Law Commons^™

Property Owners Look Out: The Train Is Coming, Natalie Crane

Seattle University Law Review

Over 4 million people currently live in the Puget Sound area in Washington state, and about 6 million people are expected to reside in the area by 2050. Additionally, Seattle renters faced a 71.2% increase in rent prices from 2010 to 2019. This data supports the need for much of the congested Seattle population to move outward and commute into the city for work. The implementation of a 116-mile system and other efforts to increase public transportation makes this need achievable and affordable.

This Comment focuses on the issue of just compensation in eminent domain; specifically, unique questions of compensation …

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …

Written Testimony Of Gerald S. Dickinson For The U.S. Senate Hearing On Fencing Along The Southwest Border (Senate Committee On Homeland Security And Governmental Affairs), Gerald S. Dickinson

Testimony

It is with great pleasure that I submit this written testimony at the request of the Office of the Ranking Member, Senator McCaskill. I am pleased that the Homeland Security and Governmental Affairs Committee is devoting its April 4, 2017 hearing to an examination of efforts to secure the southwest border through the construction of a wall. Further, as a law professor who writes and teaches in the areas of constitutional property and land use, I take great interest in the committee's focus on the legal authorities related to the wall construction along the U.S.-Mexico border.

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Donald J. Kochan

"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander

Gregory S Alexander

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize …

Inclusionary Eminent Domain, Gerald S. Dickinson

Articles

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded …

The Hidden Function Of Takings Compensation, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects. This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation is intended to reduce the incentives for corruption by limiting …

Rebuilding The Public-Private City: Regulatory Taking's Anti-Subordination Insights For Eminent Domain And Redevelopment, Audrey Mcfarlane

All Faculty Scholarship

The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today's cities: complex, fundamental disagreements between market and community about Development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In particular, how should we address the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory …

Putting The "Public" Back Into Public-Private Partnerships For Economic Development, Audrey Mcfarlane

All Faculty Scholarship

Public-Private Partnerships are viewed quite positively. In the context of working with local government for economic development, the interests and concerns of the private appear to dominate the development decision-making. This Essay explores eminent domain decisions and community benefits agreements for standards for measuring the efficacy of these partnerships. It suggests ways in which we can begin to think about public accountability and public benefits to be derived from these partnerships.

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

Who Will Redevelop Redevelopment?, Tim Kowal

ExpressO

Although California’s redevelopment law is among the strictest in the nation, from a layperson’s perspective, redevelopment agencies (RDAs) appear to be no more obstructed from their projects in California as they would be in, say, Connecticut. This article addresses a sort of “tragedy of the commons” problem applied to redevelopment: If redevelopment powers are “over-harvested” such as to instigate serious political revolt against them, they will become barren and useless, and will no longer be available for the purposes for which they were intended and for which they are still needed. Even assuming that redevelopment is efficacious and necessary, redevelopment …

Eminent Domain And The "Public Use": Michigan Supreme Court Legislates An Unprecedented Overruling Of Poletown In County Of Wayne V. Hathcock, John E. Mogk

Law Faculty Research Publications

No abstract provided.

"Public Use" And The Independent Judiciary: Condemnation In An Interest-Group Perspective, Donald J. Kochan

Donald J. Kochan

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use through an application of public choice theory. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by interest group politics and public choice theory and by institutional tendencies inherent in the independent judiciary. Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it …

"Takings" Jurisprudence In The U.S. Supreme Court: The Past 10 Years, Gregory S. Alexander

Cornell Law Faculty Publications

No area of American property law has been more controversial in recent years than the government regulation of uses of private property. No aspect of American constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the requirement that the government pay compensation for takings of property. The purpose of this essay is to acquaint the non-American legal scholar who is unfamiliar with the recent developments in the United States Supreme Court “takings” jurisprudence. The essay does not presuppose any background knowledge about either American constitutional or property law. Instead it attempts to familiarize …

A Dozen Propositions On Private Property, Public Rights, And The New Takings Legislation, Carol M. Rose

Washington and Lee Law Review

No abstract provided.

Eminent Domain-Urban Renewal-Broader Powers To Take Private Property For Public Use, Roger L. Mcmanus

Michigan Law Review

Defendant city instituted a comprehensive urban redevelopment plan under which condemnation and purchase of blighted property would be followed by extensive demolition and clearance. This land was then to be sold subject to certain use restrictions to private developers, chiefly for light industry. Plaintiff, an owner of real estate described as "improved and enhanced with . . . a good, sound, sanitary, modem and well-kept building," brought an action in a lower state court seeking a declaratory judgment against the constitutionality of the Washington Urban Renewal Law, and an injunction to prevent defendant city from condemning his property under the …