Knick v. Township of Scott: Takings Advocates' Nonsensical Forum Shopping Agenda

by John Echeverria | September 28, 2018

On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred.

The Knick case presents the opportunity for the Court to decide whether or not to embrace a longstanding goal of property advocates: to overturn the 1985 precedent of Williamson County Regional Planning Commission v. Hamilton Bank, which channels most takings lawsuits arising from local zoning and other similar land use disputes into state court. In my view, Williamson County was correctly decided, its essential premises have been repeatedly affirmed by subsequent Supreme Court decisions, and the Court should reject the invitation in Knick to overturn its precedent.

The present case arose when Rose Mary Knick objected to an ordinance adopted by her Pennsylvania community requiring property owners to maintain and allow public access to private cemeteries located on rural properties. While the ordinance intrudes on landowner privacy, there is a large, venerable body of state property law recognizing citizens' rights to visit the graves of their ancestors on private lands. Subjecting landowners to the slight inconvenience of allowing the living ...

From Surviving to Thriving -- Coastal Storms, Private Property, and the Takings Issue

by John Echeverria | September 25, 2018
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters. On October 29, 2012, Hurricane Sandy made landfall on the New Jersey shore, claiming dozens of lives and destroying or damaging more than 300,000 homes. Properties along the shore were especially hard hit, with many oceanfront homes lifted off their foundations and tossed inland. All told, business losses were estimated at more than $30 billion. While no single ...

Looking Back on Lucas

by Daniel Farber | December 11, 2017
Lucas v. South Carolina Coastal Commission was the high-water mark of the Supreme Court's expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation. Lucas epitomized the late Justice Scalia's crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ...

The Flood of Takings Cases after Hurricane Harvey

by John Echeverria | October 23, 2017
On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes ...

Murr v. Wisconsin: The 'Whole Parcel' Rule Prevails, At Least in This Regulatory Takings Case

by Robert Glicksman | July 05, 2017
Originally published by the George Washington Law Review How should a court assessing a regulatory takings claim define the "property" allegedly taken to assess the degree of the economic impact the regulation has on it? That question has plagued the Supreme Court for nearly a century, with different and conflicting answers emerging, sometimes in relatively rapid succession. In Murr v. Wisconsin,[1] the Court has provided its most comprehensive answer to the so-called "denominator" question so far, although even the analytical framework ...

CPR's John Echeverria's NY Times Op-Ed on Supreme Court's Latest 'Takings' Decision

by Matthew Freeman | June 28, 2013
CPR Member Scholar John Echeverria has an op-ed in Wednesday's New York Times on the Supreme Court's end-of-term decision in a land-use case, Koontz v. St. Johns River Water Management District. Although the case has been somewhat overlooked amidst the Court's evisceration of the Voting Rights Act, and its landmark decisions on same-sex marriage, it has long-term and critical implications. Echeverria warns that the decision will: result in long-lasting harm to America’s communities. That’s because the ruling creates a perverse incentive ...

In Stop the Beach Renourishment Ruling, Conservatives Come up One Vote Short in Quest to Remake Property Rights Law

by John Echeverria | June 17, 2010
If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” ...

The Florida Beach Case Comes to Supreme Court: A Badly Flawed Test Case for Property Rights Advocates

by John Echeverria | November 30, 2009
On Wednesday, the U.S. Supreme Court will hear oral argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection. By the time they finish hearing from both sides, the justices may wonder whether this case was worth their time and effort. (My amicus brief on the case is here). Petitioner is a small non-profit organization whose members own coastal properties in two communities along the Florida panhandle. Petitioner’s primary argument is that its members suffered “takings” of their ...

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