All posts tagged 'Inc.'

Rising Sea Levels and Prohibited "Takings" - A Different Sort of Climate Change Litigation

November 18, 2014 21:39
by J. Wylie Donald
  A little noted anniversary passed this past week.  The odd 2009 storm, Nor’Ida (the progeny of a nor’easter and a hurricane), swept along the east coast pounding some areas with record storm surge five years ago in the second week of November.  Who is keeping Nor’Ida’s memory alive?  Among others, homeowners in Nags Head, North Carolina have especially good memories, as shown by their long-running litigation, Sansotta v. Town of Nag's Head.  They have been in state court, federal district court, the Fourth Circuit and on November 6 (one week short of the fifth anniversary of Nor’Ida) won an important battle in the Eastern District of North Carolina.  (The decision is attached below.)  Whether that is the end of the saga is anybody’s guess.  Or at least must be measured by how long the taxpayers want to keep paying their lawyers.   We blogged the prelude to the most recent decision a year ago last August.  Homeowners (perhaps beachfront cottage-owners is a better term) had challenged the Town of Nags Head, which had labeled certain beachfront homes nuisances because they obstructed emergency response and were in disrepair from Nor’Ida.  The plaintiffs asserted various constitutional claims (equal protection, due process, prohibited takings).  The Fourth Circuit rejected all the claims except the takings claim, which should have been allowed to proceed.   We pick up now from the Fourth Circuit’s ruling   Notwithstanding the loss of two theories of recovery, the case was hardly simple when it showed up before Chief Judge James Dever III on dueling motions for summary judgment. Plaintiffs asserted 14 causes of action, the Town responded with four counterclaims.  A few pieces of background are important. Nor'Ida (referred to by the Court as the November Storm) was anticipated and the homeowners took steps to preserve their properties with various earthmoving activities, but the Town ordered the work to stop when the access road washed out. Following the storm and accompanying damage the Town declared the properties nuisances, pursuant to a town ordinance.  The ordinance at issue provided as follows:    [t]he existence of any of the following conditions associated with storm-damaged or erosion-damaged structures or their resultant debris shall constitute a public nuisance. (a) ... (b) Damaged structure or debris from damaged structures where it can reasonably be determined that there is a likelihood of personal or property injury; (c) Any structure, regardless of condition, or any debris from damaged structure which is located in whole or in part in a public trust area or public land.   The Town invoked both provisions (b) and (c).   The public trust provision ((c)) was the most straightforward to enforce for the Town. Either the cottages were located in the public trust, or they were not. Further, if a property was in the public trust, it could not be issued a building permit for repair. Unfortunately for the Town, much of Judge Dever's work had already been accomplished when the North Carolina Court of Appeals ruled that public trust rights could only be enforced by the Attorney General. See Town of Nags Head v. Cherry, Inc., 723 S.E.2d 156, 160-61 (2012). Accordingly, the Town's nuisance ordinance relying on the doctrine was invalid.  Other claims of violations of due process, of negligent enforcement, for declaratory judgment, etc. were easily addressed as well (and won’t be discussed here).   That left the causes of action relying on the provision of the ordinance that forbade decrepit properties. Here, however, the Town had materially interfered with the homeowners' ability to repair their properties. And that, held the Court, constituted a prohibited taking, even if it were only a temporary prohibition.  Thus, even if the homes became nuisances during the storm, they did not have to continue that way because they would have been repaired in the normal course. In that case, “No rational jury could find that such use [repairing a beachfront cottage for use] constitutes a nuisance under the background principles of North Carolina common law.”  Sansotta at 26. Nevertheless, the Court also found merit in the Town's opposition to the plaintiffs' motion and denied both sides summary judgment on the temporary regulatory takings topic.   Takings scholars will undoubtedly find much to discuss in the Court's extensive discussion. We take a different focus and consider the decision in the context of rising sea level litigation, a different sort of climate change litigation from the liability suits we have frequently discussed. First, only those with their head in the sand refuse to acknowledge the rise of the oceans, and the increased acceleration of that rise. Government inevitably is going to have to take steps. The question will be:  when?  Must a municipality declare a nuisance only when the nuisance is overt and uncontroverted?  Or can the nuisance be anticipated and steps taken before the storm surge has wiped a slab slick, and distributed debris throughout the municipality. The Court suggests that proactive steps are possible, but they must be lawful:  “the Owners rightly expected that the Town would not attempt to accelerate that process [where erosion made it such that cottages could not legally or practically be repaired] through its unauthorized assertion of the public trust doctrine.” Sansotta at 27.  But the Court offers no insight on what accelerative steps might be approved.  That will be another topic for scholars.   Second, condemnation of beachfront cottages as nuisances may be extremely detrimental to the owners of the cottages, but it is a delightful windfall to those one lot inland.  Those lucky homeowners now own beachfront property (or at least unobstructed beach view property).  The Court acknowledged as much:  “the result would not have been a mere adjustment of the benefits and burdens of economic life.  Rather, the result would have been an outright transfer of wealth from the Owners to the beachgoing public and to those who own the would-be oceanfront cottages behind the Owners’ Cottages.” Sansotta at 28.  It is another interesting scholarly question as to whether that windfall can or should be distributed back in some way to the ousted beachfront owner, thus mitigating the total loss otherwise felt by the homeowner.   We have foisted much upon scholars here, but for planning purposes there may be no other place to find answers besides academe.  We haven’t been here before and if there’s a hope of avoiding swamping the littoral courts with lawsuits over windfalls and takings, then that hope must hinge on some well thought-out plan.  Stay tuned.  Sansotta's time for appeal has not yet run and, in any event, future hurricanes coming ashore at higher mean sea levels are inevitable, and so will be future disputes.

