which even after Kelo survives as a Fifth Amendment claim.] Schwartz didn't seem quite to know how to answer this, and Judge Reinhard quickly came to his rescue, asking whether the plaintiffs must concede the public nature of the the alleged taking, and whether there were any cases in which a private party stood to benefit. Don't all rent control ordinances benefit private parties, he asked. Indeed, don't minimum wage laws transfer value from employer to employee?

Schwartz referred to Pennell (a non-mobile home rent control case). Chief Judge Kozinski wasn't quite satisfied. This isn't like non-mobile home rent control; can't a tenant sell his "piece of tin" for much more than it's truly worth? When Schwartz responded that a California statute left intact vacancy control, Kozinski cut him off with "the real answer is 'no,' Pennell is not applicable." Judge Kleinfeld also noted that the economic impact of the regulations here were "cataclysmic," and disputed Schwartz's statement that the ordinance had "no" economic impact, not an extreme one. In his final answer before his time expired, Schwartz admitted that at the imposition of the County rent control ordinance in 1985, park owners lost value.

The property owners' counsel returned for a short rebuttal, and elicited a huge laugh in the courtroom when he responded to Chief Judge Kozinski's comment that although he had approximately two minutes, he could get "into infinite trouble" in that time. Coldron quipped that his time was not "infinite," but was "substantial" (referring back to the "substantial gap" in time between the expiration of the County's rent control ordinance, and the imposition of the City's). He concluded by pointing out that the "economic impact" factor is but one of three Penn Central factors, and that none of them is dispositive.

The case was submitted, and the court adjourned for the day.

Some stray thoughts:

First, even though the judges were at times pretty brutal on the advocates, I appreciated the fact that before the hearing commenced, Judge Smith (sans robe) walked in the courtroom and introduced himself to arguing counsel. "In Idaho, we do that," he said, "but they don't do that here." A nice touch.

Second, it seems that the tests for regulatory takings are confusing, even to federal appellate judges; at times, they made statements reflecting a misunderstanding of the current state of the law. Not surprising, given that the Supreme Court has not been able to settle on hard core doctrine, and even now -- some 80+ years since the modern recognition of the doctrine in Pennsylvania Coal v. Mahon -- we're still arguing about whether a property owner has a cause of action.

Finally, its impressive to see quality advocates in action. Thirty minutes per side in a toe-to-toe with eleven federal judges is something that can shake even the most experienced advocate. Both counsel handled themselves with aplomb and professionalism.

Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. II

Continued from Part I

Coldron seemed to sense that the court was in danger of veering off track and buying into the argument in the amicus brief filed by the League of California Cities and California State Association of Counties in support of the city about the claim being time-barred. Judge Clifton returned to his initial barrage of questions and asked whether the ordinance was the same after the City incorporated, and whether the park owners were seeking a "windfall" from that event. Recall that Goleta was originally not an incorporated city, so these parks were subject to the County's mobile home rent control ordinance. When the City incorporated, the County ordinances continued in effect for a time, and after a gap (another issue in contention), the new City of Goleta adopted its own mobile home rent control ordinance.

Coldron responded to Judge Clifton's question by noting that "there is no expiration on Constitutional rights," a quote from the U.S. Supreme Court's Palazzolo case. Judge Clifton was not pleased, and snapped "that's not an answer." "You must acknowledge facts," he stated, "answer the question: is there anything different between the County and the City rent control regulations." Coldron answered "no." Judge Rymer jumped back in and asked whether there was any different in economic effect on the face of the ordinance. Coldron responded that there was no difference. 

Judge Kleinfeld, who dissented from the panel opinion, posed a hypothetical that went to what was being referred to as the "statute of limitations" issue (more correctly, it is a question of "property" and "notice" and whether a purchaser of property who buys after a regulatory scheme is in place may bring a claim that the regulation is a taking). Let's say the state builds a road in the 1970's that encroaches on my property, he asked. I do nothing since my property is not worth too much, and I don't want to pay my lawyer to bring an inverse condemnation claim. Time passes and I sell it to you, but in the meantime, the property has become quite valuable, and it is worth your time to pay your lawyer to bring an inverse condemnation claim against the state. "It seems quite clear," Judge Kleinfeld stated, "that the seller could have sued for a taking many years ago, but didn't. I don't see where this case is any different." The unstated part of his hypothetical was that having let the time pass without suing, the seller did not transfer that right to the buyer.

Coldron agreed with the first part (that the buyer could not sue), but took issue with the second, arguing that the hypothetical was different than the case before the court. [Barista's note: this is somewhat dangerous territory for an appellate advocate - usually when judges ask hypotheticals, they want them answered and can get testy if you respond "well, judge, that's not our case." I've heard judges snap back "of course it's not this case, it's a hypothetical!"] However, Coldron avoided that, and his answer was quite effective; he stated that for Judge Kleinfeld's hypothetical to truly be like the present case, the state would have to remove the encroachment for a time, and then attempt to put it back after the buyer purchased the land (see paragraph 1 above).

Next, Judge Kleinfeld and Coldron got into an exchange about the length of the gap. Judge Kleinfeld asked whether it was "a couple of hours" between the County's rent control ordinance expiring, and the new City's rent control ordinance becoming effective. Coldron asserted that was not true, that it was not, as argued by the City, a "moment in time," and that the gap was actually "significant" since it was minimum two months, and up to four. Kleinfeld asked whether the County's ordinances were readopted "as a matter of law," to which Coldron responded that they were, but that there was still a gap where the mobile home parks were not subject to any rent control ordinances at all. Besides, he argued, the City could have not adopted a mobile home rent control ordinance at all (as his clients had urged the City), so there was nothing in the gap period that would suggest their property continued to be the subject of these regulations.

Judges Smith and Clifton sought clarification. Judge Smith asked whether there was any point in time where the mobile home parks were not subject to some kind of rent control ordinance. Coldron answered that in this case, the City stipulated that there was a gap, and that the stipulation controls. Judge Clifton asked whether during that time, the mobile home park owners went up on the rent (since there was no rent control ordinance in effect). Coldron replied that no, there was no increase because state law prohibited it.

Judge Kleinfeld reentered the fray. "I don't see how Palazzolo helps," he stated, and he attempted to distinguish the facts of that case. Palazzolo involved a property owner who didn't keep up on the corporate formalities, he argued. Thus, the Supreme Court held that he was entitled to bring the claim, even though it was technically a different entity that owned the property when the cause of action accrued. That is a different case than here, where the mobile home park was purchased by an entirely different owner. When Coldron again raised the "no expiration date on Constitutional rights" quote, Kleinfeld responded that the court "enjoys rhetorical flourishes," but that facts would be more helpful.

In the last exchange before the City's argument, Judges Kleinfeld and Smith asked Coldron about the record. And in one of those moments that all appellate advocates dread, they asked not just generally about the record, but for specific page citations. Judge Smith asked whether there was anything in the record to support the idea that the property was worth more before the City ordinance. Coldron responded that Dr. Quigley had testified that it was, and that his testimony went unchallenged.

Judge Smith: What part of Quigley's testimony?

Coldron: Where he testified to a 90% drop in value.

Judge Smith: That's general.

Coldron: Quigley's testimony was not rebutted, so it must be accepted.

Judge Kleinfeld: What page of his testimony? I have it here in front of me. Where?

Coldron: In the September 6 order of the court, the court found this testimony was not rebutted. But I can't tell the page number.

Chief Judge Kozinski: It must not be important if you can't tell where it is.

[Barista's note: It is an old adage of appellate lawyers that they must "know the record, inside and out." Yet, it's hard to fault Coldron (asking for a page number in a trial record is awfully nitpicky) and it seemed a bit unfair of the court to harp on him about this. This case has not been a straightforward motion, trial, and appeal. Because of the maze of procedural hurdles erected in front of takings claims by the U.S. Supreme Court and the California courts, this litigation has stretched over years and has involved several jurisdictions. Trying to intuit what one judge out of eleven may consider important during your thirty minute argument could be asking for the advocate to go from well-prepared to superhuman.]

Next, the City's argument in Part III.

