Real Property, Trust and Estate Law Journal (53:01)

Vol. 53 No. 1  

Real Estate

A Fixed Rule for a Changing World: The Legacy of Lucas v. South Carolina Coastal Counsil (53:01)

In light of the 25th anniversary of the Supreme Court’s Lucas decision, this Article reexamines the actual relevance of the opinion by weighing the framing, reach, and aftermath of Justice Scalia’s majority opinion. This Article argues that Justice Scalia’s opinion consciously framed the regulatory takings doctrine in a more favorable way for private property owners, and by doing so, helped pave the way for subsequent denial that environmental and climate concerns are a valid basis for any government action. Justice Scalia attempted to create a regulatory environment that protects private real estate investments instead of protecting the public environment as intended by democratically enacted regulations, but courts have applied Lucas in a more limited manner than Justice Scalia probably intended.

Real Estate

Background Principles: Still Searching for The Holy Grail (53:01)

This Article explores Justice Scalia’s interpretation of the limits of takings jurisprudence by examining the critical background principles of state police powers, common law nuisance, and property ownership rights. It argues that these background principles ought to control the analysis of modern takings cases, and it explores how loose interpretation of these principles creates a dangerous invitation to judicial lawmaking that poses a threat to the rule of law. This Article also examines the state and federal courts’ use of these background principles, statutes and constitutions, and principles of property law that are consistent with Justice Scalia’s interpretation on limits in takings jurisprudence to protect private property rights.

In this issue

Real Property Trust and Estate

Supreme Court Roadblocks to Responsive Coastal Management in The Wake of Lucas (53:01)

Lucas v. South Carolina Coastal Council was the first time that the United States Supreme Court considered the validity of the work product of a state government expressly confronting the realities of sea-level rise caused by climate change. Takings progeny following Lucas have limited the ability of state and local governments to follow South Carolina’s lead in drafting sensible and effective responses to sealevel rise and climate change. Recent beachfront litigation in STBR, Palazzolo, Murr, Dolan, Koontz, Arkansas Game, and Tahoe-Sierra illustrate the tension between the Lucas Court’s reliance on the Takings Clause and the conscientious efforts of state and local governments to protect public lands and combat the effects of climate change.

Real Estate

Who Owned the Lucas Lots? What “No Property” Looks Like on The Beach (53:01)

The Lucas majority opinion raises difficult doctrinal issues including (1) whether courts ought to use a special takings test when a regulation eliminates all economically viable use of a piece property, and (2) the scope of the potential government defense that “no property” has been taken. This Article further explores these issues by examining shoreline change, harm/benefit distinction, and the public nuisance doctrine. Additionally, this Article argues that the specific facts of Lucas suggest that Mr. Lucas may not have owned the property in question at the time he filed the case.

Real Estate

The Regulation of Coastal Properties in An Era of King Tides (53:01)

This Article explores the implications of this era of high tides and storms along with current regulatory schemes in South Carolina’s Beachfront Management Act (BMA). Additionally, this Article poses solutions to the new needs and issues unaddressed by current regulation. South Carolina adopted the BMA to protect beachfront property and prevent erosion. The BMA specifically established jurisdictional lines that trigger regulatory restrictions, prohibitions, and limitations that prevent private interest from negatively impacting the public beachfront property. However, due to constitutional challenges and budget provisos, the BMA allows various exemptions that affect the consistent application of the Act’s intended restrictions, prohibitions, and limitations. Currently, property owners that do not qualify for any of the exemptions have few “self-help” measures to employ for the protection of beachfront property, including sandbags, sand scraping, and beach nourishment. However, the correct application of each of these measures poses challenges in practicality and funding for the different types of property owners. To address these issues, the South Carolina legislature, Department of Health and Environmental Control, environmental advocacy groups, coastal communities, and those with development interests should join forces and encourage the investigation and development of additional protective measures to preserve property and protect public resources.

Real Estate

RLUIPA and Federal Court Review of Local Zoning Decisions Involving Religious Entities (53:01)

The Religious Land Use and Institutionalized Persons Act (RLUIPA) was originally enacted to minimize the burdens, delays, and sometimes thinly-veiled animus directed at religious groups in the zoning context. Some have argued that RLUIPA is in tension with the Establishment Clause. However, this Article argues that RLUIPA creates no tension but rather is in harmony with both the plain language and long-standing interpretation of the Establishment Clause. Additionally, this Article views the Religion Clauses and RLUIPA as necessary prophylactics against animus directed at disfavored religious groups in land use disputes.

Real Estate

United States–Mexico Border Wall: The Past, The Present and What May Come (53:01)

The idea of a border wall not only has captured the attention, fascination, and frequent ire of the American public, it has also posed both practical and legal issues including border barriers, procedure to condemn private property, compensation for border barrier condemnations, environmental and safety concerns, and questions of public access. To address these issues, this Article first examines the history of the existing border wall by discussing the original border barriers and the Illegal Immigration Reform and Immigration Responsibility Act, the Secure Fence Act of 2006, and the REAL ID Act. This Article also reviews the legal procedures accompanying border wall takings and analyzes the future impacts on President Trump’s proposed border wall expansion.