Commercial Real Estate Appraiser - Appraisal Blog, APPRAISAL/CONSULTING SERVICES: 310.337.1973

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.

This posting includes an audio/video/photo media file: Download Now

The New York Times' "Square Feet" column today posted "Lessons on Limits of Eminent Domain at Columbia," about the recent decision in Kaur v. New York State Urban Dev. Corp., 2009 NY Slip Op 08976 (Dec. 3, 2009). 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 the condemnor's claim the properties are "blighted" was a pretext to mask overwhelming private benefit. The Kaur court undertook an extensive review of the facts and concluded "there is no independent credible proof of blight in Manhattanville."

The article notes:

The Dec. 3 opinion by the New York Supreme Court's appellate division, which found there was no civic or public purpose or blight to justify condemning Tuck-It-Away's buildings for the university's new campus, has unnerved public officials and developers. The Columbia decision "is the first thing that's happened in New York that suggests the threat of a change in our eminent domain law," said Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. "I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making."

The article also has a choice comment from our Owners' Counsel of America colleague Mike Rikon:

"I think people are really getting a foul smell from what’s been going on" said Michael Rikon, a lawyer who represents business owners in the Willets Point section of Queens, where the city intends to condemn property to make way for a large redevelopment project.

The piece also quotes our ABA State and Local Government Law Section colleague Amy Lavine (who, by the way, produces a very good law blog on community benefit agreements):

A provision to require trial-level review could be part of new legislation being drafted by Mr. Perkins, said Amy Lavine, a staff attorney with Albany Law School’s Government Law Center, who is advising the state senator. At the top of her list is substituting a specific definition of blight for the current standard of "substandard and insanitary" One model might be Pennsylvania's 2006 law, which permits a blight finding only when a substantial number of properties meet certain conditions such as being “unfit for public habitation” or having been tax delinquent for two years. "It's about making sure there are objective standards relating to public health and safety," Ms. Lavine said.

Ms. Lavine said she also supported lengthening the 30-day time limit for mounting a condemnation challenge.

The complete article is available

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.

This posting includes an audio/video/photo media file: Download Now

The New York Times' "Square Feet" column today posted "Lessons on Limits of Eminent Domain at Columbia," about the recent decision in Kaur v. New York State Urban Dev. Corp., 2009 NY Slip Op 08976 (Dec. 3, 2009). 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 the condemnor's claim the properties are "blighted" was a pretext to mask overwhelming private benefit. The Kaur court undertook an extensive review of the facts and concluded "there is no independent credible proof of blight in Manhattanville."

The article notes:

The Dec. 3 opinion by the New York Supreme Court's appellate division, which found there was no civic or public purpose or blight to justify condemning Tuck-It-Away's buildings for the university's new campus, has unnerved public officials and developers. The Columbia decision "is the first thing that's happened in New York that suggests the threat of a change in our eminent domain law," said Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. "I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making."

The article also has a choice comment from our Owners' Counsel of America colleague Mike Rikon:

"I think people are really getting a foul smell from what’s been going on" said Michael Rikon, a lawyer who represents business owners in the Willets Point section of Queens, where the city intends to condemn property to make way for a large redevelopment project.

The piece also quotes our ABA State and Local Government Law Section colleague Amy Lavine (who, by the way, produces a very good law blog on community benefit agreements):

A provision to require trial-level review could be part of new legislation being drafted by Mr. Perkins, said Amy Lavine, a staff attorney with Albany Law School’s Government Law Center, who is advising the state senator. At the top of her list is substituting a specific definition of blight for the current standard of "substandard and insanitary" One model might be Pennsylvania's 2006 law, which permits a blight finding only when a substantial number of properties meet certain conditions such as being “unfit for public habitation” or having been tax delinquent for two years. "It's about making sure there are objective standards relating to public health and safety," Ms. Lavine said.

Ms. Lavine said she also supported lengthening the 30-day time limit for mounting a condemnation challenge.

The complete article is available