Ninth Circuit Rent Control Taking Case (Guggenheim) En Banc Oral Argument Report pt. I

Even in the rarefied, academic atmosphere of an appellate court, an advocate must sometimes have a thick skin. Today's Ninth Circuit en banc oral arguments in the rent control takings case, Guggenheim v. City of Goleta, was one where the two lawyers who argued the case certainly came away with a few callouses. 

Guggenheim is the appeal from an unsuccessful challenge to the City of Goleta's mobile home rent control ordinance. The district court ruled against the mobile home park owners who asserted the ordinance worked a regulatory taking of their property.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge Ninth Circuit panel reversed, however, and held 2-1 that the challenge was ripe under Williamson County, and ruled the ordinance was a facial taking by applying the three-part Penn Central test. The court remanded the case to the district court for a calculation of compensation owed to the property owners. On March 12, 2010, the court ordered en banc review.

Today's argument was an en banc panel comprising eleven active Ninth Circuit judges (the circuit is so large that "en banc" in the Ninth Circuit doesn't truly mean en banc, but means a panel of eleven active judges). Chief Judge Kozinski was seated front-and-center, and the other ten judges were seated by seniority, alternating between right and left on the bench. Also on the panel were Judges Godwin, Reinhardt, Rymer, Kleinfeld (who dissented from the panel opinion), Gould, Clifton, Callahan, Bea, Ikuta, and N.R. Smith. Robert S. Coldron argued for the property owners, and Andrew W. Schwartz for the City. 

The judges wasted no time in their aggressive questioning of Coldron. He was barely a sentence into his argument when Judge Clifton drew first blood. He asked whether the mobile home park owners acquired the property subject to the regulations claimed to be a taking. The answer to that question, as we shall see, turned into a contentious issue that stretched the length of both parties' arguments. Coldron answered that in 1997, the park owners could not have sued the County of Santa Barbara (the government which imposed a similar rent control ordinance on mobile home parks prior to the incorporation of the City) since more than two years had passed since the County ordinance had been adopted, and the two year statute of limitations for a facial challenge to that ordinance had lapsed. Judge Clifton seemed somewhat irritated with the answers. Judge Clifton did not expressly articulate the source of his question, but appeared to be focusing on whether the plaintiffs had "property," or whether, by having purchased their property already subject to the regulatory regime (allegedly), they were on notice, so to speak, of the restrictions and should not be heard to complain now.

Judge Rymer wanted the answer to a more basic question: she asked whether "there is any such animal" as a facial taking under Penn Central, and if so "precisely, what is it?" Coldron answered by giving examples. In Hodel v. Irving, he asserted, the Supreme Court found a facial taking (this is one of the cases involving Congress' taking of fractionalized Indian interests in land). He also cited the Cienega Gardens case from the Federal Circuit as another example.

Judge Reinhardt challenged Coldron, and asked whether it was correct when he asserted that no one would buy a mobile home park. "Were the regulations in effect when your client bought the property?" "Most," Coldron responded, and started a back-and-forth where Judges Reinhardt and Kozinski tried to pin him down regarding exactly what was different about the regulations in place when the plaintiffs purchased their parks, and the regulations being challenged. Coldron gave several examples, but aroused the sarcasm of Judge Kozinski when he asserted that when he started practicing 30 years ago, the rent control laws were only two pages, but today they are 30 pages. "So it's a matter of pages?" Kozinski remarked, causing the courtroom to laugh, "can you be specific?"

Judge Rymer went back to her earlier question about whether there is "such an animal" as a facial Penn Central takings claim. "What is your precise challenge?" she asked. "What in the ordinance makes it invalid on its face?" Coldron seized on the question to explain. First, he responded, it froze the rent in 2002 at a fraction of 1979 values, with no adjustment. Second, it was a "negative wealth transfer" from the park owners to the mobile home owners, without any social benefit.

Continued in Part II.

NJ Supreme Court And The "Bizarre Condemnation" - Klumpp v. Borough of Avalon

The New Jersey Supreme Court today issued a unanimous opinion in Klumpp v. Borough of Avalon, No. A-49-09 (Jun. 22, 2010), the case the New Jersey Law Journal described as the "bizarre condemnation" after the Appellate Division held that the government can assert inverse condemnation in order to take property without compensation. 

It's a detailed opinion, and we will post more details after we've had a chance to digest it, but here's the bottom line:

• The Borough placed a dune on the plaintiffs' property in 1965, fenced it off to limit public access, and constructed an access path from the street to the beach over the property. A physical taking occurred no later than that date.

• If the government takes property without undertaking eminent domain, the property owner can bring an inverse condemnation action. The statute of limitations for such claims is six years.

• However, equity demands that the property owners are not barred from bringing an inverse condemnation claim. Until 2005, the Borough maintained that no taking had occurred. It was only after the plaintiffs filed suit did the Borough claim it owned the property by adverse possession. Because of the Borough's position, plaintiffs understandably demanded access to their property and filed claims for trespass and ejectment. After finally conceding, in 2005, that a taking occurred forty-three years earlier, the Borough now attempts to hide behind the statute of limitations to claim that plaintiffs have no right to an inverse condemnation action. In these circumstances and in the interest of justice and fairness, plaintiffs must be afforded a remedy for the appropriation of their property for public use.

• Although their property was physically taken in 1965, the government should have provided some other form of notice before, and surely after, the taking. Instead, the Borough sent tax bills to the owner, designated the property as private on town maps, and took various contradictory positions.

• The property owners are therefore allowed to amend their complaint to add an inverse condemnation claim for the value of the property in 1965.

Read the entire opinion here. We live blogged the oral arguments here. Rutgers Law School has the archived oral argument video posted here. The briefs of the parties and amici are posted here.

Ninth Circuit Rent Control Takings Case (Guggenheim) Preview

The Ninth Circuit's en banc rent control takings case, set for oral argument in Pasadena tomorrow, has generated big interest.

In Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the city's mobile home rent control ordinance was a regulatory taking. The court found the case ripe under Williamson County, and addressed the merits of the takings claim. On March 12, 2010, the court ordered en banc review.

Twelve amici have filed briefs (10 supporting the property owners, and 2 supporting the City; available here on our resource page), and the court will be beaming the June 22, 2010 oral arguments live to the San Francisco, Portland, and Seattle courthouses at 2:00 p.m. if you can't make it to Pasadena.

We will be in the Pasadena courtroom tomorrow, and although we can't live blog from federal court, we will bring you our thoughts on the arguments as soon as the session wraps.

More, including a full set of the briefs, on our resource page.

U.S. Supreme Court Declines Review Of Wisconsin's Application Of The Undivided Fee Rule

Today, the U.S. Supreme Court denied review in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

This is the case challenging the constitutionality of the "undivided fee rule" as applied by the Wisconsin Supreme Court. That court concluded the rule requires a leasehold interest -- which would be worth over $1 million if condemned separately -- be valued at zero. [Disclosure: we filed an amicus brief for the National Association of Home Builders and the Wisconsin Builders Association in the case, supporting the VFW.]

More about the case, including the cert petition, BIO, and amicus briefs here. The Court's docket entry is here.

ABA Panel On Stop The Beach Renourishment (San Francisco, 8/6/2010)

Today's U.S. Supreme Court decision in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 is generating a lot of analysis and commentary. When the case was filed and argued, we suspected it would generate keen interest, so in anticipation, the ABA's State and Local Government Law Section assembled an expert panel discussion of the case at the upcoming ABA Annual Meeting in San Francisco.

Update and Lessons of Stop the Beach Renourishment v. Florida Department of Environmental Protection is scheduled for August 6, 2010 from 2:30 - 4:00 p.m. at the Hilton San Francisco Union Square. I will be moderating the panel, which includes expert takings law advocates and scholars. All of us filed briefs in the case:

• Jim Burling, Pacific Legal Foundation

• John Echeverria, Vermont Law School

• Richard Frank, University of California Boalt Hall Law School

• Dan Stengle, Hopping Green & Sams (Petitioner's counsel)

Details about the session here. Hope you can join us.

