Detroit in Ruins
Not the most cheerful way to ring in the new year, but the Guardian just published a series of provocative photographs of decaying cultural landmarks in Detroit. A bitter reminder that Detroit's problems started long before the current economic troubles. You can find the photos here.
Tanya Marsh
Dick Flavin’s “Red Sox Rhymes” gives us one gem after another. Here’s one:
“Take me out to the ballgame.
First, let’s stop at the bank.
I’ll need a mortgage so I can pay.
Parking the car is another outlay.
And you can pay big bucks for a hot dog,
The cost of beer is insane.
For it’s Oh my! Prices high
At the old ballgame.”
Boston Archdiocese's Use of Restrictive Covenants
Over at the Faculty Lounge, Al Brophy has a great round-up of the Boston Archdiocese's aggressive use of restrictive covenants when it sells property:
One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials. One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography. A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.[...] There are a ton of interesting things to talk about here. I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club. [...] What interests me in particular are the restrictions on abortion. Couple of things to think about here. The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement. Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.
Restrictive Covenants in Custom Home Subdivisions
The Indianapolis Star has an interesting article recently describing a situation that is doubtlessly concurring in many upscale communities across the country. There are several subdivisions in Hamilton County, just north of Indianapolis, that were marketed as available to custom home builders only. The large lot sizes, large home sizes, and required architectural features were supported by both restrictive covenants and zoning restrictions. But, as you may have heard, the economy crashed. Many smaller custom home builders in Indianapolis have gone out of business. The original developers of the subdivisions either lost unbuilt lots to the bank or have been forced to sell them in a bulk sale to production home builders.
So the people who built their $1 million plus custom dream homes (which is a VERY VERY nice house in Indianapolis) in these subdivisions are now battling to keep out the $350,000 to $500,000 production homes.
Lawsuits have already been filed, so I suspect that we will be seeing more appellate court decisions across the country soon interpreting restrictive covenants that the homeowners understood as limiting the subdivisions to custom-built homes.
Tanya Marsh
It's one of the many good deeds for which churches are known, but now a judge has ruled that feeding the homeless is against the law. The ruling is against CrossRoads United Methodist Church in north-central Phoenix and it says that the church is operating as a charity dining hall, which breaks a city zoning ordinance.
The area where the church is located -- Central and Northern avenues -- is zoned as primarily residential. Charity dining halls are considered businesses.
The controversy swirling around the church's weekly pancake worship service started last spring when neighbors complained about an increase in the number of homeless people in the neighborhood, panhandling, burglary, public intoxication and vandalism, among other things.
"We can minister to the poor ... that’s a given," wrote Rev. Dottie Escobedo-Frank on the CrossRoads Web site. "We can hold a worship service for them out on the front lawn. We just can’t feed them. We can’t fill their bellies with warm food. We might as well just go to the street corners and start handing out money, in hopes they will make their way to some food, because you are not allowed to do it at church!"
The decision affects all churches that are located in Phoenix residential areas.
CrossRoads, which maintains that it is operating as a church and not a charity dining hall, plans to appeal the decision. They have until Nov. 24 to do that.
On a bright, clear morning in April 2013, two professional poker players from California were heading west on Interstate 80 in rural Iowa when they were stopped by two Iowa State Troopers.
Before that stop was over, the officers had seized $100,000, which the men said was money to play poker. The troopers also called ahead to California authorities, who raided the men's homes and ultimately indicted one of them, John Newmerzhycky, on a charge of illegal possession of drug paraphernalia.If this sounds unusual and way out of the ordinary, it isn't. The seizure is just one of thousands of highway stops that state and local authorities call "interdictions:" Roadside stops aimed at catching drug dealers or even terrorists, but which can also result in cash seizures alone with no criminal charges attached.It's called Civil Asset Forfeiture, and it was started in the early 1980s by the Justice Department. It has since migrated to thousands of state and local jurisdictions nationwide. The program, when it originated, was meant to target and take money authorities believed was connected to crimes.A legal advocacy group based in Washington called the Institute for Justice has been battling Civil Asset Forfeiture for years."It violates due process for Americans," said Larry Salzman, an attorney for the group. "It's wrong. It's a simple premise that the government should not be taking money from people who have done nothing wrong. It shouldn't be taking money from people who have not been charged, let alone convicted, of any crime."
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.
Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.
