Property Law and Real Estate Commons^™

Takings Law, Lucas, And The Growth Management Act, John M. Groen, Richard M. Stephens

Seattle University Law Review

In light of Lucas and the recent constitutionally questionable Washington decisions, government entities charged with implementing the GMA may have a more difficult time avoiding takings liability than previously thought. Accordingly, this Article first seeks to clarify the modern takings analysis as refined by Lucas. Second, Washington takings precedent is contrasted with the federal approach and several key changes are suggested to make state law consistent with controlling federal precedent. Third, key aspects of the GMA are identified that can be expected to raise takings implications. By identifying potential trouble spots in the GMA now, hopefully some takings will …

Land Use Control, The Individual, And Society: Lucas V. South Carolina Coastal Council , Robert M. Washburn

Maryland Law Review

No abstract provided.

The Medieval English Marriage Portion From Cases Of Mort D'Ancestor And Formedon, C.M.A. Mccauliff

Villanova Law Review (1956 - )

No abstract provided.

Dashed "Investment-Backed" Expectations: Will The Constitution Protect Property Owners From Excesses In Implementation Of The Growth Management Act?, Elaine Spencer

Seattle University Law Review

Section I briefly discusses the basic principles of takings law as enunciated by prior cases, as well as the United States Supreme Court's recent decision in Lucas v. South Carolina Coastal Council, and the Washington Supreme Court's recent decisions in Sintra, Inc. v. Seattle and Robinson v. Seattle. Although the Lucas decision has received considerable publicity, it advanced the state of the law rather little. The real guidance for future decisions arising out of the GMA will come from earlier United States Supreme Court decisions and the Washington Supreme Court's decisions in Sintra, Robinson, and Lutheran …

Reverse Mortgages: A Financial Planning Device For The Elderly, 1 Elder L.J. 75 (1993), Celeste M. Hammond

UIC Law Open Access Faculty Scholarship

An analysis of the merits of reverse mortgages from individual and public policy perspectives is the subject of Professor Hammond's article. She argues that the elderly's typical "house rich, but cash poor" problem warrants approval of a method which allows the elderly to tap their home equity for income purposes while allowing them to remain in their homes. Professor Hammond analyzes other means for tapping equity and finds each lacking in its ability to accomplish the stated goal. She also describes the three types of reverse mortgages currently available. Finally, Professor Hammond sets forth a list of legal issues that …

Mortgage Prepayment Clauses: An Economic And Legal Analysis, Dale A. Whitman

Faculty Publications

Most mortgages on income-producing real estate (as distinct from owner-occupied housing) contain clauses restricting early payment of the loan. These clauses are highly controversial, and borrowers often resist their enforcement. While other writers have discussed prepayment clauses in the recent legal literature, my objectives in this article are to advance this discussion in three respects: first, to provide an economic perspective on mortgage prepayment as support for a set of legal recommendations; second, to consider whether the bankruptcy of the mortgagor should affect enforceability of a prepayment fee clause; and third, to analyze the cumulative effect of the presence in …

Is The Growth Management Act Working? A Survey Of Resource Lands And Critical Areas Development Regulations, Gary Pivo

Seattle University Law Review

Section II of this Article begins with a summary of Washington's statutory requirements for both local resource land and critical area development regulations. Section II then reviews the circumstances under which those regulations have been adopted. Section III describes the methods used by the research team to collect and evaluate those regulations. Section IV examines whether Washington counties and cities have met their adoption deadlines. Section V describes the general approaches being taken for meeting those requirements. Section VI compares the regulations to one another in order to judge their consistency and relative restrictiveness throughout Washington. Section VII looks at …

Practice And Procedure Before The Growth Planning Hearings Boards, Wm. H. Nielsen, M. Peter Philley, Chris Smith Towne

Seattle University Law Review

In 1990, the Washington State Legislature took the first significant step toward growth management when it enacted the Washington Growth Management Act (GMA). The GMA directs cities and counties to protect natural features and to begin planning to accommodate anticipated population increases. The legislature examined the recommendation of the Growth Strategies Commission' to create an independent dispute resolution system to resolve conflicts under the GMA. The Commission recommended the use of a panel of independent arbitrators with mediation and binding arbitration. Appeals would be limited to the Washington State Court of Appeals only on constitutional and procedural issues. The legislature …