Stop The Beach Links

Here are some links to analysis of today's U.S. Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11:

• Unclear Outcome in Key Supreme Court Property Rights Case (Volokh Conspiracy)

• Stop the Beach: The Difference a Recusal Can Make (Blog of Legal Times)

• Supreme Court Rebuffs Homeowners in Beach Case (NY Times)

• A Funny Things About "Substantive Due Process" (Volokh Conspiracy)

• Supreme Court Rules in Stop the Beach (PropertyProf Blog)

• Judicial takings in Stop the Beach Renourishment (PLF Liberty Blog)

• So Why Not Roe? (Volokh Conspiracy)

• Justice Sotomayor Better On Property Rights Than Breyer and Ginsburg. Cool. (Josh Blackman's Blog)

First Summary And Analysis Of Stop The Beach Renourishment Judicial Takings Case

Professor Ben Barros has posted the first analysis and summary of today's Supreme Court opinions in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11. See Supreme Court Rules in Stop the Beach.

The Supreme Court today ruled in the Stop the Beach judicial takings case.  In an opinion by Justice Scalia, the Court rejected the judicial takings claim.  The Court's judgment was unanimous, but there were fragmented opinions on various issues, as described further below.  For background on the case, see this post.  For a recap of the oral argument, see this post.  For a great description of the social conflicts behind the dispute, see this article from the New York Times Magazine. 

I will be updating this post with analysis of the Court's opinions and with links to commentary about the case.

We will be posting some thoughts after a chance to review the opinions.

Scalia, J.: "How Much Wood Would A Woodchuck Chuck If A Woodchuck..."

Things I never thought I would see in a Supreme Court opinion include the riddle "how much wood would a woodchuck chuck if a woodchuck could chuck wood," but there it is, in black and white on page 11 of Justice Scalia's opinion today in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

One cannot know whether a takings claim is invalid with-out knowing what standard it has failed to meet. Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.

Full opinion here.

HAWSCT Denies Cert In Beach Accretion Case

Today, by a 3-2 vote, the Hawaii Supreme Court declined to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that "Act 73" (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and filed an amicus brief urging the Hawaii Supreme Court to accept certiorari.

In Act 73, the Hawaii Legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called "future accretions."

The court held that because "future" accretion might never happen, the State could acquire it without first paying compensation. Maunalua Bay, 122 Haw. at 53, 222 P.3d at 460. The ICA accepted the State’s argument that Act 73 did not affect a taking of future accretion, because the right is simply a contingent future interest. The ICA concluded,"any claims that Plaintiff may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions." Id.

Both the property owners and the State sought Supreme Court review.

Here's the court's order denying review, and Justice Acoba's dissent (joined by Justice Duffy). More about the case here (includes the cert applications and amicus briefs).

New Opinions: Inverse Condemnation Statute Of Limitations, Impact Fee Nexus

Here are two opinions just received that look awfully interesting, but that we haven't had a chance to read in detail:

• Homebuilders Ass'n Tulare/Kings Counties, Inc. v. City of Lemoore, No. F057671 (Cal. Ct. App. June 9, 2010) - invalidating a fire protection impact fee under California's Mitigation Fee Act because "it is not reasonably related to the burden created by the development project."

• Beyer v. City of Marathon, No. 3D08-2864 (Fla. Dist. Ct. App. June 9, 2010) - denial of Beneficial Use Determination started limitations period on an as-applied takings claim, meaning that inverse condemnation complaints were timely filed.

More details to follow.

Video Of Columbia Blight Case Oral Arguments (NY Court Of Appeals)

Launch in external player

Missed our live blog of the the New York Court of appeals oral arguments in Kaur v. New York State Urban Development Corp. the case in which the Appellate Division struck down an attempt to take property north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of "blight?"

Well, you're in luck -- the court has archived the video.

Launch the live blog and start the video at the same time and you can follow along with Timothy Sandefur, Mark Murakami, and me as we provide commentary.

To launch the video in a separate window, go here.

Norman Oder has posted an excellent summary of the arguments on Atlantic Yards Report. Worth reading, especially as you follow along with the video.

You Take It, You Bought It

Comes news that the State Land Use Commission has reclassified a large portion of state-owned land in east Oahu from "urban" to "conservation." See Ka Iwi shoreline area reclassified as conservation land (via Hawaii News Now) and Ka Iwi coast gets added protection (via the Honolulu Advertis...Honolulu Star-Advertiser). The reports state the "reclassification should make the development of the makai [seaward] area of the coastline 'a remote possibility'" (quoting the governor's press release).

The reclassification from urban to conservation means that instead of the City and County of Honolulu's zoning regulating the land, the State Department of Land and Natural Resources will exercise exclusive regulatory control. (Land classified urban is zoned and primarily regulated by the counties, whereas under Haw. Rev. Stat. § 205-5, the DLNR exclusively regulates conservation-designated land.)

But we're not quite sure what we're missing here, since it seems the fact the state owns the land -- having acquired it by condemnation a few years ago -- is the much more determinative fact insulating it from private development. Put another way, the State "rezoning" its own land should not have been the critical missing piece in preserving it unless the State were planning to develop it (very unlikely politically), or sell it (also unlikely, given the State condemned to prevent its development). Thus, the story leaves us wondering whether something else is afoot. 

The governor's press release also notes "[t]he Governor noted the battle to preserve Ka Iwi for future generations is not over. The mauka [landward] area is not designated conservation, and the potential development of this land remains of paramount concern to the community." The press release does not mention that much of the "mauka area" land remains in private ownership. As the newspaper reported:

Still, there is privately owned land in the area — above the Hawai'i Kai golf course and mauka of the state land above Queen's Beach — that could potentially be developed.

Developers controlling the 181-acre site in 2007 announced plans to build 180 large cabins and recreational amenities. The property is in the state's urban district and zoned for preservation by the county, which in some cases allows recreational-type uses on such land. Though an initial application to develop the site was rejected by the county, the potential remains for the land to be developed.

Here's where it gets interesting. As long as that property remains privately owned, preventing development won't be as simple as down-zoning or down-designating the land, because the government has a constitutional obligation to pay for private land if zoning or other use regulations restrict it to the point where it has no "economically beneficial" use. This is your classic "Lucas wipeout."

The government may be further liable for a regulatory taking even if zoning does not completely destroy use if, after balancing a number of factors, the regulation can be said to be the equivalent of an exercise of eminent domain. This is the Penn Central test, recently reaffirmed in Lingle.

The overarching concern in both circumstances is that the Fifth Amendment prohibits the government from using its regulatory power to force "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40 (1960). In other words, because the right to make reasonable use of property is a constitutional right, zoning regulations must leave an owner with some reasonable use, and cannot be imposed as a substitute for condemnation or to flatly prohibit development.

The city understands this only too well. When it repeatedly attempted to prohibit the development of two nearby parcels by downzoning them -- rather than condemn them for a public park -- it ended up costing the city $85 million. [Disclosure: my Damon Key colleagues and I represented the property owner in that case.] The court ruled this a regulatory taking, and facing damages that could have exceed the entire annual fire and police protection budgets, the city settled.

This legal reality hasn't stopped calls for the city or the State to try and leverage their regulatory powers to prohibit development of the private property within "Ka Iwi" instead of using their eminent domain powers to take and pay for it. In A new victory in efforts to save the Ka Iwi coast of Oahu, business reporter Howard Dicus asserts that the fact the public has long opposed development means a property owner who attempts to make reasonable and allowable use is "speculating" -- 

If you buy land in a scenic area where you know there is a grass roots movement to bar development, you run the risk that they will fail to lose their battle.

A landowner can argue that its "appropriate" profit is clearly indicated by the zoning of the land before it is downzoned. But a reasonable judge should agree that all the "Save Sandy Beach" bumper stickers constitute evidence that it has been known for a quarter century that any development potential east of Hawaii Kai has been a matter of speculation.

This is a common misperception -- that somehow, as long as advance notice is provided, any owner or purchaser of property loses their right to make use of the property. In 2001, however, the U.S. Supreme Court refuted the "notice" defense to a taking, rejecting the argument that regulation (or public opinion) can "define property rights and reasonable investment-backed expectations" such that an owner cannot claim any injury from lost value. Ownership and the right to make use property do not become "speculation" simply because people think an owner should not develop their land.