Climate Change Litigation | Rising Sea Levels | Weather

Fourth Circuit Rejects Manipulation of Judicial Process As Ocean Manhandles Homes

August 19, 2013 19:56
by J. Wylie Donald
Can a community condemn shorefront cottages where the beach has eroded at 8 feet per year and the cottages interfere with emergency responders traveling along the beach?  Based on the Fourth Circuit's decision at the end of last month in Sansotta v Town of Nags Head we just don't know. What we do know is that a municipality cannot play both ends of the law against the middle to address the problem. Let us explain.  Nags Head is a shore community of about 2500 souls (soaring to 40,000 in the summer) on North Carolina's Outer Banks. Municipal ordinances provide that a building suffering storm damage or erosion damage may be a public nuisance where it is in danger of collapsing, where there is a likelihood of personal or property injury, or where the structure is on public trust or public land.  Nags Head Ordinance 16-31(6) (a), (b), (c).  A 2009 storm washed away much of the sand around six cottages leaving their septic tanks exposed. The Town declared the cottages nuisances under Ordinance 16-31(6)(b) and (c) and required their abatement. Demolition was the only way to satisfy the ordinance but the homeowners did not comply and the Town assessed fines accruing at $100 per day.  The homeowners sued. (Twenty other cottages were also declared nuisances resulting in at least two other suits. See Town of Nags Head v. Toloczko, 863 F. Supp. 2d 516 (E.D.N.C. 2012); Town of Nags Head v Cherry, Inc., 723 S.E.2d 156 (N.C. Ct. App. 2012).) The suit was originally filed in state court with claims sounding in both state and federal law. The Town removed to federal court.  Both parties moved for partial summary judgment.  The trial court dismissed and the homeowners appealed. The Fourth Circuit affirmed the trial court's dismissal of the equal protection and procedural due process claims; however, the court of appeals reversed the trial court's dismissal of the takings claim. Fourteenth Amendment Procedural Due Process.  Due process requires that before one is deprived of life, liberty or property, a constitutionally fair process must be imposed. Here, while the homeowners asserted constitutionally protected interests in the money to pay the fines and the cottages themselves, the Town never deprived them of those interests. First, the fines were never paid. Second, the Town's "regulatory actions do not constitute a deprivation of property because they represent limitations on the use of property that 'inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership.'" Sansotta at 14.  "By acting to abate what it believed was a nuisance, the Town simply kept the Owners from using their property in a way that was prohibited by law." Id. at 15.  Fourteenth Amendment Equal Protection. The homeowners asserted that they were treated differently than the 14 other cottages that were also located in the public trust area. This was true but it did not matter. The Town had a valid reason for treating the cottages differently:  they were closer to the ocean and obstructed the passage of emergency vehicles to a greater extent.  "Notwithstanding the Owners' contentions about all parts of the beach being valuable, different parts of the beach may present different issues with regard to public safety.  Hence, the difference in the locations of the cottages on the beach is a legitimate basis for treating them differently."  Id. at 20.  Fifth Amendment Takings. The homeowners asserted that their property was taken without just compensation. However, the homeowners had not completed the process of pursuing their compensation claim under state law. This was fatal to a federal claim, which required that a "plaintiff must first have sought compensation 'through the procedures the State has provided for doing so.'" Id. at 21.  In state court, however, the homeowners could assert a taking, even though they had not completed the compensation process.  "[U]nder San Remo Hotel[, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323, 346 (2005)], a plaintiff may bring a takings claim in state court without having already been denied compensation by the state, if he also brings his state-law claim for just compensation." Id. at 23.  And here was the rub:  the Town had removed the case from state court, where the homeowners takings claim was ripe. But in so doing, the Town asserted the claim became unripe in federal court. Id. at 24. The Court of Appeals was not willing to "judicially condone[] manipulation of litigation." Id. at 25.  The requirement for a federal court to wait until the state court has ruled on a just compensation claim, was a "prudential" not a "jurisdictional" requirement.  State courts have more experience in land use matters than federal courts, but that "does not mean that federal courts are incapable of handling them."  Id. at 25.  "A defendant implicitly agrees with this conclusion when he removes a case involving such a state or municipal law to federal court."  Id. at 25-26. Thus, the court refused to apply the state court litigation requirement and reversed the trial court's dismissal of the takings claim. "Based on our conclusion that a state and its political subdivisions waive the state-litigation requirement by removing a case to federal court, the district court erred in dismissing the Owners' takings claim as unripe." Id. at 35. We find three things of moment in this case and its decision: First, Nags Head is just one small community on the Atlantic littoral beset by rising sea levels. Yet it has spawned at least three cases that have been litigated to the appellate level.  We can expect many more. Second, the issues in the rising sea level cases are going to get right down to fundamentals. Constitutional rights will be invoked. This of course suggests the Supreme Court will get involved. We note that it already has.  See Stop the Beach Renourishment, Inc. v. Florida, 560 U.S. 2606 (2010). Third, one of the homeowners' takings claim was based on "redefining private property as public land." Id. at 21 n.16. Observe that the states own the land below mean high water (or mean low water in some cases). As the oceans rise, the states' claims to more and more of the current landowners' shorefront will increase. Is it the case, then, that that is a taking?  If it is, then states better start setting aside some substantial funds to pay just compensation that they cannot avoid.  The front cover of this month's National Geographic premiers Rising Seas, How They Are Changing Our Coast Lines.  In North Carolina, they are living (and litigating) that.

