Wednesdays on the Steps – The Takings Clause

I live outside of Washington DC and each spring hundreds of thousands of tourists descend upon the city. It's our nation's capitol, and it's an amazing place to visit. Tourism is at the heart of a case the Supreme Court has decided to review.

The Supreme Court has agreed to hear a case which could determine whether the judiciary "can eliminate important property rights and leave the owner without a remedy." The case came about due to tourism. Some Florida landowners have decided they would rather have no beach at all than have a beach covered in tourists. Florida had launched a beach restoration initiative to rebuild eroding land. The refreshed coastline however becomes public property.

That is what Florida's beach restoration and renourishment program has been doing statewide for years, pumping in wide new strips of sand to save eroding shorelines.

But the Lindsays and other homeowners challenged the program because it comes with a catch: The new strips of beach belong to the public, not the property owners. They feared their waterfront view of bleached sand and sea oats would include throngs of strangers toting umbrellas and coolers.

The Florida Supreme Court disagreed that the homeowners' property rights had been infringed upon just because their waterfront property line may not actually touch the water.

And that decision, in turn, has created a new challenge from the landowners: that the state high court ditched 100 years of common law to endorse the popular beach renourishment program, depriving them of their constitutional rights.

It is the latter charge that created the unusual case that the U.S. Supreme Court will hear next week. Justices will examine a concept they have pondered for more than 40 years without resolution: whether a decision by the judicial branch, rather than the executive or legislative, can create the kind of taking of private property forbidden by the Constitution.

Read the full story here.

Also this week the New York State Court of Appeals has cleared the way for the use of eminent domain to seize property to build a new arena for the New Jersey Nets. ACORN has been a proponent of the development plan, but this decision seems at odds with the constituency they claim to defend.

The Associated Press - Tuesday, November 24, 2009; 12:27 PM ALBANY, N.Y. -- New York's top court ruled Tuesday that the state can use eminent domain to force homeowners and businesses to sell their properties for a massive development in Brooklyn that includes a new arena for the New Jersey Nets.

In a 6-1 ruling Tuesday, the Court of Appeals said the Empire State Development Corp.'s finding that the area was blighted was enough to justify taking the land.

A group of tenants and owners claim the seizure is unconstitutional. They argue that developer Bruce Ratner's proposed $4.9 billion, 22-acre Atlantic Yards project mainly enriches private interests, while the state constitution requires public use for taking land.

"The constitution accords government broad power to take and clear substandard and insanitary areas for redevelopment," Chief Judge Jonathan Lippman wrote for the majority. "In so doing, it commensurately deprives the judiciary of grounds to interfere with the exercise."