Bumper stickers or no, a property owner has a right to make use of her land. If it is in the public interest interest to prohibit development, it is only fair (and constitutional) that the entire public, and not a single property owner, should bear the cost.

Columbia Oral Argument Recap - Blight, Civic Purpose, And Bad Faith

We've been busy filing an appellate brief and drafting another, so until now, haven't had the chance to post up links about Tuesday's New York Court of Appeals oral argument in Kaur v. New York State Urban Development Corp.

We live blogged the arguments, following along on the court's video webcast. The court usually posts an archived video of oral arguments, which we expect next week.

Until then, check these out:

• New York High Court Oral Argument in Columbia Eminent Domain Case - lawprof Ilya Somin, via Volokh Conspiracy

• Columbia eminent domain case draws heated arguments, frequent references to Atlantic Yards - Norman Oder via his indispensable blog Atlantic Yards Reports

• Court of Appeals state on M'ville blight, civic purpose of expansion - the Columbia Spectator's summary

Any predictions? The only thing we're going to predict publicly is that the opinion should be issued by the end of the summer - the Court of Appeals usually hands out opinions pretty quickly.

As background to the arguments, you may also want to check these reports out:

• Legal briefs shed light on eminent domain argument - Columbia Spectator

• After long battle, eminent domain to be scrutinized in highest state court - Columbia Spectator

• Columbia eminent domain appeal today in Albany; Atlantic Yards decision invoked regularly; will Court of Appeals revise NY's role as national outlier? - Atlantic Yards Report

• Court date set for Columbia eminent domain case - Crain's New York Business

• The Blight Stops Here - Damon Root, via reason.com

2pm ET Today: Live Blog Of Columbia Eminent Domain Arguments (NY Court Of Appeals)

Today, starting at 2:00 p.m. ET, the New York Court of Appeals will hear oral arguments in Kaur v. New York State Urban Development Corp. In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of "blight." We analyzed the Appellate Division's opinion here.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event in the window below. Joining me will be eminent domain scholar and property owners' advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami.

The briefs are posted below the live blog window.

Here are the briefs in the Court of Appeals:

• Brief for the New York State Urban Development Corporation d/b/a Empire State Development Corporation

• Brief for the Petitioners-Respondents (the property owners)

• Brief amicus curiae of NY State Senator Bill Perkins (Sen. Perkins represents Harlem, the Upper West Side, and Washington Heights)

Reminder: June 1 NY Court Of Appeals Oral Agument In Columbia "Blight" Case

A reminder: on Tuesday, June 1, 2010 at 2:00 p.m. ET, we will be live blogging the oral arguments in Kaur v. New York State Urban Development Corp.

In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of "blight." The agency appealed to the Court of Appeals.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will be eminent domain scholar and property owners' advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami. Sign up here for email notification, then on Tuesday, follow along and join in the discussion.

Here are the briefs in the Court of Appeals:

• Brief for the New York State Urban Development Corporation d/b/a Empire State Development Corporation

• Brief for the Petitioners-Respondents (the property owners)

• Brief amicus curiae of NY State Senator Bill Perkins (Sen. Perkins represents Harlem, the Upper West Side, and Washington Heights)

Final Briefs In In Hawaii Beach Taking Case: Is "Future" Accretion A Present Property Interest?

Here are the latest filings in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010). In that case, the property owners are asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009), which held that "Act 73" (codifed here and here) was a taking. [Disclosure: we filed an amicus brief in the ICA supporting the property owners, and recently filed an amicus brief in the Supreme Court - see below].

In Act 73, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of accreted land which existed in 2003 when the Act was adopted, but that it  was not a taking of what the ICA called "future accretions."

The court held that because "future" accretion might never happen, the State could acquire it without first paying compensation. Maunalua Bay, 122 Haw. at 53, 222 P.3d at 460. The ICA accepted the State’s argument that Act 73 did not affect a taking of future accretion, because the right is simply a contingent future interest. The ICA concluded,"any claims that Plaintiff may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions." Id.

On April 26, 2010, the State filed its own application for writ of certiorari which asked the Supreme Court to review and reverse the ICA's conclusion that Act 73 was a taking of pre-2003 accreted lands, and last week filed its opposition to the property owner's application.

So here's the state of the briefing so far:

• The littoral property owners' application for a writ of certiorari (April 22, 2010)

• State of Hawaii's opposition (May 10, 2010)

• Pacific Legal Foundation's brief amicus curiae (May 13, 2010)

• State of Hawaii's application for writ of certiorari (Apr. 26, 2010)

• Property owners' opposition to State's application for cert (May 11, 2010)

Next up: a decision by the court on whether to accept or reject either (or both) of the cert applications. Stay tuned.

Yale Law Journal: Eminent Domain Due Process

A new article worth reading: Eminent Domain Due Process, 119 Yale L. J. 1280 (2010) by D. Zachary Hudson. Here's the abstract:

This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed to rein in the eminent domain power with procedural protections. After establishing the appropriateness of applying modern due process principles to eminent domain actions, the focus of the inquiry shifts to what procedural due process demands. This colloquy explains what process is due, what the content and form of that process should be, and the likely effects of recognizing due process rights in the eminent domain context.

The article cites one of my home jurisdictions (Hawaii) as taking a "middle course" by providing "some process" before the taking:

Several other states require notice by statute prior to allowing the exercise of eminent domain authority, but do not specifically afford any form of precondemnation judicial process. Under Hawaii law, for example, a taking can be accomplished by a simple filing with the court, but the condemnor must also provide notice to the owner of the property it seeks to condemn. There is no specific judicial proceeding provided for under this statute, but by ensuring notice to the property owner, the statute at least gives the individual the opportunity to attempt to insert herself in the process by seeking an injunction or pursuing some other equitable remedy.

119 Yale L. J. at 1289 (citing Haw. Rev. Stat. § 101-28 (2006)).

Thanks to my colleague Dwight Merriam for the heads up on this article.

More About The "Undivided Fee Rule" Cert Petition

A couple of links following up on our recent post about City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

That's the case in which the Supreme Court is being asked to review a decision by the Wisconsin Supreme Court (768 N.W.2d 749 (Wis. 2009)) applying the "undivided fee" rule to conclude that a valuable long-term $1 per year lease was worthless as a matter of law. The VFW was prohibited by the trial court from introducing any evidence of value since under the undivided fee rule, the jury could only determine the value of the fictional fee simple interest. The sharply divided Wisconsin Supreme Court affirmed. [Disclosure: we filed an amicus brief, noted below.]

The cert petition is here. The amicus brief we filed for National Association of Home Builders and the Wisconsin Builders Association is here. The Institute for Justice's amicus brief is posted here.

• Lawprof Ilya Somin details the amicus brief he filed in the case, and the comments include a spirited debate on the workings and wisdom of the undivided fee rule (via the Volokh Conspiracy).

• The Eminent Domain Law Blog provides more information on the case here.

Links From WMA Presentation - Regulatory Takings, Rent Control, And Guggenheim

Yesterday, I had the pleasure of speaking to members of the Western Manufactured Housing Communities Association about some of the legal issues facing their businesses, and property owners in general. Here are the links I mentioned:

• Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009) (en banc review ordered Mar. 12, 2010). This is the very important case regarding the city's mobile home rent control ordinance, which the Ninth Circuit panel concluded worked a facial taking of property under Penn Central. We have the briefs which have been filed for en banc review, and will be posting them in the upcoming days. Most definitely a case to watch.

• Professor Richard Epstein's short article about Guggenheim, Takings Law Made Hard. 

• RS Radford's rejoinder to Professor Epstein, Takings victories made harder.

• A recent opinion from the California Court of Appeal in another rent control regulatory takings case, MHC Financing Ltd. P'ship v. City of Santee, No. D053345 (Mar. 15, 2010). The case illustrates well the procedural hurdles the courts have erected when property owners bring regulatory takings claims.

• Another recent decision in the same vein, this time from the federal courts: Knutson v. City of Fargo, No. 08-1894 (Apr. 12, 2010).

Home Builders' Amicus Brief In SCOTUS Eminent Domain Case: Is Wisconsin's Application Of The Undivided Fee Rule Unconstitutional?

