Law Commons^™

Foreground Principles, Timothy M. Mulvaney

Timothy M. Mulvaney

The U.S. Supreme Court has declared for decades that, for Takings Clause purposes, property interests are not created by the Constitution but rather are determined by “existing rules or understandings that stem from an independent source such as state law.” However, the Court has exhibited a strong normative preference for a certain type of independent source — “background principles” of the common law — over others, namely state statutory and administrative law. This Article calls this preference into question. The Article develops a model to demonstrate the four basic categories, or quadrants, of takings decisions that extensive reliance on the …

Exactions For The Future, Timothy M. Mulvaney

Timothy M. Mulvaney

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Timothy M. Mulvaney

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

Proposed Exactions, Timothy M. Mulvaney

Timothy M. Mulvaney

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …

The Remnants Of Exaction Takings, Timothy M. Mulvaney

Timothy M. Mulvaney

This article explores the ability of local governments to impose discretionary permit conditions, or "exactions, " to offset the burdens that new development places upon existing infrastructure and the environment. Over fifteen years ago, in Nollan v. California Coastal Commission and Dolan v. City of Tigard, a deeply divided U.S. Supreme Court ruled that the Takings Clause of the Fifth Amendment significantly restricts this governmental authority, for the clause requires the judiciary to apply a more stringent level of scrutiny in reviewing permit conditions than is accorded outright permit denials. These "regulatory takings " decisions provide land use regulators with …

Exactions For The Future, Timothy M. Mulvaney

Timothy M. Mulvaney

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …

Waterlocked: Public Access To New Jersey's Coastline, Timothy Mulvaney, Brian Weeks

Timothy M. Mulvaney

No abstract provided.

Takings In The “Sharing Economy", Timothy Mulvaney

Timothy M. Mulvaney

On Property Theory: Uber, Lyft, And The ’Sharing Economy’ Myth, Timothy Mulvaney

Timothy M. Mulvaney

No abstract provided.

On Property Theory: Uber, Lyft, And The ‘Sharing Economy’ Myth, Timothy Mulvaney

Timothy M. Mulvaney

No abstract provided.

On Property Theory: Uber, Lyft, And The ‘Sharing Economy’ Myth, Timothy Mulvaney

Timothy M. Mulvaney

No abstract provided.

Takings In The “Sharing Economy", Timothy Mulvaney

Timothy M. Mulvaney

Takings In The “Sharing Economy", Timothy Mulvaney

Timothy M. Mulvaney

Exactions And Progressive Property, Timothy Mulvaney

Timothy M. Mulvaney

Exactions And Progressive Property, Timothy Mulvaney

Timothy M. Mulvaney

No abstract provided.

Temporary Takings, More Or Less, Timothy M. Mulvaney

Timothy M. Mulvaney