Published: Tue, 28 Mar 2017 00:00:00 -0400
Last Build Date: Tue, 28 Mar 2017 21:25:29 -0400
Mon, 20 Mar 2017 08:31:00 -0400A dispute between a Wisconsin family and their local government could set an important precedent for how the federal government must compensate states when taking land. The case, Murr v. Wisconsin, goes before the U.S. Supreme Court on Monday for oral arguments. The Murr family owns two adjacent plots of land along the banks of the St. Croix River in western Wisconsin, and wants to sell one of the parcels (with an estimated value of $400,000, the family claims) to pay for maintenance on the recreational cabin that sits on the other parcel. The county government, acting under the terms of a 1975 state law, prohibited the family from selling the second parcel and declared the two parcels are effectively a single parcel—a regulatory ruling that the Murr family claims has reduced the value of their land by as much as 90 percent. (For more on the details and background of the case, check out my previous reporting here.) The whole thing seems very narrow and technical—it's almost so provincial that it makes you wonder why the Supreme Court is involved at all—but the key detail is not the fight over whether the Murr's own one 2.5 acre parcel of land or two 1.25 acre parcels of land. No, the real question here is whether the state government has to compensate them for the loss of value. Usually, this is fairly clear cut. The U.S. Constitution says governments must compensate property owners when land is taken for public purposes. In this case, though, the land wasn't necessarily taken, but rather the use of the land was significantly restricted by state regulations regarding where structures can be built relative to waterways, and by the separate decision to merge the two parcels into one without the Murr's consent. The case before the Supreme Court will deal mostly with the question of whether the simple fact of having two adjacent parcels owned by the same person can allow the government to reduce the value of those parcels without having to pay compensation—something the government would not be able to do if the two parcels had different owners. "However you come down on the question of whether there is a taking in [the Murr's] case or not, the answer shouldn't depend on the fact that the owners of one lot also happen to own the lot next door," said Ilya Somin, a professor of law at George Mason University, during a forum on the Murr case hosted Friday by the Cato Institute, a libertarian think tank. Somin has called the case "by far the most important property rights case to come before the Supreme Court this term, and probably the most important in at least two or three years, if not longer." It's the question of compensation that has attracted the interest of several states that are not directly involved in the dispute. Eight western states, led by Nevada, filed amicus briefs with the Supreme Court in support of the Murr's claim. If the state can combine the Murr's parcels of land and not have to compensate the family for the lost value, those states argue, then similar reasoning could leave states vulnerable to large-scale uncompensated encroachment by the federal government. "If regulators do not have to pay compensation to affected property owners in cases where the latter happen to possess contiguous lots, they will often have little incentive to fully consider the costs and benefits of proposed regulations, and prioritize those with the greatest likely beneficial impact," they argue. "Aggregating contiguous parcels under common ownership into a single super-parcel will undermine traditional notions of property rights, have deleterious economic consequences, and encourage the undisciplined regulation of individuals' and states' property." The states are not concerned with whether Wisconsin should have to compensate the Murr family for the reduced value of their property, but rather with the way in which the government executed the merger of the two parcels. If governments are allowed to do that—to decide that two adjacent parcels of land with the same owner can be treated as a single parcel under the law—th[...]