I have a set of Knee Defenders, the devices that hook onto the tray table of an airliner seat back and prevent the seat from reclining.When I mention this to people, they express shock, as if it is something beyond the moral pale, like taking candy from children or not tipping above 15 percent.It’s an even a worse offense in the eyes of my colleague Josh Barro, who argued this week for the primacy of the economic rights of the recliner. He calls using a Knee Defender theft.The real problem is undefined property rights over the same four or five inches of space. People don’t agree on who has the rights. The airlines leave it foggy.“As for what customer has the ‘right,’ I think what we can say is the in-flight experience is much better when passengers are courteous to each other and flight crews,” said Paul Flaningan, a spokesman for American Airlines.
The person who wants it most will end up owning the rights, but the person with the recliner button holds an advantage. The Knee Defender reallocates the rights. Now I can claim the four inches in front of my face.
The problem seems akin to people walking on a 48-inch city sidewalk with those ridiculous 54-inch-wide golf umbrellas. Or is a better analogy the range wars of the American West in which cattlemen try to stop the farmers until Shane fights back with his ivory-handled Colt revolver?Using a Knee Defender may seem uncivil, but it is not: It just evens the playing field. Instead of having the guy in front of you slam the seat back and wait for $50, as Mr. Barro suggests, with a defender you can now negotiate.“It gives you the chance to be human beings,” says Ira Goldman, the inventor of the Knee Defender, who has seen traffic to his online store rise 500 times above average since an altercation last weekend on a United flight involving his device. “Do you want the conversation to start before the laptop screen is cracked or after it is cracked?” he asks. “Like Max Bialystok and Leo Bloom in “The Producers,’ the airlines sell 200 percent of that space.”The airlines have also failed to establish property rights for armrests, but there is a generally understood code for that: The person in the aisle has room to stretch, the person in the window seat has the fuselage to lean against, and the person in the middle has nothing, so he or she gets the armrests.Most reasonable people agree, although I once had a seat mate on the aisle who insisted the armrest was his. After a little jockeying for ownership, he began pulling hairs from his nose and lining them up on the armrest. “You win,” I said.But I have a moral code for users of the Knee Defender. If those in front of you never notice or care, then no harm done. When they do notice, what usually happens is that they complain to a flight attendant that the seat is broken. The flight attendant will know immediately what’s up. In that case you remove them at once and, if necessary, apologize. (No major airline condones their use because they can cause a ruckus in the cabin, as happened last Sunday when a pilot had to divert a plane to eject two unruly passengers.)Mr. Goldman, a former Senate aide who got the idea during a long flight, says people don’t want to use his devices but have no other solution. He offers a card on his website that he suggests you give to the person in front of you. It says, in part:
If you would like to recline your seat at some point during the flight, please let me know and I will try to adjust myself and my Knee Defender so that it can be done safely.I realize that this may be an inconvenience. If so, I hope you will complain to the airline. Maybe working together we can convince the airlines to provide enough space between rows so that people can recline their seats without banging into other passengers.Thank you for your understanding.That card, with its passive-aggressive tone, is just asking for trouble. And it cannot change the reality: The way the system is now designed, the recliner has every incentive to push the button and recline. The Barro pay-me solution gives the recliner even greater incentive to always do so.Airlines could solve the problem by declaring themselves Reclinists or Knee Savers, and passengers could choose which airline to fly based on that (or at least would know what to expect on board).Until then, the Knee Defender reallocates the property rights. Using it makes you no more or less of a jerk than the person who always reclines.Excuse me now while I go online to order the Kid Bagger for that toddler who will be kicking the back of my seat with her steel-toed Mary Janes.
Harvard Law School professor Noah Feldman has asked, “The next time airport security tells you to put your hands over your head and hold that vulnerable position for seven seconds, ask yourself: Is this the posture of a free man?”
In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.
The Upside Down World of Financial Takings
Speaker: Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
DATE: Tuesday, March 4, 2014
TIME: 12:00 - 1:00pm
College of Law, Auditorium
Approved for 1 CLE credit hourDESCRIPTION:Modern takings law tends to concentrate on the distinction between physical takings by occupation and regulations of land use. Financial claims fit only uneasily into this two part landscape. The lack of a coherent theory of how financial liens and contract claims should be treated has led to some serious confusion in the area. There are many cases, such as the recent dispute over the private stock holdings in Fannie Mae and Freddie Mac where courts often do not supply enough protection to property interests against confiscation, and other cases, like the pension claims by union workers against the state, where the constitutional protection is too strong. In this lecture Professor Epstein will develop a unified approach to government takings to explain why today's dominant legal approach has it backwards.
