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Stuart Miller

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Regulatory Takings   

 

A regulatory taking occurs when the government restricts the use of private property to such an extent that it is deemed to have “taken” the property, even though it is still in the hands of the owner. When a regulatory taking occurs, the government must either suspend its restriction or buy the property at fair market value, and it must also pay compensation for the past limitation on its use.

 

Stuart is a nationally-known expert in the field of regulatory takings, and has successfully represented both property owners and government entities in takings cases. His most celebrated case is Monks v. City of Rancho Palos Verdes, 167 Cal.App.4th 263 (2008), in which the California Court of Appeal held that an open-ended “moratorium” on development of residential land based on an unsubstantiated fear of landsliding constituted a regulatory taking. That decision, the only final ruling to find a permanent regulatory taking in the history of California, resulted in a payment of $4,250,000 in damages for past use of the property, plus an annulment of the restriction, thereby allowing the owners to develop magnificent ocean-view land worth over $20,000,000.

 

Stuart has also successfully defended regulatory taking cases on behalf of government agencies in many cases, including:

 

St. Aubin v. Flacke
68 N.Y.2d 66, 505 N.Y.S.2d 859, 496 N.E.2d 879 (1986).

 

Kennedy v. United States
643 F.Supp. 1072 (E.D.N.Y. 1986).

 

Hawes v. New York
161 A.D.2d 745, 556 N.Y.S.2d 101 (1990).

 

Smith v. Williams
166 A.D.2d 536, 560 N.Y.S.2d 816 (1990).

 

Town of Riverhead v. Dept. of Environmental Conservation
193 A.D.2d 667, 598 N.Y.S.2d 14 (1993).

 

Stuart's law review article, “Triple Ways to Take: The Evolution and Meaning of the Supreme Court’s Three Regulatory Taking Standards,”[1] has been widely cited by other commentators, and was praised in the journal Environmental Law for its “perceptive and important scholarship.”[2]

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The Supreme Court of Florida quoted it in an important decision,[3] and the State of Kansas commended his “excellent discussion” of the subject.[4]  He has also written articles on regulatory takings for California’s leading legal newspapers, the Los Angeles Daily Journal and San Francisco Daily Journal, including:

 

  • “Recent Cases Involving Regulatory Takings”

  • “Supreme Court May Clarify Controversial Takings Issue” 

  • “Supreme Court to Decide Critical Takings Issue” 

  • “Supreme Court Clarifies ‘Regrettably Imprecise’ Takings Doctrine” 

 

[1] 71 Temple Law Review 243 (1998).
[2] Danaya C. Wright, “A New Time for Denominators: Toward a Dynamic Theory of Property in the Regulatory Takings Relevant Parcel        Analysis,” 34 Environmental Law 175, 181 (2004).
[3] Keshbro, Inc. v. City of Miami, 801 So.2d 864, 870 fn.10 (2001).
[4] Kansas Local Government Water-Quality Planning Technical Resources Manual p. D-20 (1999).