Wed, 01 Mar 2017 14:14:00 -0500After a decade of legal wrangling over the fate of their half-century old cabin, the Murr family will take their property rights dispute from the backwoods of western Wisconsin to the marble halls of the U.S. Supreme Court. And what began as a regulatory battle over less than three acres of land has morphed into a legal case attracting interest from eight other states. The Supreme Court next month will hear oral arguments for Murr V. Wisconsin, a case that originated all the way back in 2004, when Donna Murr and her siblings tried to sell a parcel of land along the St. Croix River that the family has owned since the 1960s. They couldn't do that, they were told by St. Croix County and the state Department of Natural Resources, because the parcel was not large enough to comply with regulations regarding the distance between waterways and buildings. There's nothing built on the 1.25 acre parcel the Murrs were trying to sell, but the family own a cabin that sits on an adjacent 1.25 acre piece of land. They couldn't sell the vacant parcel without tearing down the cabin on the other parcel, they were told. Even though the two pieces of land are separate—Donna Murr says the family has paid taxes on them, separately, since buying the neighboring, vacant parcel in the 1960s as an investment—the county and state say they can combine the parcels for regulatory purposes because they have a common owner, thanks to a state law passed in 1975. "We aren't going to be allowed to sell the second parcel, unless we tore down the cabin next door. We were stunned," Murr said Tuesday on a conference call with reporters. "We couldn't believe that the government would happily take our property tax dollars for fifty years, and then deny us the basic property rights here." Since they can't sell the vacant parcel or build anything on it, its value as an investment has diminished by as much as 90 percent. Donna Murr said the property was appraised for $400,000 before the Murrs tried to sell it, but when the family asked the county to buy it from them (since no one else was allowed), they were offered a mere $40,000. Murr told the Eau Claire Leader-Telegram last year that the family has paid more than $78,000 in taxes on the property since purchasing it. Some investment. The Pacific Legal Foundation, a California-based libertarian law firm, is representing the Murr family in the case. Attorneys for PLF say they hope to strike a blow against an all-too-common problem across the country: that regulators must provide just compensation when prohibiting private property owners for using their property as they want. The Fifth Amendment requires government to compensate land owners when property is taken for a public purpose. If the Supreme Court sides with the Murr family, the case could serve to extend that principle to situations where property, for all intents and purposes, has been seized by regulators who are prohibiting the use or sale of land. "This case has broad implications, because the Murrs are far from alone in confronting this issue," says John Groen, an attorney for PLF. "The problem of bureaucrats and courts defining the parcel as a whole to include adjoining lots in common ownership presents itself throughout the country." In briefs filed with the Supreme Court in advance of oral arguments, St. Croix County defends its decision to merge the two parcels of land for regulatory purposes. The existing cabin (and any future construction on the adjacent parcel) violates rules passed in the 1975 banning construction near the river. "By allowing an additional residence that failed to meet minimum standards in an area already threatened by overcrowded development…the county's ability to prevent harmful soil erosion, avoid contamination of surface and ground water, minimize flood damage, and maintain property values would be seriously undermined," attorneys for St. Croix County wrote. The county also argues that the Donna Murr, her siblings, and her parents (who owned the lots until the mid-1990s, when they sold the[...]
Tue, 28 Feb 2017 15:30:00 -0500In 2015, the Environmental Protection Agency issued a new Clean Water Rule, a.k.a. Waters of the U.S. (WOTUS) rules defining the jurisdiction of the agency over rivers, lakes, creeks, estuaries, ponds, swamps, prairie potholes, irrigation ditches, and intermittent rivulets. The new rules were based on the EPA's interpretation of the provisions of the 1972 Clean Water Act that mandated that the agency devise "comprehensive progams for water pollution control" aimed at "preventing, reducing, or eliminating the pollution of the navigable waters and ground waters and improving the sanitary condition of surface and underground waters." The agency reasoned that it had authority to regulate non-navigable upstream water sources like farm ponds and intermittent streams since they could carry pollution down to navigable waters like lakes and rivers. These new rules brought nearly half of Alaska and a total area in the lower 48 states equivalent to the size of California under the Clean Water Act's jurisdiction. The upshot is that under the new more extensive regulations, ranchers, farmers, and property developers had to seek permission from the U.S. Army of Corps of Engineers to make changes that might affect minor sources of water on their land. Obtaining permits could take years and cost thousands of dollars. At least 32 states have sued to prevent the new regulations from taking effect, and the Sixth Federal Appeals Circuit Court stayed the new rules in October, 2016. At the Conservative Political Action Conference meeting last week, new EPA Administrator Scott Pruitt declared that the Obama administration's WOTUS regulation had "made puddles and dry creek beds across this country subject to the jurisdiction of Washington DC. That's going to change." The new executive order that President Trump is expected to sign today directs that EPA to reopen the rulemaking process to repeal and revise the WOTUS rules. The agency is explicitly told to use the standards set out in former Supreme Court Justice Antonin Scalia's plurality opinion in the 2006 Rapanos vs. United States case. In his opinion, Scalia declared: In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] … oceans, rivers, [and] lakes." See Webster's Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps' expansive interpretation of the "the waters of the United States" is thus not "based on a permissible construction of the statute." Of course, various activist groups are alarmed at the potential rollback of EPA authority. For example, Trout Unlimited issued a statement: Gravity works cheap, and it never takes a day off. The Administration cannot stop water flowing downhill—and we all live downstream. To be effective, the Clean Water Act must be able to control pollution at its source, upstream in the headwaters and wetlands that flow downstream through communities to our major lakes, rivers, and bays. ... If Justice Scalia's direction is followed, 60 percent of U.S. streams and 20 million acres of wetlands would lose protection of the Clean Water Act; an unmitigated disaster for fish and wildlife, hunting and fishing, and clean water. In favor of Trump's new executive order American Farm Bureau Federation President Zippy Duvall declared: President Trump's executive order to ditch the Waters of the U.S. rule is a welcome relief to farmers and ranchers across the country today. The flawed WOTUS rule has proven to be nothing more than a federal land grab, aimed at telling farmers and ranchers how to run their businesses. The Environmental Protection Agency failed to listen to farmers' and ranchers' concerns when drafting the rule and instead created widespread confusion for agricultu[...]
