public rights, regulatory, palazzolo, coastal
The question of whether the state has the right to “take” (in the form of regulation) land in its coastal zones is a much more complex question that the courts, to date, have not been able to manage adequately. The problems faced along the coasts are difficult problems, and will likely not be settled by asking judges to determine the “rightness” of claims made through an adversarial process that tends to oversimplify situations in the process of constructing winnable legal arguments. Nor can we rely simply on administrative agencies or legislatures to protect the rights of individuals or protect them adequately from natural disasters. Clearly, the citizenry needs to be more active in these matters, and the administrative process needs to be both transparent and simplified. Quite frankly, it makes as much sense to have these cases drag out over decades as it does to have them framed in a way that oversimplifies the complex political challenges facing the governments attempting to regulate their coasts. The courts should stand ready to engage in oversight of these processes; but, if we can learn anything from Palazzolo, it may be that litigating with an overly simple goal of increasing private property rights could, in fact, only make matters more difficult because it will force the courts to continue muddling the waters of the takings clause. From a social science perspective, the longer the resolution, the more complicated and difficult the situation becomes. Prolonging the process into decades, then, is the last thing that should happen.
Laura J. Hatcher, Ph.D.,
The Odyssey of Palazzolo: Public Rights Litigation and Coastal Change,
36 Fordham Urb. L.J. 849
Available at: https://ir.lawnet.fordham.edu/ulj/vol36/iss4/5