The Law of Taking Elsewhere and, One Suspects, in Maine

The debate as to the meaning of the Taking Clause in the Fifth Amendment of the United States Constitution seems unending. This short, almost cryptic constitutional provision, “nor shall private property be taken for public use, without just compensation,” has over the years given rise to both court challenges and philosophic debate aimed at parsing out the meaning and parameters of this language. As the need for regulatory controls (imposed by every level of government) has increased, the number of challenges and the stridency of the debate has also increased. Moreover, these challenges have increasingly found their way to the United States Supreme Court. Originally, this clause was only applied to a physical taking by government, but this obvious and literal meaning of the clause was at an early date deemed to be a too narrow view of the Taking Clause and is today regarded as revisionist in its approach. Over one hundred years ago the United States Supreme Court recognized that police power regulations may also, if too extreme, give rise to a Fifth Amendment taking, a constructive taking, of the regulated property. This Article focuses on regulatory takings—what we know, what we don\u27t know, and what seems likely (in the nation and in Maine) in this area of taking law. It will draw most heavily on recent United States Supreme Court case law, but other federal and state cases, and both federal and state legislation (some proposed, some enacted) aimed at clarifying the Fifth Amendment\u27s mandate will also be examined. The purpose of the Article is to suggest that the Taking Clause is alive and well, that its meaning is not as obscure as some would suggest. In short, a more accurate understanding and acceptance of current taking law by those who would protect us is more likely (than is the rhetoric of the extremes) to preserve regulatory credibility in judicial forums and continued public acceptance of reasonable regulations. Such understanding and acceptance will not end, but is more likely to blunt, the litigation and legislative strategies of the absolutists

An Argument to the State of Maine, the Town of Wells, and Other Maine Towns Similarly Situated: Buy the Foreshore - Now

This paper has its roots in the finality of what have come to be called the Moody Beach decisions. In the last of these two cases, Maine\u27s Supreme Judicial Court, sitting as the Law Court, held that the public\u27s right to use the intertidal zone was limited to those uses and activities spelled out in the Colonial Ordinance of 16411647: “We agree with the Superior Court\u27s declaration of the state of the legal title to Moody Beach. Long and firmly established rules of property law dictate that the plaintiff oceanfront owners at Moody Beach hold title in fee to the intertidal land subject to an easement . . . permitting public use only for fishing, fowling, and navigation . . . .” This definition of public use rights in Maine\u27s intertidal zone is unfortunately narrow. The definition is derived from a line of Massachusetts cases that the Maine court felt bound to follow. Maine, they reasoned, was formed in 1820 out of territory that was formerly a part of Massachusetts. Thus, the law and legal precedents of the latter arising before 1820, including the Colonial Ordinance, are fully received into Maine law. Though no Maine court had been called upon to precisely delineate private property and public use rights in the intertidal zone prior to 1989, the Moody Beach decisions made clear that the restrictive definition of public use rights in the intertidal zone is a reality that cannot be altered by wishing it away, by adopting expansive police power regulations, or by fashioning arguments predicated on the public trust doctrine. These unpleasant facts must be faced. The definition gives a relatively small number of littoral landowners along the coast of Maine a property rights windfall. They are unlikely to give it back. If this situation is to be turned around; if Maine\u27s foreshore areas are to be prevented from becoming permanent enclaves of the few; if public use rights in the foreshore, particularly the use of sand beach areas, are to be enlarged, allowing succeeding generations of Maine citizens to use these areas in ways that cannot even be fully anticipated today; if these succeeding generations are to have a sense (as past generations have had) that Maine\u27s foreshore, its beaches, and tidal pools belong to all of the people; then state government acting alone, or in conjunction with local governments, must develop and adopt new strategies and programs that increase public property rights in these foreshore areas. In short, public entities must purchase shorefront parcels for public use. It seems clear that the taxing, bonding, spending, and eminent domain powers of state and local government are sufficient to accomplish these ends. These broad powers should be used imaginatively, and in combination with one another, in ways designed to provide the public with a full range of rights in a foreshore broadly defined to include the intertidal zone and the immediately adjacent upland. It will, no doubt, take time and money to put these strategies and programs in place and bring them to fruition, but in the end all Maine citizens will once again have ready access to, and control of, the foreshore for any and all activities and uses they might wish to undertake. The real question is, do we as citizens, and do our governmental leaders, have the will to act? Are we prepared to obtain for all Maine citizens, present and future, the foreshore property interests we seek? That, of course, remains to be seen. This paper outlines an approach that might be taken to accomplish this goal

