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Full-Text Articles in Law
Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin
Pennsylvania Gas: Trusts, Takings, And Judicial Temperaments, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
Perhaps it is their role in our survival, or our economic growth, or the environment. Whatever the reason, energy and natural resource conflicts seems to be unique in the way they can drive significant doctrinal change even outside of energy and natural resource law. Pennsylvania has been a fountainhead of these conflicts. In 1921, Pennsylvania’s Kohler Act and lesser known Fowler Act, which sought to protect surface owners from anthracite coal mine subsidence and to increase tax revenue from anthracite mining, ignited the legal wrangling that eventually led to Pennsylvania Coal Co. v. Mahon. That U.S. Supreme Court decision transformed …
One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green
One Parcel Plus One Parcel Equals A "Parcel As A Whole" Murr V. Wisconsin's Fluid Calculations For Regulatory Takings, Shelby D. Green
Elisabeth Haub School of Law Faculty Publications
The Court's most recent major property law case, Murr v. Wisconsin, 137 S. Ct. 1933 (2017), tackles one of the thorny, recurring issues in regulatory takings jurisprudence: what is the proper “denominator” to use in determining whether a government regulation has so greatly diminished the economic value of a parcel of land that it effects a taking? More specifically, Murr looked at what constitutes the “parcel as a whole” when a landowner holds title to two contiguous lots. Should a court assess the economic impact on the value of each lot separately or the impact on the value of the …
Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon
Rising Tides--Changing Title: Court To Mull Takings Issue, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court has granted certiorari in Walton County v. Stop the Beach Renourishment, Inc., where novel questions arose concerning sea level rise and constitutional property rights of beachfront landowners. In Florida, the state government owns in trust, all beach property below the mean high tide water line, while beachfront landowners own the rights to any land above the mean high tide water line. The line shifts along with beachfront as the beach expands and contracts. In this Florida case, landowners challenge a state statute, which precludes the ocean property line from shifting in favor of the private …
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …
'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher
'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court holding in Lingle v. Chevron U.S.A., Inc. clarified years of takings jurisprudence and overturned a controversial decision in the case of Agins v. City of Tiburon. This article discusses how the Lingle court denounced the “substantially advances” test created in Agins, as a due process inquiry rather than a proper takings test. The Lingle court instead opted to create a clear four-category paradigm for takings cases, which focuses on the burden the government places on private property rights in order to distinguish takings categories.
Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher
Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
Exactions occur when applications to develop parcels of land require governmental permission, and that permission is conditioned upon dedicating part of the land to public use. Exactions have long been challenged as regulatory takings, and both federal and state courts look at these types of regulations with a heightened level of scrutiny due to the nature of exactions to remove a crucial element from the bundle of property rights associated with ownership of real property: the right to exclude. This column discusses a recent example of exactions jurisprudence applied in New York and goes on to compare that decision in …
Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher
Exacting Tests: Determining When A Taking Is Unconstitutional, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
In the past, courts generally deferred to legislatures when determining whether a law constitutes a regulatory taking. However, not all regulations are treated equal, and different tests apply to different types of regulations. Types of land use actions with a lower threshold of constitutionally include exactions, and regulations that apply fixed fee schedules to private landowners. This article combs both federal and New York law to come to the clear determination that universal standards exist for each type of regulation.
Regulatory Takings: Governments Can Avoid Successful Challenges, John R. Nolon, Jessica A. Bacher
Regulatory Takings: Governments Can Avoid Successful Challenges, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
Many local officials have the misguided belief that their utilization of land use regulation is greatly impeded by private rights to develop. However, land use regulations have a strong assumption of validity, with courts unlikely to overturn the regulations unless they are clearly erroneous or unreasonable or have no connection to a valid public interest. In addition to explaining development rights, this article provides the reader with insightful information on how local legislatures enact regulations while avoiding regulatory takings challenges.
