June 2009

Here are items which we’ve been reviewing today:

  • Dwight Merriam’s thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor.
  • A report that the “Florida Hometown Democracy” initiative has made the 2010 ballot. According to the report “[i]f the proposal gets 60 percent approval at the polls, HometownDemocracy would require local referendums on changes to city and countycomprehensive plans.”
  • The New York Court of Appeals (that state’s highest court) will be hearing arguments in the Atlantic Yards cases. The NY Observer‘s report here, and the NY Times report here.
  • Speaking of takings for sports facilities, Professor Gideon Kanner dishes on using taxpayer money to attract and support stadiums and arenas.

Continue Reading Tuesday Round-Up

A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics discussed during today’s call, and other items of interest which we didn’t have time for:

  • Judge Sonya Sotomayor’s decisions about eminent domain and regulatory takings
  • Resource page for the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009).
  • Scalia and O’Connor’s dissent

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Continue Reading Links From ABA Condemnation Committee Conference Call

The U.S. Supreme Court last week agreed to review the Florida Supreme Court’s decision in Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008), which heldthat a state statute prohibiting “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean. See Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). More background on the case at our resource page.

The Court accepted three questions for review, and the cert petitionrelied on two rather notorious cases with Hawaii origins to support theconclusion that a decision by a state court which unexpectedly changesestablished state common law rules of property is a compensable taking.See Pet. at 31-32 (citing Robinson v. Ariyoshi…

Continue Reading On Judicial Takings, And The Hawaii Water Rights Backstory In Stop The Beach Renourishment

Update: the Supreme Court heard oral arguments on December 2, 2009. The transcript and our summary of the arguments are posted here (Petitioners’ argument), here (Respondents’ argument), and here (United States as amicus).

Here are links and other items of interest about Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

In the decision under review (Walton County v. Stop the Beach Renourishment, Inc.,998 So.2d 1102 (Fla. Sep. 29, 2008)), the Florida Supreme Court heldthat a state statute which prohibits “beach renourishment” without apermit did not effect a taking of littoral (beachfront) property, eventhough it altered the long-standing rights of the owners to accretionon their land and direct access to the ocean.

The opinion of the District Court of Appeal is available here. 

Questions Presented

The cert petition presents three questions:

TheFlorida Supreme Court invoked “nonexistent rules…

Continue Reading Beach Takings Case Resources (Stop The Beach Renourishment v. Florida Dep’t of Environmental Protection)

It looks like the federal government will likely seek U.S. Supreme Court review of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). As noted here, the SG’s office has sought and received two extensions of time and the cert petition is now due by July 17, 2009.

In Casitas, the Federal Circuit held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout. The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback. The character of the government action was a physical diversionfor public use — the protection of an endangered species.” The Federal Circuit’s opinion is posted here, and the court’s denial…

Continue Reading Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)

I’ve been reading some noteworthy law journal articles on the subject of eminent domain —  two on the issue of pretext, and one on just compensation. Worth reviewing.

  • Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77 Fordham L. Rev. 3095 (2009).

    The plaintiffs in Goldstein based their pretext claims on both Justice John Paul Stevens’s brief discussion of pretext in the majority opinion of Kelo and Justice Anthony Kennedy’s more lengthy discussion in his concurrence. Acknowledging that “[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption . . . of invalidity is warranted,” Kennedy’s fifth-vote concurrence identified the possibility of “a more stringent standard of review than [rational basis review] for a more narrowly drawn category of takings.” Although the Second Circuit rejected the application of this heightened pretext standard in Goldstein,

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Continue Reading Eminent Domain Academic Round-Up: Pretext And Compensation

Head’s up to all members of the ABA’s Section of State and Local Government Law‘s Condemnation Law Committee: you should have received an email about next week’s conference call (Thursday, June 25, 2 p.m. EDT) to discuss recent developments and items of interest, including:

If you are a section member and did not get the notification email with call-in information, send me an email and I will forward it to you.Continue Reading ABA Condemnation Law Committee Conference Call On Beach Takings Case And Sotomayor Nomination

Adam Liptak reports Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings in the June 14, 2009 edition of the New York Times, comparing SCOTUS nominee Sotomayor’s decision in an infamous (at least in eminent domain circles) case with the positions of the two Justices most recently confirmed to the Court, Chief Justice Roberts and Associate Justice Alito on a similar issue.

Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.

Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its…

Continue Reading NY Times On Judge Sotomayor And Property Rights

The US Court of Appeals has reversed the Court of Federal Claims’ dismissal of a takings case, holding the right to develop land is property protected by the Takings Clause. In Schooner Harbor Ventures, Inc. v. United States, No. 2008-5084 (June 16, 2009), the property owner claimed a designation of its property (Site 28) by the U.S. Fish and Wildlife Service as a critical habitat for the Mississippi Sandhill Crane — which required it to purchase another parcel as a mitigation measure before it could sell Site 28 to the Navy — was a taking.

The property owner sought just compensation in an inverse condemnation action in the CFC, which entered summary judgment for the government because the owner failed to assert a property right. The CFC characterized the interest claimed as “the right to sell its property to the government, withoutconditions imposed, in this instance to meet regulatory…

Continue Reading Federal Circuit: Plaintiff Alleged Property Right To Develop Land