The Community Reinvestment Act: Good Intentions Headed In The Wrong Direction, Lawrence J. White

Fordham Urban Law Journal

The Community Reinvestment Act of 1977 (“CRA” or “the Act”) places an obligation on commercial banks and savings and loan associations (“S&Ls”) and savings banks (together with S&Ls, frequently described as “thrifts”) to meet the credit needs of the local communities in which they are chartered consistent with the safe and sound operation of such institutions. The Act offers no greater precision for these phrases, and the task of fleshing them out and enforcing them has been left to the bank and thrift regulatory agencies. This article argues that the CRA approach is fundamentally flawed. It is either redundant (because …

A Guide To Enforcing The Community Reinvestment Act, Richard Marisco

Fordham Urban Law Journal

The Community Reinvestment Act (“CRA”) represents a continuing, affirmative obligation on banks to meet the credit needs of their communities — including low and moderate income neighborhoods — by providing appropriate credit products and deposit services. Federal regulators have been hesitant to enforce the CRA aggressively, and community based organizations (“CBO’s”) have taken the lead in using the CRA to improve bank lending in low and moderate income communities. A combination of recent legislation and social developments ensure an increase in the CBO’s CRA enforcement activity. This Guide’s purpose is twofold. The first is to catalogue and analyze the decisions, …

The Community Reinvestment Act After Fifteen Years: It Works, But Strengthened Federal Enforcement Is Needed, Allen J. Fishbein

Fordham Urban Law Journal

The Community Reinvestment Act (“CRA”) was adopted to curb redlining, the discriminatory mortgage lending practice whereby lenders refuse to make loans to certain geographic areas based on the racial or ethnic composition of those areas or the age of their housing stock. The law reflected Congressional judgment that lending institutions were overlooking important credit needs within their local communities and that the banking regulators’ efforts were inadequate to deter this neglect. Although the law was rarely enforced, some organized community groups made it work. Today’s climate of bank restructuring presents new challenges to making the law effective. Despite its apparent …

Planner's Panacea Or Pandora's Box: A Realistic Assessment Of The Role Of Urban Growth Areas In Achieving Growth Management Goals, Keith W. Dearborn, Ann M. Gygi

Seattle University Law Review

Over the past twenty years, Urban Growth Areas (UGAs) have become a tool of choice to manage growth. Numerous states and local jurisdictions have mandated UGAs in hope of confining urbanization, reducing sprawl, protecting open space and resource lands, and minimizing infrastructure investment. Washington State joined the trend in 1990 when it adopted the Growth Management Act (GMA), which requires certain counties to establish UGAs as a central component of its "bottom up" growth management strategy. Nonetheless, thoughtful criticisms have been offered regarding the utility of UGAs to accomplish intended growth management goals, and concerns have emerged regarding unintended consequences …

Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness

Law Faculty Scholarly Articles

In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …

Reclaiming The Public Domain By Repeal Of The Mining Law Of 1872, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This paper offers an analysis of the new allocation of burdens and benefits in the use of public lands as contemplated by the proposed legislation. In Part III, I discuss the acquisition of property rights under the General Mining Law of 1872. In Part IV, the theory of property in general is explained along with the types and nature of property interests inhering in, and arising from, a mining claim. I explain the recent efforts in Congress to reform the mining law in Part V and the concept of a taking of property in general in Part VI. I discuss …

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

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 …

Between Scylla And Charybdis: Growth Management Act Implementation That Avoids Takings And Substantive Due Process Limitations, Jeffrey M. Eustis

Seattle University Law Review

This Article begins with an overview of the GMA. It then proceeds with a summary of recent case law under the Takings Clause and substantive due process doctrine. After laying this groundwork, this Article focuses on four particular areas of growth management control and explores how local legislation implementing these areas of control would be analyzed under the Takings Clause and substantive due process. These four areas of land use regulation include: critical area protections, resource land designations, development phasing requirements for concurrency and urban growth areas, and impact fees for public facilities and services. This Article then concludes with …

Notes: Commercial Law — Consumer Protection Act — Landlord-Tenant — Remedies — Private Action By Tenant Under Maryland's Consumer Protection Act Requires Demonstration Of Actual Loss Or Injury, I.E., Diminution In Rental Value, In Order To Justify Restitutionary Award Of Rents Paid For The Lease Of Unlicensed Residential Property. Citaramanis V. Hallowell, 328 Md. 142, 613 A.2d 964 (1992), Michael B. Macwilliams

University of Baltimore Law Review

No abstract provided.