Climate Change Effects | Climate Change Litigation | Regulation | Rising Sea Levels

16 States Back EPA in Suit Challenging Endangerment Finding

January 26, 2010 07:02
It has only been a month since an organization called the Coalition for Responsible Regulation, Inc. filed suit in the U.S. Court of Appeals for the District of Columbia Circuit challenging the U.S. Environmental Protection Agency’s endangerment finding and, already, 16 states have lined up with the EPA, seeking to intervene in support of the challenged regulation.   The challenged regulation, entitled “Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act” (the “Final Rule”), was published in the Federal Register on December 15, 2009 and was issued by the EPA in response to the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA, 549 U.S. 497 (2007).  The rules regulate emissions of greenhouse gases from new motor vehicles and engines.    In the Final Rule, the Administrator finds that “the body of scientific evidence compellingly supports” her conclusion that “greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare.” She defines the resulting air pollution referred to in Section 202(a) of the Clean Air Act to be “the mix of six long-lived and directly-emitted greenhouse gases: carbon dioxide (CO2), methane (CH4), nitrous oxide (N2O)), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfer hexafluoride (SF6).”  The Administrator concluded that the mix of greenhouse gases from transportation sources contribute to the climate change problem, which is reasonably anticipated to endanger public health and welfare.   The Final Rule triggers the EPA’s statutory duty to promulgate regulations establishing emissions standards for motor vehicles covered by Section 202(a)of the Clean Air Act.   Noting that the Court’s action on the petition for review will affect the public health and welfare of their residents and will also affect a host of global warming impacts that the proposed intervenors are suffering, the following states seek to intervene in support of the EPA: Commonwealth of Massachusetts and the States of Arizona, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington.  The City of New York also filed in support of the EPA.   Notably absent from the Motion for Leave to Intervene as Respondents is the State of New Jersey, from which EPA Administrator Lisa Jackson came as the prior Commissioner of the New Jersey Department of Environmental Protection. New Jersey, which just last week inaugurated new Republican Governor Chris Christie, who unseated Democrat Jon Corzine, formerly supported climate change litigation and was among the states challenging the EPA in Massachusetts v. EPA.  The following states were not in the Massachusetts v. EPA case but joined the fight now in support of the regulations: Arizona, Delaware, Iowa, Maryland and New Hampshire.

Carbon Dioxide | Climate Change | Legislation | Regulation | Greenhouse Gases

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