Today, on behalf of the National Association of Home Builders and the Wisconsin Building Association, we filed this brief amici curiae in  City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

The brief argues that the "undivided fee rule," as applied by the Wisconsin Supreme Court, violates the Fifth Amendment's Just Compensation Clause because it  requires that the value of a leasehold interest which would be worth over $1 million if condemned separately be valued at zero. Most eminent domain attorneys know about the infamous undivided fee rule (aka as the "unit rule" in some jurisdictions), a legal fiction which requires a trial court to calculate valuation of property as if a single owner possessed everything, even when it is held by more than one interest. Under the rule, the condemnor is not required to compensate each separate interest in the property, but treats the property as if it had one owner.

For example, if a condemned building is being leased to tenants, compensation is measured by the value of the undivided fee simple absolute value of the building, not the aggregate value of the building and the leases. The building owner and the tenants must divide up the condemnation award by contract. In many if not most cases, the rule is uncontroversial. But in a few cases its rigid application works very unusual and unfair results.

In City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, 768 N.W.2d 749 (Wis. 2009), a sharply divided Wisconsin Supreme Court applied the rule to conclude first that a tenant who owned an admittedly valuable long term lease ($1 rent per year, plus goodies) was not entitled to any compensation because the value of the building was zero.We deconstructed the opinion in this post: Wisconsin Supreme Court: The Whole Is Lesser Than The Sum Of Its Parts.

The VFW's cert petition presents the following questions:

When the Milwaukee Redevelopment Authority took by eminent domain the 11-story downtown building that housed the offices of Post 2874 of the Veterans of Foreign Wars (VFW) as a long-term lessee, the Wisconsin Supreme Court held 4 to 3 that—as a matter of law—the VFW was not entitled to present any evidence of value, nor entitled to recover any compensation whatever for its concededly valuable long-term leasehold.

The questions presented are:

1. Does it violate the 5th and 14th Amendments for Wisconsin—like some jurisdictions, but in conflict with others and with this Court’s repeated insistence that the appropriate question in an eminent domain proceeding is "what has the owner lost, not what has the taker gained"—to apply its "undivided fee rule" in such circumstances?

2. Did the court below violate VFW’s constitutional right to due process of law by precluding it, as the owner of a valuable interest in property being taken through eminent domain, from introducing any evidence of the value of its leasehold property?

The petition points out the split of authority in the lower courts on the applicability of the undivided fee rule. Some twenty states (Hawaii included) apply the rule regardless of the circumstances. Seven other jurisdictions never apply the rule. Still others (eight states and several federal courts) apply the rule, but are willing to deviate from it when its application would deny just compensation. A split of authority is one of the surest tickets to Supreme Court review. To add to this case's chances, the Court has appeared to be interested in the question of just compensation recently. During the oral arguments in Kelo v. City of New London, for example, two Justices asked counsel about it, even though just compensation was not at issue in that case.

The petition sums up the basic issue, and the equities:

The question is whether valuation by this fictional technique satisfies the 5th and 14th Amendments’ guarantee that those whose property is commandeered for public use will receive just compensation, usually defined as fair market value. The result below speaks eloquently. The Veterans of Foreign Wars received $0 as compensation for a long-term lease, a lease that the majority opinion had to concede had value, even though application of the  undivided fee rule forbade the VFW from presenting any evidence as to that value or receiving any compensation from the Redevelopment Authority for its taking.

Petition at 4-5. Our amici brief argues:

The "undivided fee" rule – a rule of convenience under which a court will not value a leasehold interest separately if it is condemned along with the fee simple estate – cannot override the Fifth Amendment’s guarantee of just compensation when property is taken.

A uniform standard is sorely lacking and the Wisconsin Supreme Court’s rigid application of the undivided fee rule resulted in the literal evaporation of what was acknowledged by all parties to be a valuable property interest. The Private Property and Just Compensation Clauses require more.

Leaseholds are"property" protected from uncompensated takings by the Fifth Amendment, and if the VFW’s lease alone had been condemned, there would be no question it would be entitled to compensation and to have a jury determine the lease’s value. See, e.g., United States v. General Motors Corp., 323 U.S. 373, 380 (1945) ("The right to occupy, for a day, a month, a year, or a series of years, in and of itself and without reference to the actual use, needs, or collateral arrangements of the occupier, has a value."). The Wisconsin court’s application of the undivided fee rule to value that lease at zero as a matter of law simply because the fee simple interest was also being acquired – and to prohibit the VFW from presenting evidence of the lease’s actual value to the jury – ignored its status as  Fifth Amendment property, entitled to recognition independent of the fee simple interest, and separate valuation.

This Court should grant the writ of certiorari to review the Wisconsin Supreme Court’s conclusion that in eminent domain law, somehow the whole can be lesser than the sum of its parts.

Br. at 4-5 (emphasis original).  More to follow if and when a brief in opposition is filed.

Cert Application In Hawaii Beach Taking Case: Legislative Reassignment To The State Of The Right To Future Accretion Is A Taking

The property owners have filed an application for a writ of certiorari asking the Hawaii Supreme Court to review the decision of the Intermediate Court of Appeals in Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009).

Disclosure: we filed an amicus brief supporting the property owners in the ICA, available here, and will be submitting a motion for leave to file an amicus brief urging the Supreme Court to accept the application for cert.

In its opinion, the ICA held that "Act 73" (codifed here and here) was a taking. In the Act, the legislature declared that title to shoreline land naturally accreted cannot be registered by anyone except the State, and that only the State could quiet title to accreted land. The ICA held that the Act was a taking of existing accreted land, but was not a taking of what the ICA called "future accretions" --

We conclude that (1) Plaintiffs and the class they represent had no vested property rights to future accretions to their oceanfront land and, therefore, Act 73 did not effect an uncompensated taking of future accretions; and (2) Act 73 effectuated a permanent taking of littoral owners' ownership right to existing accretions to the owners' oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.

Accordingly, we vacate that part of the PSJ order which concluded that Act 73 took from oceanfront owners their property rights in all future accretion that was not proven to be the restored portion of previously eroded land. We remand this case to the circuit court for a determination of whether Plaintiffs have accreted lands that existed when Act 73 was enacted and, if so, for a determination of the damages they incurred as a result of the enactment of Act 73.

Our summary and analysis of the opinion is posted here, and of the oral arguments is posted here.

The Application for Writ of Certiorari presents four issues: 

1.  Did the ICA commit grievous error and disregard controlling decisions from this Court when it held that the State can permanently fix the seaward boundary of oceanfront properties and deprive littoral property owners of future accretion without paying just compensation?

2.  Did the ICA commit grievous error by sua sponte criticizing the Circuit Court's order granting class certification -- which was not appealed -- without notice to the parties and without any valid basis for suggesting that class certification was improper?[*]

3.  Did the ICA commit grievous error by flagrantly misstating the record regarding the Petitioners' ownership of accreted land, the existence of which was never disputed by the State?

4.  When Petitioners proved the State unconstitutionally took accreted beachfront land from property owners throughout the islands, did the ICA grievously err and disregard this Court's decisions in holding that Petitioners were not entitled to fees under the private attorney general doctrine?

App. at 3.

* Chief Judge Nakamura dissented from the portion of the majority opinion discussing class certification, noting "I would not address and do not express any view on matters that were not before us."

Latest Eminent Domain Ruling From The California Court of Appeal

I'm on the road so haven't had the opportunity to digest this one in more detail.

In an unpublished opinion in Community Redevelopment Agency of the City of Los Angeles v. Kramer Metals, No. B208726 (Apr. 23, 2010, the California Court of Appeal (Second District) held:

Kramer Metals, a California partnership, Stanley J. Kramer, as its general partner, and Stanley J. Kramer and Susan M. Kramer, husband and wife, as joint tenants, (collectively, Kramer) appeal from the judgment in condemnation following: (1) a court trial determining Kramer's entitlement to just compensation from the Community Redevelopment Agency of the City of Los Angeles, California (CRA) for taking Kramer's property (Kramer Property or 1000 Property); (2) a jury trial resulting in an award of $4,830,000 as just compensation; and (3) a jury trial resulting in a verdict that Kramer "suffered no loss of goodwill as a result of the taking."