Wed, 22 Feb 2017 11:15:00 -0500
(image) If you're a fan of the Ornery Holdout Battling Eminent Domain genre of newspaper writing, you should read Anya Litvak's profile of David Rheinlander in the Pittsburgh Post-Gazette. Here's the lede:
If David Rheinlander believes that his 5.5 acres, which include woods and a modular home, are worth $10 million, then who exactly is the Rover Pipeline or the federal government, for that matter, to say otherwise?
"If they don't like it, go around me," Mr. Rheinlander said less than a week after Energy Transfer Partners, the Texas-based firm developing a massive natural gas pipeline, asked a federal court to condemn a 150-foot-wide line across his Washington County [Pennsylvania] land so it can cut down his trees as soon as possible.
Litvak goes on to describe Rheinlander's early encounters with the company's land agents ("Even during those amicable conversations, the phrase eminent domain was a frequent garnish, he recalled") and the ensuing arguments over safety, property rights, and where the best route for the pipeline would be. My knee-jerk sympathies, as always, are with the holdout. The company claims that it faces "billions of dollars of lost revenue" without the property, which to me suggests they should pay Rheinlander more than the $3,500 they're offering, but I guess they think they've found a legal workaround.
The story also gives us a glimpse of a bigger issue, a dark side of the fracking boom:
The number of eminent domain pipeline cases has risen in proportion to the pace at which pipelines are being built to accommodate the shale gas boom—which is to say, it has ballooned...
Read the whole thing here.
Mon, 13 Feb 2017 12:45:00 -0500Members of a small, low-income community in Indiana are discovering that state-level protections that make it hard for cities to seize their property may not be enough. When city leaders decide to get into bed with private developers, there are all sorts of ways for cronyism to threaten the property rights of owners. When we imagine how a city or town seizes private property from citizens in order to hand it over to developers for special projects, we often think about eminent domain. Governments can force citizens to sell them their property (often for much less than it's worth on the market). While eminent domain was supposed to be used solely for public works projects (roads, schools, et cetera), the infamous Kelo v. City of New London Supreme Court decision set a legal precedent allowing governments to use it to hand over property to private developers for big projects. Some states that objected to that decision passed new laws to restrict how eminent domain may be used within their borders. Indiana was one of them. So property rights-minded citizens might be surprised to hear that the mayor and city officials of Charlestown, Indiana, a rural community with a population of less than 8,000, are trying to arrange to hand over hundreds of homes to a private developer. He's not using eminent domain to do so. Instead, the city stands accused of deliberately finding excuses to burden the community's residents with thousands of dollars of fines that will be waived if they sell their properties to the private developer. The property-rights-defending lawyers of the Institute for Justice (you may recall their efforts to stop abuse of civil asset forfeiture) are stepping in to represent several property owners in this community and are seeking an injunction to stop the city from trying to use code violation citations to essentially force property transfers. Within Charlestown is a low-income neighborhood named Pleasant Ridge, full of working-class folks and retirees. According to the Institute for Justice, Mayor Bob Hall decided in 2014 that he wanted to get rid of the houses there and replace it with a more upscale planned community with fancier homes and retail options. But he needed to get rid of the houses (and the people within them) first. Starting in 2016, residents and property owners of Pleasant Ridge discovered Charlestown had a nasty tool to try to get rid of them. City officials started looking for any excuse to cite property owners for code violations. When you're looking at low-income neighborhoods full of working people and retirees, there are likely to be plenty. The Institute for Justice described how it played out: Beginning in the summer of 2016, the city unleashed a torrent of code enforcement targeted specifically at the Pleasant Ridge neighborhood. City officials began performing exterior inspections of properties in Pleasant Ridge and mailing citations to the owners. So far, this campaign has primarily targeted landlords who own multiple rental properties, rather than smaller landlords and owner-occupied houses. The citations state that the owner accrues penalties of $50 per violation, per day. Multiple citations are issued per property, which means that a single property will begin accumulating hundreds of dollars in fines each day. The fines can be for things as minor as a torn screen, weeds taller than eight inches or chipped paint. In many cases, the fines begin the day the citation was issued, not the day the owner received it. So owners can easily be on the hook for thousands of dollars in fines before they even receive notice, and the fines continue to accrue until the owner is able to repair the property. The city knows that many of the residents cannot afford to pay these exorbitant fines, leaving them only two options: Sell their home to Neace Ventures or raze it to the ground to have the fines waived. The scheme would be bad enough if Neace were offering fair market value for the home[...]