The Nebraska Real Estate Law Society will be hosting local real estate attorney Jan Beran Tuesday, November 19th from 12:10 - 1:00 in room 111.
Jan will be speaking about landlord-tenant law and his general practice as a real estate attorney. Anyone interested in keeping their rent deposit is encouraged to attend. If you have already given up hope on your deposit, this is also a great opportunity to learn about tenant rights, evictions, rental agreements and other landlord-tenant issues.Pizza will be provided, so please RSVP by Monday at noon.
Thanks,--
Ryan DorceyJ.D. Candidate 2015
University of Nebraska College of Law
rdorcey@unomaha.edu
(402)-366-9316
[A]nd the government condemned their land. An old man told me recently that his aunt, a single woman in old age, refused to leave her house. "She just kept going back there," he said. "They'd come and take her away, and pretty soon she'd be back. Finally, they had to go down there and break all the windows out of the house to get her to leave." The signs read Recreation Area. Her house is underneath it somewhere.
Fishing Pier at Sandbridge Beach, Virginia, July 2008 (photo by Becca Duncan)
Anderson v. Gouldberg
Supreme Court of Minnesota, 1892
53 N.W. 636
Property
The plaintiffs had stolen some wood,
And defendants took more than they should.
"The last wrongful getter
Has title no better,"
And the court for the plaintiffs so stood.
NIMBY Au Francais
Bernard Arnault, the man who runs the Louis Vuitton fashion house, finds himself in a bit of a donnybrook with a local nighborhood association over the construction of a museum to house his art collection. Arnault has begun construction of his art palace in the middle of the Bois de Boulogne Park, upon land donated by the City of Paris. According to the NY Times, local neighbors object to this intrusion and make a simple argument: "the park is intended for the public, the museum is next to a children’s playground, and the building itself violates the rules governing the park by blocking a paved roadway that should be open to the public." This reasoning carried the day in a recent court battle. A judge annulled the building permit with construction on the museum half-finished.
Arnault and his powerful friends frame the issue differently. They argue that the neighbors “show a blind and pernicious individualism that goes against the general interest. They oppose any change for the sake of it. In their tight little suits, they want to put Paris in formaldehyde. It’s quite pathetic.”
The Times concludes that "this being France, and Mr. Arnault being a sort of Ozymandias, he is likely to get his pyramid anyway" - the French Parliament is in the process of overriding the court's decision and granting the museum a special waiver.
Asmara Tekle-Johnson (Thurgood Marshall) has posted two articles about sex offenders and land use controlls on SSRN:
The first is In the Zone: Sex Offenders and the Ten-Percent Solutions; here's the abstract:
At first glance, sex-offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than ten percent of the very real problem of child sex abuse, as family members and acquaintances of children commit more than ninety percent of this abuse. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and social margins, condemning many low-risk offenders to a lifetime of isolation while breeding optimal conditions for high-risk offenders to reoffend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a false sense of security.
This Article challenges prevailing judicial orthodoxy that many sex-offender residency restrictions are constitutional under the Ex Post Facto Clause. The Article applies the analytical framework of Smith v. Doe, the U.S. Supreme Court's most recent case involving sex-offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The Article proposes an innovative "positive" zoning scheme, the Sex-Offender Containment Zone, which zones high-risk convicted sex offenders back into the city in a manner that is effective, humane, and constitutional.The second is Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation; here's the abstract:This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal "who" covenants, such as those based on race, age, disability and often permanently debilitating sex offender status, that run afoul of public policy norms-most particularly, the wide availability of safe and decent housing for all.
The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children whereas the underlying fear in the era of racial segregation was that black men, this country's original sexual predators, would sexually prey upon infantilized white women. Subsequently, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders. Finally, it asks whether the burgeoning phenomenon of sex offender covenants foretells the rise of similar private restraints based on sexual orientation.
In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.
Al Gore and his acolytes equate the internal-combustion engine with climate change, overconsumption and environmental devastation, and the mayors of trendy towns like Seattle and Portland have declared war on the automobile as the enemy of civilized values. For enlightened souls of the "Millennial Generation," cars have become surprisingly uncool—riding light rail, bicycles or even buses is a healthier, more politically correct alternative.