Freedom Of Speech And Press

Touro Law Review

No abstract provided.

The Concurrency Requirement Of The Washington State Growth Management Act, Thomas M. Walsh, Roger A. Pearce

Seattle University Law Review

When the Washington State Legislature enacted the Growth Management Act (GMA) in 1990, it established a concurrency requirement in the transportation area and authorized local governments to establish concurrency requirements in other areas such as schools, parks, and public services. This Article seeks to inform the debate as to the GMA's requirements for concurrency regulations, the key issues in implementing concurrency regulations, and statutory and constitutional limits on the implementation of regulations. After detailing the GMA's transportation concurrency requirement, the Article will discuss whether the GMA requires concurrency for public facilities other than transportation, will highlight the key issues in …

Hendler V. United States: Preserving Private Property Rights In The Face Of Environmental Regulation, William E. Remphrey Jr.

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Pensions And Passivity, Gregory S. Alexander

Cornell Law Faculty Publications

This article discusses how modem fiduciary law has extended equity's tradition of constructing ownership as passive through the corporate pension system. It examines how the corporate pension system as a mode of owning pooled capital is a new stage of passive ownership. This stage creates a different aspect of the familiar problem of separating control from beneficial ownership. Berle and Means argued that the problem that the separation of control from ownership created was economic. The interests of managers and shareholders in the modern corporation diverge, and, they argued, this divergence diminishes the overall efficiency of the modern economy, dominated …

Thinking Property At Rome, Alan Watson

Scholarly Works

It is a commonplace among writers on slavery that there is an inherent contradiction or a necessary confusion in regarding slaves as both human beings and things. In law there is no such contradiction or confusion. Slaves are both property and human beings. Their humanity is not denied but (in general) they are refused legal personality, a very different matter.

Things as property may be classed in various ways, and the classification may then have an impact on owners' rights and duties. A thing may be corporeal or incorporeal, immoveable or moveable. Some moveables may be classed as res se …

When A Hotel Is Your Home, Is There Protection? - Baker V. Rushing, Amy M. Campbell

Campbell Law Review

First, this Note will provide a brief history of landlord-tenant law, tracing the common law through the development of pro-tenant reforms. Then, this Note examines the distinction between a tenant and a guest and the legal consequences of that distinction. This Note also discusses the rationale behind the Baker decision and its legal implication. This Note concludes with suggestions of the broader ramifications of Baker.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Annual Survey Of Virginia Law: Property Law, L. Charles Long Jr.

University of Richmond Law Review

While the Supreme Court of Virginia handed down decisions of significance dealing with the ownership and operation of real property in the Commonwealth during the past year, in most cases the court was content to apply well-settled law in new fact situations, or to extend the boundaries of such law gently into new territory. The General Assembly, for its part, spent most of its energy clarifying existing legislation or repairing portions of statutes which, either in operation or in prospect, needed relatively minor modifications. The foregoing statements are not intended to belittle the cases which were decided and the legislation …

New York Adverse Possession Law As A Conspiracy Of Forgetting: Van Valkenburgh V. Lutz And The Examination Of Intent, Lila Perelson

Cardozo Law Review

No abstract provided.

Harmful Use And The Takings Clause In The Eye Of The Beholder: Lucas V. South Carolina Coastal Council, Charles H. Clarke

Cleveland State Law Review

Whichever of these two possibilities prevails, both possibilities require the courts to perform essentially legislative functions regardless, in other words, of whether public ecological resources receive insufficient or ample protection from private enterprise that wants to consume them. The traditional Takings Clause precedents, on the other hand, would give public ecological resources and private property ample protection with minimum judicial oversight. The traditional position seems preferable for this reason.

Federal Recent Developments

American Indian Law Review

No abstract provided.

A Uniform And More Rational Approach To Rents As Security For The Mortgage Loan, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

In this Article the author provides an introduction to the problems associated with assignments of rents by discussing the nature of rents and their treatment in the absence of an assignment. Next, the author will examine in detail the issues arising with regard to assignments of rents under current law both in and outside of the bankruptcy context. Finally, the author will discuss the proposal that rents be integrated into Article 9 of the UCC.