On appeal, Kramer contends that: (1) the trial court erred in failing to dismiss the condemnation action, because the Resolution of Necessity (RON) did not contain a determination that the public interest and necessity required the project, a jurisdictional defect; (2) the requisite owner participation process was a sham; (3) CRA violated the Ralph M. Brown Act (Gov. Code, § 54950, et seq.; Brown Act) in adopting the amended RON; (4) CRA's pre-determination to acquire the Kramer Property violated Kramer's due process right to notice and opportunity to be heard; (5) the amended RON lacked a renewed parcel-specific blight finding; (6) the court abused its discretion in excluding evidence of precondemnation damages and in admitting the testimony of CRA's goodwill expert; and (7) the judgment must be amended to include an award of interest on the probable compensation deposited. We affirm the judgment.

Slip op. at 2 (footnote omitted).

Land Court, Schmand Court: State Disregards Torrens Title, Claiming Unstated, Preexisting Rights

A fascinating case is now pending in Hawaii's Intermediate Court of Appeals involving the nature of "Torrens" title and, in a broader sense, the nature of property rights themselves. 

Hawaii has had a dual system of land registration. One is your run-of-the-mill system of registering deeds (what we creatively call "Regular System"). The other is "Land Court" registration, a statutory Torrens scheme of title registration where the State guarantees indefeasible title to the rights and interests reflected in the register. Land Court registration insures that interests which are not reflected on title do not exist. Indeed, persons who are wrongfully deprived of land or their interest through registration or the act or omission of the registrar are entitled to be paid by an indemnity fund, and the State's guarantee operates against all claims, including claims by the State itself. 

As background (for those of you who, like me, weren't paying attention on the day it was discussed in your Property class) Torrens title derives its name from Sir Robert Torrens, an Australian by way of Ireland who became the first premier of South Australia. Largely through his efforts, South Australia adopted a system of land registration which was adopted by other common law jurisdictions, including several in the United States.  

The Torrens system, in general, is a method of creating a certificate of title and then registering a legal and basically absolute title to real property. This procedure, utilizing none the less, a judicial hearing to adjudicate all claims at the outset, was at one time in effect in 20 states. At the present time only ten states still utilize the (one step) Torrens system. Eleven states have repealed the Torrens statutes. In the remaining ten, in which the Torrens system is still in effect, the system is voluntary, and it functions side by side with the "old style," evidence of title recording system. The ten states are Colorado, Georgia, Hawaii, Massachusetts, Minnesota, North Carolina, Ohio, Virginia, Pennsylvania and Washington. New York recently repealed its registration of title law. In New York State around Buffalo and on Long Island there has been some use of the registration procedure. The registration system, until fairly recently at least, was in substantial use only in Massachusetts, Minnesota and Hawaii.

Todd Barnet, The Uniform Registered State Land and Adverse Possession Reform Act, A Proposal for Reform of the United States Real Property Law, 12 Buff. Envt'l. L.J. 1, 19-20 (2004) (footnotes omitted). Hawaii first adopted the Torrens Land Act in 1903, and it is currently codified at Haw. Rev. Stat. ch. 501.

Back to the case. In In re Trustees Under the Will of the Estate of James Campbell, No. 30006, the State of Hawaii claims that title to property on Oahu's north shore which was registered and confirmed to the Campbell Estate by the Land Court in 1938, is subject to the State's ownership of "all mineral and metallic mines of every kind or description on the property, including geothermal rights," and is subject to a flowage easement in favor of the State.

The case arose when the Campbell Estate submitted a petition to the Land Court in 2009 to consolidate and subdivide the land, and the State appeared and asserted its claims. The State argued that despite the 1938 Land Court registration, Campbell's title never included interests which the State reserved, even though the State's predecessor (the Territory of Hawaii) appeared in the 1938 proceedings and asserted other claims, and Campbell's title was confirmed to be free of all unregistered interests, including the Territory's.

The Land Court disagreed, and held that the State's claim of mineral rights was extinguished by the court's 1938 judgment (decree), and that Campbell's title was free of a flowage easement.

The State appealed to the Intermediate Court of Appeals, arguing that the original grantor of the land (the King as an individual) did not own the mineral rights, so could not have conveyed them to Campbell, and that the government's reservation of mineral rights is "self-effectuating" whether noted in the land grant or not. It also claims that the government always possesses a flowage easement as a function of the public trust in water resources.

Campbell counters that the State was bound by a Land Court title like any other party, and the fact that its claimed mineral rights and flowage easement was not noted in the certificate of title means that it does not exist. It also argues that the 1938 proceedings were res judicata to the State regarding interests the Territory could have raised, but did not. To impose these interests now, 70 years after its title was confirmed and registered, would be a taking without compensation.

Here are the briefs of the parties, which spell out the arguments in further detail:

• State of Hawaii's Opening Brief

• Campell Estate's Answering Brief

This case is worth following because the State's position seems to undercut the nature of Torrens title and the entire Land Court registration process. It is also especially interesting for those who want a crash course in the underpinnings of Hawaii's property law.

More when further briefs are filed. 

8th Circuit: Federal Takings Lawsuit Not Ripe

In granting a special zoning exemption to Shelter House, Iowa City allowed it to build a homeless shelter on land next to Mr. and Mrs. Dahlen's mobile home park. After losing their challenge to the zoning exemption, the Dahlens filed suit in federal court alleging the exemption violated their due process rights.

That claim was abandoned when the Dahlens amended their complaint to allege that they owned a portion of the Shelter House property by adverse possession, and the city's approval of a site plan for the homeless shelter was an uncompensated taking of their property. The District Court dismissed the amended complaint because it was not ripe under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

In Dahlen v. Shelter House, No. 09-1909 (8th Cir. Mar. 24, 2010), the U.S. Court of Appeals for the Eighth Circuit agreed. The Dahlens asserted Williamson County was not applicable and they did not need to seek just compensation through a state court inverse condemnation lawsuit. Slip op. at 4. Instead, they argued that the taking was private because it was accomplished "without a justifying public purpose" as defined by Iowa's eminent domain statutes, and thus resort to Iowa's courts was unnecessary. Slip op. at 4-5.

The court rejected this argument on the grounds it was "attempting to bootstrap [a] Iowa statutory claim into a federal constitutional claim." Slip op. at 6. The remainder of the opinion goes on to justify the result and ends up taking a detour through the doctrinal wilderness, although we cannot quite trace the genesis of the detour.

Was it the property owners' insistence this was a "takings" claim and not a substantive due process claim, if, as they argued, allowing a homeless shelter on their property served no public use under Iowa's eminent domain law? After Lingle  v. Chevron  U.S.A. Inc., 544 U.S. 528 (2005), regulatory takings remedies focus for the most part on just compensation, and the claim that the government action fails to "substantially advance a legitimate state interest" and is invalid finds a doctrinal home in due process, not "takings." The city in this case was not claiming to exercise its eminent domain power to affirmatively take what the Dahlens claimed was their land, and the "taking" alleged was only a de facto taking. So it is difficult to see how an Iowa statute that limits the exercise of eminent domain is even applicable. Instead, through the zoning power, the city granted Shelter House a zoning exemption.

The court's opinion hardly added clarity when it came up with this gem, in dicta:

We ultimately reject their claim that violations of state eminent domain statutes necessarily give rise to federal constitutional claims.

Slip op. at 6. A federal court has no interest when a state may be violating its own statutes and that violation impacts property rights? That's not right. We think the court really should have said this:

The city did not violate Iowa's eminent domain statutes which limit exercises of the condemnation power to public uses. The city did not exercise its eminent domain power to attempt to affirmatively take the Dahlens's property, it exercised its zoning power to grant Shelter House a zoning exemption. If the exercise of the city's zoning power did not "substantially advance a legitimate state interest," see Lingle, it may have violated the Dahlens's due process rights, and ripening a claim under Williamson County is unnecessary. The Dahlens, however, removed the due process claim when they amended their complaint.