It should come as little surprise then that conservatives—happily tuned to talk radio while they drive—remain the great defenders of the automobile. Cars appeal powerfully to one of the most important conservative values: individual freedom. Straphangers in public conveyances can only travel in groups, moving along with hordes of strangers according to schedules imposed by others. Bicyclists, free as they may be, are clearly limited by distance and time constraints. Once you get into a car, however, you go wherever you want, whenever you want, subject only to your ability to put gas in the tank.
Those who relish that sense of freedom, and make the requisite sacrifices to enjoy it, will quite naturally ride to and from work in splendid isolation. Sure, people on the right of a certain age may prove more likely to expend emotion in saying farewell to one specific car, but we will never go along with the idea of saying goodbye to the automobile.
As you plan your week, please plan to join us on Thursday at noon in Hamann Auditorium for the Pound Lecture, "Is Government by ‘Reflection and Choice’ a One-Time Experience?" by Professor Sanford Levinson. In his lecture, Levinson will discuss Alexander Hamilton's emphasis in Federalist #1 on the opportunity of Americans to engage in unfettered “reflection and choice” about the system of government they wish to live under. An obvious question is what meaning his argument has for us in 2013, as distinguished from the audience to which he was writing in “real time.” Do we today wish to engage in genuine “reflection and choice” about our governmental institutions? In answering this question, it is interesting to compare the United States and American state constitutions (very much including Nebraska’s) with regard to the opportunity and actuality of such “reflection and choice.”We are very fortunate to have someone of Professor Levinson's stature join us. Please help us make him feel welcome by attending his lecture this Thursday.
Friday, February 22, 2013
Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case
By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food. A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:
this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....
Asset Forfeiture Abuse
From Volokh: John Ross of Reason has a nice article outlining the problem of asset forfeiture abuse, as illustrated by the scandalous practices in the nation’s capital:
Jerrie Brathwaite was not in her car when Washington, D.C. police seized it in January 2012. She had lent her 2000 Nissan Maxima to a friend, and that friend was pulled over, searched, and found to be in possession of drugs. A year later, Braithwaite—who has never been charged with a crime—still doesn’t have her car back, and no one from the Metropolitan Police Department (MPD) will return her calls.Brathwaite, 33, is knee-deep in the murky world of civil asset forfeiture, where confiscated cars, cash, and other property disappear into police coffers, and where legal recourse for owners is confusing, slow, and expensive. Under civil forfeiture, police can seize property from people who are never convicted—much less charged with—a crime. Unlike criminal forfeiture, where the government must prove property was used in the commission of crime, civil forfeiture law presumes an owner’s guilt....Brathwaite’s situation—and the MPD’s behavior—are not uncommon. Civil forfeiture is a national problem. Law enforcement agencies seize millions of dollars worth of property each year with little or no due process for owners. In all but six states property owners are considered guilty until proven innocent. State law typically allows law enforcement to keep most or all of the proceeds from forfeiture—an enormous incentive to police for profit.Ilya Somin has previously covered this topic here.
Steve Clowney
SCOTUS Grants Cert in Takings Case (Koontz v. St. John's)
Yesterday I noted that the U.S. Supreme Court was set to consider a cert petition in the “exaction” takings case of Koontz v. St. John’s River Water Management District. Today, the Court granted that petition, which the Pacific Legal Foundation had filed on behalf of Coy Koontz this past spring.
The Koontz case raises two important questions: (1) whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands; and (2) whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed. Drawing from several of my earlier posts on Koontz (available here and here), below I will attempt to provide a primer on the facts and the issues at stake.
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Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, presumably to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this peculiar framework, it is the government—as the defendant— who has the burden of proving that the exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.
Here, Mr. Koontz hoped to construct a shopping mall on his 14.2-acre lot, and sought permission from the Water Management District to dredge and fill wetlands within that lot that were part of a designated riparian habitat protection zone. While the Water Management District apparently could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by Koontz, could allow for the development to proceed. Koontz, however, refused these proposals, and the government ultimately denied the development request outright. At the appellate level, Koontz prevailed on the theory that the Nollan/Dolan test (1) applies to exactions beyond those that require public occupation of private lands, and (2) is applicable at the point in time when an exaction is merely proposed.
The Florida Supreme Court reversed. On the first issue, the court sided with a considerable majority of the many state and lower federal courts that have addressed the question of whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands by answering this question in the negative. Still, select courts have answered the question in the affirmative, even in the face of arguably contrary dictum in the U.S. Supreme Court’s unanimous opinion in Lingle v. Chevron in 2005.
