Property Law and Real Estate Commons^™

Agenda: Water And Growth In The West, University Of Colorado Boulder. Natural Resources Law Center, The William And Flora Hewlett Foundation

Water and Growth in the West (Summer Conference, June 7-9)

1 v. (various pagings) : ill., maps ; 29 cm. + 1 CD-ROM (4 3/4 in.) + supplement (207 p. ; 29 x 24 cm.)

"Conference co-sponsor The William and Flora Hewlett Foundation."

Conference moderators included University of Colorado School of Law professors Gary C. Bryner, James N. Corbridge, Jr., David H. Getches, Douglas S. Kenney, Kathryn M. Mutz, Peter D. Nichols and Charles F. Wilkinson.

Accompanied by: CD-ROM (4 3/4 in.) and supplement (xiv, 140, [49] p.)

Includes bibliographical references

The event will cover a breadth of issues, including demographics and water-use trends, improved planning and efficient use, implementation …

Growth Pressures And Tmdls, David G. Davis, Jamal M. Kadri, Teresa J. Norfleet

Water and Growth in the West (Summer Conference, June 7-9)

18 pages.

Petition For A Writ Of Certiorari, Cayetano V. Chevron Usa, Inc., No. 00-1198 (U.S. Jan. 24, 2000), J. Peter Byrne

U.S. Supreme Court Briefs

No abstract provided.

The Boundaries Of Private Property, Michael A. Heller

Articles

If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …

The Original Understanding Of The Takings Clause, William Michael Treanor

Georgetown Environmental Law & Policy Institute Papers & Reports

The champions of the property rights movement claim that they are fighting to restore the original understanding of the Takings Clause of the Fifth Amendment. They invoke James Madison and other founding fathers as support for proposed statutes that require the federal government to pay property owners when it prevents them from harming the environment or jeopardizing the survival of endangered species. Wetlands regulation, it is often said, "takes" property by diminishing its value, and the founders adopted the Takings Clause to ensure that, when government regulations diminished the value of property, the owner would receive compensation. Increasing numbers of …

Takings Law And The Regulatory State: A Response To R.S. Radford, William Michael Treanor

Fordham Urban Law Journal

In the Winter 1994 issue of the Fordham Urban Law Journal, R.S. Radford reviewed Dennis Coyle's book "Property Rights and the Constitution." Radford's theory relies on the idea that property rights deserve greater constitutional protection than they have received in the 60 years since the Supreme Court accepted the legitimacy of the regulatory state. This article reviews Radford's interpretation and criticism of Coyle's theory, analyzes Radford's theories in light of recent cases, and discussed the constitutional implications of Radford's analysis and how they relate to the economic regulations that they empower.

Takings And Water Rights [Includes Unsigned Annotations By David Getches], David H. Getches

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

13 pages (includes 1 illustration).

Includes unsigned annotations by David Getches.

Market Dynamics And The Siting Of Lulus: Questions To Raise In The Classroom About Existing Research, Vicki Been

West Virginia Law Review

No abstract provided.

Regulation Of Wetlands In Western Washington Under The Growth Management Act, Alison Moss, Beverlee E. Silva

Seattle University Law Review

Wetlands protection has long been an important issue in the central Puget Sound. With the passage of the Growth Management Act (GMA), all counties and cities within the state are now required to adopt regulations "protecting" critical areas, including wetlands. This requirement furthers the GMA's environmental goal to "[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water." This Article will explore these and related issues arising under the wetlands regulatory scheme in Washington following the adoption of the GMA. It will show how this complex, multi-layered regulation scheme …

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 …

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 …

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 …

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 …

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 …

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 …

Tenements And Takings: Tenement House Department Of New York V. Moeschen As A Counterpoint To Lochner V. New York, Judith A. Gilbert

Fordham Urban Law Journal

“The sharp rightward shift in land use law, and particularly in ‘takings’ jurisprudence, in the 1980s prompted anguished responses from advocates of government regulation who characterized the trend as a ‘return to the good old days of Locke and Lochner,’ ‘the Reagan Revolution's Lochnerian [r]eturn,’ ‘a revival of decisions like Lochner,’ ‘origins [in] the set of beliefs associated with the Lochner era,’ and ‘Back to the Future: From Nollan to Lochner.’ Critics were reacting in particular to an ominous alignment in the constitutional heavens: a constellation of United States Supreme Court decisions restricting the ability of state and local governments …

Death By Sepa: Substantive Denials Under Washington's State Environmental Policy Act, Roger Pearce

Seattle University Law Review

This Comment seeks to answer the question raised by West Main II and Cougar Mountain of what procedural processes and substantive policies may be used in SEPA-based denials. After examining the nature of substantive SEPA authority and the relationship between substantive SEPA and Washington's vested rights doctrine, the Comment will discuss West Main II and Cougar Mountain and will argue that the two cases are consistent. It will then provide an informative assessment of the current limits of substantive SEPA authority. The Comment concludes by suggesting the following legislative or judicial changes in SEPA law: earlier vesting of SEPA policies, …