If you are interested, here are the main briefs filed by the parties:

• Dahlen's brief

• Iowa City's brief
  

• Shelter House's brief

NJ Law Journal's Summary Of The Klumpp Oral Arguments (The "Bizarre Condemnation")

Calling the case "tempestuous," the New Jersey Law Journal (via law.com) summarizes this week's New Jersey Supreme Court oral arguments in Klumpp v. Borough of Avalon, No. A-49-09 (certification granted Nov. 10, 2009). See Michael Booth, Town's Taking of Beachfront Property Without Compensation Tested at Court (Mar. 24, 2010).

In Klummp v. Borough of Avalon, A-49-09, a trial judge found and an appeals court agreed that an inverse condemnation of beach property resulted from Avalon's passing of shore-protection regulations after a 1962 Nor'easter leveled the house once standing there.

The borough built sand dunes and vacated access roads to the property, but Edward and Nancy Klummp kept paying taxes -- albeit for miniscule amounts. No condemnation case was filed nor was notice given of a taking.

Not until 1997, when they sought permits to rebuild, did Avalon assert the Klummps were no longer the owners, which led them to sue for damages and for ejectment.

The lower courts, though finding due process woefully lacking, held Avalon had acuired "equitable" ownership that bested the Klummps' mere legal title.

On Monday, the Klummps' lawyer implored the court to void the acquisition as an unconstitutional taking. "Here, there has been no effort to comply with the Eminent Domain Act or provide just compensation," said Richard Hluchan, of Hyland Levin in Voorhees.

"Avalon is clearly trespassing, and the Court should eject the borough from the property," he said.

The New Jersey Law Journal earlier called the decision "a bizarre condemnation."

We live blogged the oral arguments here, and posted the briefs here.

Behind The Music: Stop The Beach Renourishment And Judicial Takings

Courtesy of the New York Times is the backstory of Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). This, of course, is the "judicial takings" case that was argued in the Supreme Court last December, and is now awaiting disposition (our summary page contains links to the briefs -- including the amicus brief we filed -- and other case materials).

And when the Times goes back, it really goes back:

The sands found Destin first. They started off eons ago, from the Appalachian Mountains, washing their way down the rivers that flow into the Gulf of Mexico. Winnowed to pure, hardy quartz, the sediment moved with the gulf’s currents and gathered into the necklace of narrow barrier islands that buffer Florida’s Panhandle. Time and tides refined the sand into a soft, sun-bleached powder. By the 1830s, when a Yankee sea captain named Leonard Destin sailed down to the wilderness of the Florida Territory, he discovered beaches as dazzling and white as a fresh blanket of snow.

Andrew Rice, A Stake in the Sand (Mar. 15, 2010). Worth reading, even if it subtly paints at least one of the property owners objecting to loss of littoral rights as a knuckle-dragging Neanderthal who (gasp!) reads things like autobiographies of Dolly Parton and Trent Lott, and books like "Little Pink House." Neanderthal Justices are treated a little better:

Last December, an attorney for the homeowners, Kent Safriet, made his argument before the Supreme Court. In questioning, several justices seemed quizzical about what exactly the property owners were being forced to give up. "You didn’t lose one inch," Stephen Breyer said. But others from the court’s conservative wing sounded more sympathetic, hatching high-spirited hypotheticals about hot-dog vendors and raucous spring break parties. In the end, though, even Antonin Scalia seemed to waver. "I'm not sure it’s a bad deal," he said, later interjecting that the alternative "may not change the property line, but all of your property might be underwater."

Joe Bob says "check it out."

Oral Arguments Scheduled In New Jersey's "Bizarre Condemnation"

The New Jersey Supreme Court has scheduled oral arguments in Klumpp v. Borough of Avalon, No. A-49-09 (certification granted Nov. 10, 2009), to review the decision from New Jersey's Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation. (If that leaves you scratching your head, you are not alone -- the New Jersey Law Journal called the decision "a bizarre condemnation."

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. We won't be there, but through the miracle of technology, we look forward to following along via the court's live webcast site (why don't all appellate courts do this?). We may even live blog it, as we have done with other appellate oral arguments.

More about the case here, including links to the Appellate Division's per curiam opinion and the merits and amici briefs.

Connecticut Supreme Court: An Option To Purchase Is Not "Property," So Optionee Can Be Abused

The Connecticut Supreme Court has issued opinions in a trio of closely-watched eminent domain cases. The first two opinions deal with technicalities of eminent domain law, but the third overturns a $12 million jury verdict that the Town of Branford, Connecticut abused its eminent domain power.

In Town of Branford v. Santa Barbara, SC 18091 (officially released Feb. 16, 2010), the court affirmed that the highest and best use of the property taken was for residential development.

In Town of Branford v. Santa Barbara, SC 18090 (officially released Feb. 16, 2010), the court held that Connecticut's offer of judgment statute is not applicable to condemnation appeals.

In New England Estates v. Town of Branford, SC 18132 (officially released Feb. 16, 2010), the court overturned the jury's $12,435,914 jury verdict, because an "unrecorded, unexercised option to purchase the property...is not considered a property interest under Connecticut state law, New England Estates' contractual right is not a property right protected by the federal takings clause."

We noted a New York Times' report on the jury verdict here. The Connecticut Supreme Court's decisions are covered in the local media here ("Branford wins legal fight over land seizure," Hartford Courant), and here ("Branford wins eminent domain fight," WTNH).

More, after we've had a chance to digest the opinions.

Latest Briefs In New Jersey's "Bizarre Condemnation"

Remember Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam), the decision from New Jersey's Appellate Division which held that the government can assert inverse condemnation in order to take property without compensation? 

As noted in this order dated November 19, 2009, the New Jersey Supreme Court has granted the property owners' petition (available here). We called the decision "kafkaesque," since we couldn't quite figure how the appellate court reached the conclusion which it did. The New Jersey Law Journal called the decision "a bizarre condemnation."

Why the perjorative labels?

The appellate division held that the government can assert inverse condemnation. Yes, you read that right: inverse condemnation is a cause of action which the government may assert to allow it to take property without compensation.

Confused? You are not alone. Here's our recipe for straightening yourself out:

Start here, our summary of the appellate division's decision. Then, read the property owners' petition for review. Next, read the NJ Law Journal's critique (the aforementioned "Bizarre Condemnation"), and the Atlantic City newspaper's summary, complete with a photo and map.

Next, review the amici briefs which were filed supporting the property owners which we posted earlier:

• Brief Amicus Curiae of Builders League of South Jersey, Inc. In Support of Petitioners

• Brief of Proposed Amicus Curiae New Jersey Land Title Association in Support of Petition for Certification

Then, read the latest amicus briefs filed:

• Brief Amicus Curiae of New Jersey State Bar Association

• Brief Amicus Curiae of National Association of Homebuilders

• Pacific Legal Foundation's amicus brief

Finally, take a deep breath, and wait for the cavalry to arrive.

Hopefully, the New Jersey Supreme Court will see this case the same way we do. Oral arguments have not yet been scheduled. We will let you know when they are.

Post-Argument Podcast On Florida Judicial Takings Case

The Federalist Society has posted a podcast of my Pacific Legal Foundation colleague Jim Burling discussing Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009):

If that doesn't work for you, go here to download the mp3.

The Stop the Beach Renourishment case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

Our summary of the oral arguments as well as links to the briefs are available on our resource page. A recent article summarizing the key amici arguments is posted here.

Also, a distant heads-up: the State and Local Government Law and the Real Property Sections will be presenting a major CLE session at the ABA annual meeting in San Francisco in August 2010 on the Stop the Beach Renourishment case. Mr. Burling will be participating in the panel, along with Professor John Echeverria, and attorney Dan Stengle. I will be moderating the panel. Stay tuned for more details.

Eagle On Regulatory Takings (4th ed. 2009)

I just received my copy of the latest edition of Professor Steven J. Eagle's definitive treatise Regulatory Takings (Lexis/Nexis, 4th ed. Dec. 2009).

Like the earlier editions, this is a must-have for every land use and property law attorney's back bookshelf.

Chapters include "Property Rights and Their Sources," "The Ascendancy of Land Use Regulation," "Analytical Issues in Regulatory Takings Litigation," and "Regulatory Takings Remedies."

The book is available here (oddly, the Lexis-Nexis web site only has the 3d edition for purchase, but I expect that to be remedied shortly).