Thu, 09 Feb 2017 08:00:00 -0500In a meeting with county sheriffs from around the country on Tuesday, President Trump jokingly (we hope!) threatened to "destroy [the] career" of a Texas legislator who proposed requiring the government to obtain a conviction before taking property allegedly tied to crime. As Nick Gillespie noted, Trump's knee-jerk support for civil asset forfeiture is troubling, especially in light of a growing bipartisan consensus that the practice should be reformed or abolished because it hurts innocent property owners and warps law enforcement priorities. Worse, the White House transcript of the president's remarks about forfeiture shows he literally does not know what he is talking about, which suggests this "law and order" president is happy to go along with whatever cops want, even if he has no idea what it is. Jefferson County, Kentucky, Sheriff John Aubrey broaches the subject of forfeiture, complaining that "people want to say we're taking money and without due process." According to Aubrey, "That's not true. We take money from dope dealers." Such assurances should be viewed with great skepticism, since civil forfeiture lets cops fund their own budgets by confiscating property they claim is connected to criminal activity. The government need not charge the owner, let alone convict him, and may not have to offer any evidence at all, since challenging forfeitures is often prohibitively expensive. It's clear from Trump's response to Aubrey's complaint that he does not know any of this (italics added): Trump: So you're saying—OK, so you're saying the asset taking you used to do, and it had an impact, right? And you're not allowed to do it now? Aubrey: No, they have curtailed it a little bit. And I'm sure the folks are— Trump: And that's for legal reasons? Or just political reasons? Aubrey: They make it political, and they make it—they make up stories. All you've got to do— Trump: I'd like to look into that, OK? There's no reason for that. Dana, do you think there's any reason for that? Are you aware of this? Acting Attorney General Dana Boente: I am aware of that, Mr. President. And we have gotten a great deal of criticism for the asset forfeiture, which, as the sheriff said, frequently was taking narcotics proceeds and other proceeds of crime. But there has been a lot of pressure on the department to curtail some of that. Trump: So what do you do? So in other words, they have a huge stash of drugs. So in the old days, you take it. Now we're criticized if we take it. So who gets it? What happens to it? Tell them to keep it? Boente: Well, we have what is called equitable sharing, where we usually share it with the local police departments for whatever portion that they worked on the case. And it was a very successful program, very popular with the law enforcement community. Trump: And now what happens? Boente: Well, now we've just been given—there's been a lot of pressure not to forfeit, in some cases. Trump: Who would want that pressure, other than, like, bad people, right? But who would want that pressure? You would think they'd want this stuff taken away. Aubrey: You have to be careful how you speak, I guess. But a lot of pressure is coming out of—was coming out of Congress. I don't know that that will continue now or not. Trump: I think less so. I think Congress is going to get beat up really badly by the voters because they've let this happen. And I think badly. I think you'll be back in shape. So, asset forfeiture, we're going to go back on, OK? Aubrey: Thank you, sir. Trump: I mean, how simple can anything be? You all agree with that, I assume, right? Unnamed Participant: Absolutely, yeah. Trump: Do you even understand the other side of it? Participant: No. Trump: It's like some things— Participant: No sense. Even though Aubrey talks about "tak[ing] money from dope dealers" and Boente refers to "narcotics proceeds and other proceeds of crime," Trump initially seems to think [...]
