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Full-Text Articles in Law
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.
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 …