From the preface to the fourth edition:

This book is about "regulatory takings," which is a relatively new term, but not an entirely new idea. The underlying concept is stated simply -- government may "regulate" private property, but not to the extent that it constitutes a "taking," under the United States Constitution, or a state constitution. Owners need not be compensated for losses resulting from regulations, but are entitled to just compensation for losses resulting from takings.

During recent decades the term "regulatory taking" has been used in over 2,500 federal and state legal cases, and in almost 7,500 legal commentaries. The concept also has generated considerable interest in the popular press. This culminated in the immense volume and intensity of reaction to the the United States Supreme Court's 2005 decision in Kelo v. City of New London, which permits as a "public use" the condemnation by local government of unblighted homes for retransfer to private redevelopers for urban revitalization projects.

...

Since the first edition of this book was published in 1996, numerous cases have attempted, without conspicuous success, to define the term "regulatory takings." The U.S. Supreme Court has affirmed that localities must pay compensation when regulatory actions overreach, and that changes in statutes and regulations do not automatically modify the rights of property owners and their successors. The Court also has indicated that government physical incursions are to be treated differently from regulatory contraints. It has not, however, provided any general theory by which the boundaries of the principal attributes of ownership -- the rights of exclusion of others, use, and transfer to successor owners, are to be delineated.

I have the honor of counting Professor Eagle as a colleague, as he is my immediate past predecessor as the Chair of the Condemnation Committee of the ABA's Section of State and Local Government Law.

New Article On Florida Beach Judicial Takings Case

The most recent edition of State & Local Law News has an article summarizing the arguments in Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). 

That case, which has been argued and is currently awaiting disposition by the Supreme Court, asks whether a state court is constrained by the Takings and Due Process clauses from rewriting the common law rules of property. [Disclosure: we filed an amicus brief in the case supporting the property owners.]

In Drawing a Line in the Sand: Stop the Beach Renourishment, Inc. v. Florida Dep't of Envtl. Protection, six authors of amici briefs in the case -- including me -- summarized their arguments. I focused on the "background principles" issue, and the notion that certain common law aspects of property are beyond the reach of state court redefinition:

The "judicial takings" question in Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot. boils down to this: can courts "take" property when they change the common law?

Of course they can. The case concerns whether the "background principles" exception to per se takings in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), permits state courts to construe state property law in a manner that threatens to virtually swallow up all regulatory takings. Perhaps more so than state legislatures, state courts may be susceptible to reordering established property norms via abrogation of common law rules, "discovery" of background principles or custom never before enunciated, or expansion of the public trust.

The complete article is posted here. The pdf is posted here. (You may need to be an ABA member to access the site. If you can't, let me know.)

In addition to my summary, Professor John Echeverria, and attorneys Anthony Caso, Gary Oldehoff, Donald Joe Willis, and Julia Wyman contributed to the piece. 

Visit our resource page on the case for the merits and amici briefs, a summary of the oral arguments, and links to media reports.

Motions For Reconsideration In ICA Accretion Taking Appeal

Both parties have asked the Hawaii Intermediate Court of Appeals to take another look at its opinion in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009).

In that case, the court held (1) the Hawaii Legislature took existing littoral accretion when it assigned ownership of the accretion from beachfront owners to the State; and (2) the Legislature did not take "future accretion." We summarized the opinion here. [Disclosure: we filed an amicus brief supporting the property owners, available here.]

The State of Hawaii asserts the opinion should not have addressed the claim that land which had accreted prior to 1985 was taken. The State's Motion for Clarification is here.

The property owners assert the ICA's conclusion that "future accretion" is not a property interest should be reexamined. The ICA relied on three federal cases from the Ninth Circuit, Western Pac. Ry. Co. v. Southern Pac. Co., 151 F. 376 (9th Cir. 1907), Cohen v. United States, 162 F. 364 (C.C.N.D. Cal. 1908), Latourette v. United States, 150 F. Supp. 123 (D. Or. 1957), to hold that accretion was similarly not "vested," and the legislature could take it without consequence. The property owners point out that a recent Ninth Circuit panel decision (United States v. Milner, No. 05-35802 (Oct. 9, 2009), an opinion we summarized here) undercuts the ICA's reliance on those older cases. Barista's note: a cert petition was recently filed seeking review of Milner. 

The property owners also seek reconsideration of three other issues: the ICA's public trust dicta (an issue we discussed in this post (scroll down to "The 'Notice' Defense Revived?")), proof of existing accretion, and the propriety of class certification. The property owners' Motion for Reconsideration is here.

New Cert Petition: Is Littoral Owner Trespassing When The Shoreline Erodes, Placing Lawful Structure In The Water?

Many years ago I got a parking ticket, my first. Here's the story: when I left the car, it was a legal space, no meter. In the few hours I was away, the city public works department erected a "no parking" sign and painted the curb red. The police were equally efficient, and by the time I returned, I had a ticket for parking in a red zone.

I objected and the judge recognized injustice when he saw it.

Years later, the court was not so magnanimous. We represented a property owner held liable for "creating" an obstruction to navigation in San Francisco Bay in violation of the Rivers and Harbors Act of 1899. How did the owner "create" the obstruction, you ask? It refused to destroy those portions of its piers which extended beyond the harbor line.

Why would the owner put a pier beyond the harbor line? It didn't -- the Corps of Engineers wanted to expand the Port of Oakland's shipping lane and instead of condemning the piers and paying compensation, it redrew the harbor lines so that the piers -- which has been in existence since the early days of World War II and always within the harbor line -- were, with the stroke of a pen, outside the line. Presto, instant violation. See United States v. Alameda Gateway, Ltd., 213 F.2d 1161 (9th Cir. 2000). [Sidebar: the property owner was vindicated by a concurrent decision by the Court of Federal Claims that it was entitled to compensation for the taking of those portions of the piers which were not subject to a federal navigational servitude. See Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999).]

So I can empathize somewhat with the property owner in United States v. Milner, 583 F.3d 1174 (9th Cir. 2009). In that case, a littoral owner in Washington state was held liable for trespass and for violation of the Rivers and Harbors Act for maintaining a "shore defense structure." The structure was built on private fast (dry) land, but the shoreline eventually eroded up to it.

In an opinion which we detailed in this post, the Ninth Circuit held that "both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line." Slip op. at 14477.

The shoreline defense structure may have been legal when it was built, but it became illegal when it impeded natural erosion.

The property owners have filed a cert petition (posted here), posing these Questions Presented:

As a matter of federal law, the boundary on navigable waters between uplands and tidelands is ambulatory in nature. Upland owners have a common law right to build shore defense structures on their property to protect against erosion.

Section 10 of the Rivers and Harbors Appropriation Act of 1899 (RHA) prohibits the "creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." It also makes it unlawful to "build or commence the building of any...structures in", or "to excavate or fill, or in any manner to alter or modify," navigable waters of the United States without a permit from the Army Corps of Engineers.

Submerged lands underlying navigable waters within territories of the United States are presumed to be held by the United States in trust for future states, which generally acquire such lands by virtue of their sovereignty upon achieving statehood. Nevertheless, Congress may withhold specific submerged lands from a future state by using plain language demonstrating intent to withhold them.

The questions presented are:

1. As a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, does the shore defense structure constitute a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure?

2. As a matter of federal law, does an owner of tidelands underlying navigable waters have a vested right to the unabated erosion of abutting uplands as they would exist in their natural state – a right that is superior to the upland owner’s right to erect shore defense structures?

3. Is an owner of upland property strictly liable under Section 10 of the RHA for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States?

4. Is injunctive relief under the RHA exempt from the general requirement that courts balance competing equitable interests before issuing an injunction?

5. Is the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington?

Petition at i-ii. The case is now captioned Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010). Docket entry here. The federal government's response is due by February 10, 2010.

More, as the case progresses.

Upcoming Teleconference On Land Use Exactions

Next Tuesday (January 12, 2010) from 1-2pm Eastern Time, I'll be speaking at a teleconference on land use exactions for members of the International Municipal Lawyers Association. I'll be the guest of nationally-renown land use law experts Professor Dan Mandelker and attorney Dwight Merriam.

More information here.