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Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright
Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright
UF Law Faculty Publications
After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW …
Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright
Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright
UF Law Faculty Publications
On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, "[t]he right of way [200 feet wide] through the public lands of the United States." The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over …
The Brooding Omnipresence Of Regulatory Takings: Urban Origins And Effects, Michael Allan Wolf
The Brooding Omnipresence Of Regulatory Takings: Urban Origins And Effects, Michael Allan Wolf
UF Law Faculty Publications
This essay, written on the occasion of the 40th anniversary of the Fordham Urban Law Journal, discusses the urban settings for key regulatory takings decisions of the U.S. Supreme Court, reviews the state of expert commentary before the rebirth of regulatory takings in the high court, explores the complex relationship between liberal justices and private property rights protection, reviews regulatory takings scholarship that has appeared in the pages of this journal, and closes with some thoughts about the future of urban regulatory takings
The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein
The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein
UF Law Faculty Publications
Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council -- the modern U.S. Supreme Court's seminal regulatory takings decision -- this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own -- forming what this Article calls the new …
Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster
Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster
UF Law Faculty Publications
The regulatory takings doctrine, the Supreme Court declared in Lingle v. Chevron, concerns the effects of a regulation on the incidents of property ownership. It serves as a constitutional protection against regulations that impose the functional equivalent to a classic taking of private property (an appropriation by the state or an ouster), and it requires compensation for owners who are subject to such regulations. Just as significant as declaring what the regulatory takings doctrine is, theCourt in Lingle also declared what it is not: it is not a judicial check onthe validity or reasonableness of a regulation that …
Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster
Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster
UF Law Faculty Publications
A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. This article argues that the Court's suspicions are well founded but that blame for judicial and administrative noncompliance lies with the Court's bifurcated approach to the Takings Clause.
A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright
A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright
UF Law Faculty Publications
This Article explores the question of how the courts should calculate the denominator in the just compensation equation. The denominator is the amount of property a claimant owns, against which the effects of regulation will be measured. If a landowner owns a single acre that is severely regulated, the takings fraction for the amount of property taken compared to that owned will approach one. If, on the other hand, the landowner owns 100 acres and only one is regulated, the amount of harm is only 1% in comparison to the total amount owned. This Article advocates a paradigm shift in …