The second issue seemingly has not been addressed in the lower courts at near the same depth as the first. Nearly all of the many lower court applications of the Nollan/Dolan test have addressed final permit approvals, leaving the Florida Supreme Court with few cases on which to draw. Indeed, prior to Koontz, it appears that in only three instances—one federal district court opinion (William J. Jones Insurance Trust v. City of Fort Smith, 731 F. Supp. 912 (W.D. Ark. 1990)), one federal circuit court opinion (Goss v. City of Little Rock, 151 F.3d 861 (8th Cir. 1998)), and in a decade-old dissent from a denial of certiorari authored by Justice Scalia and joined by Justices Kennedy and Thomas (Lambert v. City & Cnty. of San Francisco, 120 S. Ct. 1549 (2000))—did members of the judiciary assert that a proposed exaction could, in and of itself, implicate the Takings Clause. [There arguably may be select other cases, such as City of Carrollton v. RIHR, Inc. 308 S.W.3d 444 (Tex. App. Dallas 2010), that fit the bill, as well.] Across these cases, the opinions provide thin and contradictory guidance on the complex questions surrounding whether such a novel claim presents a legitimate takings issue.
The Florida Supreme Court ultimately decided in Koontz that proposed exactions are not subject to the Nollan/Dolan test. I found it somewhat surprising that the Court did little to confront the rationale set out in any of the few preceding cases on the topic, even though, of course, none were binding upon it. And it was even more surprising that the Court dedicated only two pages of its opinion to this imposed-versus-proposed issue, and provided little justification for its conclusion. The Court said only that applying the Nollan/Dolan test to proposed exactions would prompt local governments to issue more outright denials “rather than risk the crushing costs of litigation.”
One might contend that applying the same tests to all conceivable exactions, whether they are proposed prior to an outright permit denial or imposed in a final development approval, makes sense. Otherwise, this argument might suggest, property owners would be beholden to the government’s extortionate exaction propositions, lest they side with the empty alternative of an absolute development prohibition. There is an instinctive appeal to the argument (which presumably must be grounded in the quite murky jurisprudence surrounding the “unconstitutional conditions” doctrine) that the denial of an application based on refusal to comply with an exaction demanded by the government is indistinct from a permit conditioned on that exaction. In a brief post on The Volokh Conspiracy this afternoon, Ilya Somin (George Mason) offers support for this type of approach.
However, there are at least three reasons to suggest that the above approach is inapt. First, where a proposed exaction is refused or withdrawn, it seems that no property interest has been "taken" from the applicant that can be protected by the Takings Clause. Second, judicial speculation on hypothetical exactions and their hypothetical economic impacts poses a wholly unmanageable system that could require courts to review countless cases that do not present actual controversies (and, in the process, further complicate the line separating due process and takings review). Third, and arguably most importantly as a matter of legal policy, burdening governmental entities with possible takings liability for statements made during pre-decisional negotiation sessions will place a chilling effect on regulator-landowner coordination.
I expound on the above ideas in this pre-Florida-Supreme-Court article. In addition, Mark Fenster (Florida) authored a very interesting post-Florida-Supreme-Court essay on the topic. Please stay tuned to the Environmental Law Professors Blog for updates on this latest takings case headed to the U.S. Supreme Court.
Catholic Soup Kitchen Files RLUIPA Challenge To Denial of Permit To Operate
The Day reports that on Friday, the Catholic Diocese of Norwich, Connecticut filed suit in federal district court challenging the decision by the Norwich city planning commission not to extend a temporary permit allowing the St. Vincent de Paul Place soup kitchen to continue to operate in a former Catholic school building. Neighbors had complained of trespassing, foul language and litter by soup kitchen patrons. The Diocese invokes the Religious Land Use and Institutionalized Persons Act, saying that it has been treated differently than other similar facilities, both religious and non-religious.
For the first, see Washington v. Alaiimo. For the second, see State v. Law. For the latest, see this quote from champion boxer Juan Manuel Marquez, as reported in BoxingScene.com (though I admit that this likely won’t get to court):
[Trainer Freddie] Roach told me if I would would come out clean in the anti-doping tests, he would kiss my ass. The Nevada Commission has announced that both Pacquiao and I were negative for doping. That means Roach has to kiss my ass, and then some. He openly said that I had doped, and now he has to pay the consequences.Rob Green (Abnormal Use) explains why a court would not indeed order Roach to kiss Marquez’s ass.