Kelo v. City of New London-Wrongly Decided and a Missed Opportunity for Principled Line Drawing with Respect to Eminent Domain Takings

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper, to modify, if not overrule, the holding in Kelo. Whether, and/or which of these state proposals will be enacted—whether federal legislation will come to pass is, of course, problematic at this point. But these conjectures and possible state or federal legislative responses to Kelo are not the purpose of this Article. What seems more useful is a delineation of the Kelo case itself, and in particular, the root cases Kelo relied upon; Berman v. Parker, Hawaii Housing Authority v. Midkiff, and to a somewhat lesser extent, Ruckelshaus v. Monsanto. Part I of this Article will argue that Kelo was wrongly decided in at least three important respects: the facts in Kelo are fundamentally different from the facts in the cases purportedly relied upon by the Kelo majority; the Kelo Court misunderstands or misstates the doctrine of “deference”; and finally, the sequencing of reasoning undertaken by the Kelo Court is both at odds with the cases relied upon, and is little more than an “ends justifies means” approach that puts a wide range of constitutionally protected rights at risk (not just the property rights of the Kelo homeowners)—a dangerous precedent. Part II of the Article would recognize, and suggests ending, an unfortunate dichotomy between the Supreme Court’s handling of “regulatory taking” cases, and those “taking” cases that arise in eminent domain settings such as Kelo, Berman, and Midkiff. The argument is made that this dichotomy ought at long last to be bridged—it is inexplicable, it cannot be justified, and it produces unfair (dangerous even) results. The opportunity to harmonize these two strands of our takings jurisprudence was missed in Kelo. But there will be other cases, and hopefully a Supreme Court better prepared to tackle this essential task

Justice Edward Godfrey and the Public Purpose Decision

At the end of 1994 Dean Edward S. Godfrey III stepped down from his teaching position as Professor Emeritus of the University of Maine School of Law. In honor of his service to Maine’s only law school, to the Maine Supreme Judicial Court, to the Maine Bar, and to the people of the State of Maine, the Board and Staff dedicate Volume 47 of the Maine Law Review to Dean Edward Godfrey. Reviews by Maine Law School faculty members of Dean Godfrey’s Law Court decisions in several areas of the law follow

The Long-Standing Requirement That Delegations of Land Use Control Power Contain Meaningful Standards to Restrain and Guide Decision-Makers Should Not Be Weakened

Some forty years ago, a leading land use scholar noted that “it has always been recognized that it is an essential part of the judicial function to watch over the parochial and exclusionist attitudes and policies of local governments, and to see to it that these do not run counter to national policy and the general welfare.” Maine courts by and large have discharged this judicial function by consistently striking down unauthorized and overreaching local governmental land use decisions. Several recent cases, however, cast doubt on the Law Court\u27s continuing commitment to guard against the parochial instincts of local land use decision-makers. There is speculation as to whether the Waterville Hotel line of cases retains the vitality it once had. It is the purpose of this Article to show the utility of, and the underlying legal theories that support, these twenty-five years of case law. The Authors will argue that both public and private interests, as well as fundamental principles of “ordered government,” are best served by a strong and substantive reaffirmation of the principles and lessons of Waterville Hotel, Cope, and Wakelin. In the area of land use, judicial watchfulness over the parochial instincts of local governments is needed today no less than it was more than twenty-five years ago when the warnings were first sounded

The Argument For: Retaining Income as One of Two Factors in Maine’s School Aid Funding Formula

Brennan and Delogu’s commentary asserts the importance of retaining local household income as a factor in determining school funding formulas in Maine. They note that inclusion of income in school aid equalization formulas has been embraced in over a dozen other states