Arcata Sports Complex Project, Susie Van Kirk

Susie Van Kirk Papers

The City of Arcata is developing a sports complex, including playing fields and structures, on its property lying south and west of 7th and Union Streets. Prior to the commencement of construction, an archaeological investigation was performed to determine the extent and significance of a previously-identified prehistoric site. In addition to artifacts associated with the prehistoric time period, historic artifacts were also encountered. To assist in the evaluation of these artifacts, research of the historic component of the property was undertaken. This report discusses the historic environment and land use, land ownerships, biographical information on some of the families associated …

Jack Shaw Bridge, Susie Van Kirk

Susie Van Kirk Papers

To adequately assess the historical significance of the Mad River suspension bridge near Mountain View, commonly referred to as the Jack Shaw Bridge, it was necessary to research not only the bridge but the surrounding area as well. Resulting information provides a context or association for understanding the bridge's role in local history.

First English: The Fifth Amendment Requires Just Compensation For A Regulatory Taking, Anne E. Sheppard

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Law: Is Time Running Out For The Government To Dispute Regulatory Takings - Irst English Evangelical Lutheran Church V. City Of Los Angeles, Sharon A. Woodard

Campbell Law Review

This Note will trace the evolution of regulatory "temporary" takings from its roots in traditional eminent domain law and examine the practical effects of the Court's decision on regulatory takings analysis. The analysis will specifically question what period of time during the pendency of takings litigation will constitute a "considerable" enough length of time that it becomes a factor in takings analysis and remedies. This Note will conclude that although the First English decision will increase the number of challenges to regulator actions and increase regulator liability it probably will not enhance the actual compensation amount that aggrieved landowners receive.

Regulatory Taking: A Contract Approach, Ross B. Lipsker, Rebecca L. Heldt

Fordham Urban Law Journal

This Article begins by defining the parameters of the fifth amendment's taking clause. The Article then reviews the various tests used in determining whether governmental action constitutes a taking, and discusses the recent Supreme Court decisions within the framework of case law as it has evolved since the Court's 1922 landmark decision, Pennsylvania Coal Co. v. Mahon. Finally, the Article suggests a formula based on well-established contract principles for analyzing the impact of land use regulation on private property interests.

Toward An Economic Understanding Of Touch And Concern, Jeffrey E. Stake

Articles by Maurer Faculty

No abstract provided.

Aesthetic Regulation: A New General Rule, Michael Pace

West Virginia Law Review

No abstract provided.

For Unifying Servitudes And Defeasible Fees: Property Law's Functional Equivalents, Gerald Korngold

Articles & Chapters

While property scholars have argued persuasively for a unified law of servitudes and for a unified law of defeasible fees, Professor Korngold argues that further unification is necessary: the law should integrate servitudes and defeasible fees involving land use controls. Because these interests are functional equivalents, judicial results should not depend on the historical label attached to the interest. Courts should address the tension between freedom of contract and free alienability values that inhere in both interests. Professor Korngold focuses on significant issues that arise in both defeasible fees and servitudes contexts, including the forfeiture remedy, ownership in gross, permissible …

Emerging Policy And Strategy Choices For Protection Of The Groundwater Resource, Richard H. Braun

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

22 pages.

Contains 2 pages of references.

Antitrust Implications Of Municipal Land Use Planning, Victoria M. Mather

Faculty Articles

Congress enacted the Local Government Antitrust Act of 1984 in response to outcomes in many well-publicized cases and from widespread criticism of the state action doctrine as applied by the courts. The state action exemption as used by the courts today is riddled with analytical and practical problems. The Local Government Antitrust Act of 1984 shields municipal governments from monetary damage awards for violations of antitrust laws, but the act did not go far enough.

A few state legislatures have either considered or enacted statutes protecting municipalities from state or federal antitrust liability. However, preemption analysis is problematic because it …

Time, Property Rights, And The Common Law, Thomas W. Merrill

Faculty Scholarship

The fee simple is often defined as an estate or interest of "potentially infinite duration." This way of speaking suggests that property rights are fixed and permanent – indeed, that they last forever. Similarly, property rights are regarded in classical liberal thought as sources of stability and security that foster individual autonomy and protect owners against the vicissitudes of life. This too suggests that property rights are not contingent upon a particular temporal context, but rather are impervious to the passage of time.

When we look at the common law, however, we quickly discover a much more complex relationship between …

Alford-Nielson House, Susie Van Kirk

Susie Van Kirk Papers

Chain of title for original lot on Main Street in downtown Ferndale.