The Takings Clause And The Separation Of Powers: An Essay, John A. Humbach
The Takings Clause And The Separation Of Powers: An Essay, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The most fundamental environmental problem is this: across our nation there are literally hundreds of millions of acres of important natural resource lands-- farms, forests, wetlands, reservoir watersheds, shore lands, endangered species habitat--lands that have relatively little commercial value in their present natural condition, but which would have much greater commercial value if their natural values were degraded or destroyed. Stated differently, private property often will yield a much greater profit to its owner if it is used in ways that will harm or obliterate important environmental assets and values. For this reason, private owners are understandably tempted to supplant …
Supreme Court Takes A Look At Takings, John R. Nolon
Supreme Court Takes A Look At Takings, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
In the case of Pazzalo v. Rhode Island the United States Supreme Court reversed a determination by the Rhode Island Supreme Court which held that land owners had no right to sue for a regulatory taking if the land owners purchased title to land on which a preexisting restriction existed. Before this case, the rule in New York also precluded landowners from challenging land use regulations that existed at the time they purchased land. After holding that a regulatory takings challenge existed, the Supreme Court remanded the case back to Rhode Island to decide whether the preexisting regulations affected the …
Regulatory Takings: Analyzing Governmental Invasions Of Private Property Rights, John R. Nolon
Regulatory Takings: Analyzing Governmental Invasions Of Private Property Rights, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
The complicated arena of takings jurisprudence has confused lawyers, scholars, and courts for well over a century. Generally, a taking is deemed to have occurred when a governmental body takes a property right away from a private individual without providing just compensation. However, courts are unlikely to find that a regulation constitutes a taking if the regulation benefits the greater good of the public. Takings come in several varieties, most notably, “invasions” which include physical occupation and “total takings”, which deprive landowners of all economic value of their property. This article discusses how takings law has evolved into its present …
Takings And Property Rights Legislation, John R. Nolon
Takings And Property Rights Legislation, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
Over the years, regulatory takings case law has supported land use regulations by cloaking them with a presumption of validity and placing a heavy burden on their challengers of proving either that the regulation fails to substantially advance a legitimate public purpose or that it deprives the owner of all economically beneficial use of the land. Insulated in this way, regulators, on occasion, have transgressed the boundaries of fundamental fairness.
Evolving Thresholds Of Nuisance And The Takings Clause, John A. Humbach
Evolving Thresholds Of Nuisance And The Takings Clause, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This article reviews the historical tradition in which the common law core of nuisance has been the frequent subject of statutory additions and refinements, providing most of our modern law of land use and environmental protection. Until Lucas, the Takings Clause had not been treated as a charter establishing the courts as boards of revision to rethink and selectively veto legislative determinations in the land use field. Within the scope of “total takings,” however, Lucas has converted the Takings Clause from its original meaning and made it exactly that.
"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach
"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence …
What Is Behind The "Property Rights" Debate?, John A. Humbach
What Is Behind The "Property Rights" Debate?, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
Lucas v. South Carolina Coastal Council' obviously presents issues that range far more broadly than just whether people should be allowed to build on beaches and dunes. Many observers have viewed the case as a splendid opportunity for the Supreme Court to re-establish private owner autonomy in land use decisions - to cut down, perhaps drastically, on elected legislatures' traditional power to protect the environment by regulating uses of land. Behind the "property rights" debate is the question of whether states and communities really ought to have the power that they have traditionally had to control the development and patterns …
Footprints In The Shifting Sands Of The Isle Of Palms: A Practical Analysis Of Regulatory Takings Cases, John R. Nolon
Footprints In The Shifting Sands Of The Isle Of Palms: A Practical Analysis Of Regulatory Takings Cases, John R. Nolon
Elisabeth Haub School of Law Faculty Publications
It was not until the last day of the term, June 29, 1992, that the Court decided Lucas. By that time, interest could not have been greater. At issue was the validity of a regulation that prohibited all permanent development of the plaintiff's two beachfront lots. The South Carolina Supreme Court upheld the regulation by a 3-2 margin because it prevented a “great public harm.” The U.S. Supreme Court reversed that determination and remanded the case to determine whether South Carolina's common law of nuisance could prohibit the construction of single-family housing on the lots. The fractured Court delivered an …
Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach
Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The rights/freedoms dichotomy tacitly permeates Supreme Court ‘takings' jurisprudence, and it has an explanatory power which extends to virtually all ‘takings' cases decided by the Court. Its explanatory power does not, however, extend to the relatively few cases which involve the taking of ‘rights' for purely private use, that is rearrangements of existing private property rights, as opposed to takings for use by the government or its designees in some public service function. Because rearranging the existing pattern of private ownership takes ‘rights' and not mere ‘freedoms,’ we might expect, according to the rights/freedoms pattern, that the Court would uniformly …
Economic Due Process And The Takings Clause, John A. Humbach
Economic Due Process And The Takings Clause, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
The discussion which follows will examine the new verbalizations repeatedly employed in Supreme Court takings decisions of the past decade and the Court's enlistment of the just compensation requirement as a basis for undertaking substantive review of legislation. As an introduction, the distinctive historical roles and roots of the substantive due process and just compensation requirements will be reviewed.
A Unifying Theory For The Just-Compensation Cases: Takings, Regulation And Public Use, John A. Humbach
A Unifying Theory For The Just-Compensation Cases: Takings, Regulation And Public Use, John A. Humbach
Elisabeth Haub School of Law Faculty Publications
This discussion begins with some remarks concerning the concept of property as a general matter. It will then consider briefly an approach to the problem which, though promising and advanced, nevertheless falls short of achieving an internally consistent, unifying theory. Following this introduction, an attempt will be made to specify the two distinctive conceptual components of property interests on whose difference the cases seem to turn, and then to demonstrate the suitability of this conceptual distinction as the foundation for a coherent theory of the law.