Takings
See Georgetown University Law Center's Environmental Policy Project for an excellent overview of the takings issue -both in the court and in the legislature. The school describes the project as follows:
The mission of the Environmental Policy Project is to conduct research and education on legal policy issues relating to protection of the environment and conservation of natural resources.
A major focus of the Environmental Policy project is the "takings" or "property rights" issue. The Project seeks to promote a positive understanding of the role of democratic institutions in developing and implementing property rules and regulatory policies necessary to protect private property values, public health and safety and the environment and other aspects of the general welfare.
In the interest of fairness, something from the libertarians on their view of Fifth Amendment takings .
A summary of recent (1997-98) takings decisions in the federal courts. Pending issues for spring 1999 are also available
Takings legislation has again been proposed in Congress in an attempt to allow landowners to avoid state court. The Cato Institute also supports takings legislation.
The Pacific Legal Foundation, which represents property owners in many takings cases, has information on current cases. See its Property Rights Practice Group site.
Pennsylvania Coal v. Mahon
Mining subsidence and sinkhole formation are still big issues today.
Del Monte Dunes
In City of Monterey v. Del Monte Dunes at Monterey, Ltd., 119 S.Ct. 1624 (1999), the Supreme Court affirmed a jury verdict of $1.45 million for a landowner who was denied use of its land. The most anxiously awaited aspect of the case was the propriety of the Ninth Circuit's application of the Dolan rough proportionality standard to this case involving a permit denial. The Court tersely and unanimously rebuffed the Ninth Circuit, noting that the Dolan standard has only been applied to exactions. Whether Dolan applies to impact fees was not in issue.
The jury trial aspect of the case proceeded on narrow grounds. The Court held that the trial court did not err in submitting the issue of whether a regulatory taking had occurred in this action in federal court based on § 1983. In so holding, the Court noted that the question submitted to the jury was particularly fact bound. There is no absolute right to a jury trial, and the Court evidenced concern to limit the ability of a jury to interfere with legislative acts of local government.
The jury trial right is further narrowed by the fact that few takings case can be tried in federal district court. See text at 335 regarding ripeness rules for taking claims. Most will go to state court and the Supreme Court says in Del Monte Dunes that state courts need not provide a jury trial. Once the landowner seeks state court relief and appeals an adverse decision, the 7th Amendment jury trial right does not apply. Part IV-B-2 of the opinion.
Lucas, North Carolina and Takings
How free is a state to define property rights? The Lucas Court reserves to itself the power to review state court rulings to see whether they constitute, in the Court's opinion, objectively reasonable applications of precedent. What leeway does a state have in defining public rights in beachfront property?
The issue arises in North Carolina's Currituck Beach controversy. Like many states, NC divides public and private property on the beach at the ordinary high tide line. This means the "dry sand" is private and only the "wet sand" is public. NC asserts, though, that the public has an easement to use the dry sand immediately adjacent to the high tide mark for purposes incidental to use of the ocean. The landowners in the Whalehead subdivision object to having the public walk and sit on their dry sand. Read all about it here:
Currituck 1-Overview of the Currituck beach controversy (9/5/98)
Currituck 2-Editorial: Keep the beaches open to the public (9/13/98)
Currituck 3- NC State legislature comes to the rescue (?) (10/1/98)
Currituck 4 - The rich interlopers strike back in a letter to the editor. (10/19/98)
Currituck 5 - Another columnist heard from. (10/22/98)
Currituck 6 - Att'y General Mike Easley weighs in about the drinking habits of vacationing Washington lawyers and other stuff. (6/9/99)
Currituck 7 - Washington lawyer explains cocktail preferences etc. (7/15/99)
Currituck 8 - The latest on the case (7/31/99)
Currituck 9 - Stay tuned . . .
Shell Island
The State of North Carolina has refused to allow the Shell Island Resort in Wilmington to install a hardened structure to prevent beach erosion that threatens the building. The owners sued claiming a taking. They lost. (NC App. Ct. slip opinions 1 & 2 (July 20, 1999).
Read The Raleigh News and Observer's Articles on the Shell Island controversy:
Shell island 1 - July 25, 1996
Shell Island 2 - September 22, 1996
Shell island 3 - September 28, 1996
Shell Island 4 - October 2, 1996
Shell Island 5 - November 1, 1996
Shell Island 6 - January 25, 1997
Shell Island 7 - January 24, 1998
Shell Island 8 - February 12, 1998
Shell Island 9 - July 24, 1999
This is just the tip of an enormous iceberg. For even more on Shell Island, click here and enter "Shell Island" as your keyword search.
Forum Selection in Takings Cases
A debate exists over the meaning of the Court's requirement, imposed in Hamilton Bank, page 335 of the text, that landowners seek compensation in state court. Once that is done, rules of claim and issue preclusion normally bar collateral review in federal district court. In the most recent skirmish, the Supreme Court denied certiorari to a landowner seeking to challenge the rule. See City of Memphis v. Rainey, 178 F.3d 1295 (6th Cir.1999), cert. denied 1999 WL 495627, 68 USLW 3022 (U.S. Oct 04, 1999) (NO. 99-6).