Wed, 21 Dec 2016 11:31:00 -0500First, let's agree that governments around the world regularly screw indigenous peoples. The most frequent governmental screwing occurs when authorities take their land on the grounds that it has not been not properly registered and titled. Additionally, except for the United States, nearly every other government claims to own all mineral rights within its territory. Consequently, royalties from mining concessions awarded by governments go to, yes, the governments. The upshot is that indigenous communities get screwed again when they have to endure the downsides of mining that takes place where they live while receiving none of the benefits that royalties would provide since those monies are diverted into government agencies headquartered far away. Why am I going on about this? Because The Washington Post could have usefully made these observations in its story, "Tossed Aside in the 'White Gold' Rush: Indigenous people are left poor as tech world takes lithium from under their feet." The article details how various mining companies are beginning to exploit lithium deposits in Argentina's far northwestern province of Jujuy. The indigenous folks who dwell and herd llamas and goats in those remote Andean valleys happen to live next to giant salt flats that contain millions of tons of lithium. Lithium, of course, is the main element in the batteries that supply electricity to our mobile phones, computers, and electric cars. The main complaint of the article is that besides new relatively high paying jobs and some minor financial assistance with community projects, the international mining companies that are making millions mining lithium are not sharing much of the proceeds with local communities. Basically, The Post casts the mining companies and the high tech companies that use Argentinian lithium in their products as the villains. Certainly, some of the local Atacama people are pissed off because they feel insufficiently consulted and rewarded. And that's fine. But the real villains are the national and provincial governments that take the royalties and taxes and then do not use them to provide adequate services to their citizens who live in the region. In a single off-hand observation, The Post reporters do note, "The Atacamas' ability to share in the lithium profits is compromised by complex mineral rights — in Argentina, the provincial government owns them." Well, yes. They also observe that Jujuy, the province in which the lithium salt flats are located, has "started formalizing land titles for indigenous communities in 2003, making it one of the first provinces to do so." This form of communal property right empowers village leaders to negotiate and sign contracts on behalf of all of the members of their communities. If local leaders make a mistake or are themselves corrupt, then the whole community suffers. Under Argentinian law mineral rights belong to the country's provinces which "cannot impose royalties exceeding 3 percent of the mine mouth value of the extracted minerals." In addition, the central government imposes a 35 percent corporate income tax and an export tax of 5 to 10 percent on profits derived from the sale of minerals. The provincial and central governments could use those monies to provide services to the communities where the mining is taking place. [For comparison, hardrock royalty rates for leases on state-owned lands in the western U.S. range from 1.25 percent (Arizona) to 10 percent (California) of the gross value of the minerals mined.] A local group near the salt flats hired a lawyer Jorge Iglesias to oppose the mining. As The Post reports, Iglesias went to "court in 2014 to contest the government's approval of the lithium mines, claiming 'irreparable irregularities' in the approval process and arguing the local communities were not properly notified about the process. The court dismissed the lawsuit last year." The Post then qu[...]
Fri, 02 Dec 2016 04:00:00 -0500
(image) In her will, Dolores Hope directed that the home she shared for many years with her husband actor Bob Hope be sold and the proceeds given to a charity they founded. Linda Hope, their daughter, wants to do that. But she's fighting an effort by Los Angeles City Councilman David Ryu to have the property declared a cultural landmark. Ryu says he fears part of the house might be destroyed without the designation.
Wed, 23 Nov 2016 00:01:00 -0500Tomorrow, as you celebrate the meal the Pilgrims ate with Indians, pause a moment to thank private property. I know that seems weird, but before that first Thanksgiving, the Pilgrims nearly starved to death because they didn't respect private property. When they first arrived in Massachusetts, they acted like Bernie Sanders wants us to act. They farmed "collectively." Pilgrims said, "We'll grow food together and divide the harvest equally." Bad idea. Economists call this the "tragedy of the commons." When everyone works "together," some people don't work very hard. Likewise, when the crops were ready to eat, some grabbed extra food—sometimes picking corn at night, before it was fully ready. Teenagers were especially lazy and likely to steal the commune's crops. Pilgrims almost starved. Governor Bradford wrote in his diary, "So they began to think how they might raise as much corn as they could... that they might not still thus languish in misery." His answer: He divided the commune into parcels and assigned each Pilgrim his own property, or as Bradford put it, "set corn every man for his own particular. ... Assigned every family a parcel of land." That simple change brought the Pilgrims so much plenty that they could share food with Indians. Bradford wrote that it "made all hands very industrious, so as much more corn was planted than otherwise would have been." We see this principle at work all around us today. America is prosperous because private property is mostly respected, and people work hard to protect what they own. China rose out of poverty only when the Communist rulers finally allowed people to own property and keep profits from it. But wait, you say, didn't the Native Americans live communally? Isn't that proof that socialism and collective property work? No. It's a myth that the Native Americans had no property rules. They had property—and European settlers should have treated those rules with respect. Native American property rules varied. There wasn't much point trying to establish private property in rocky hinterlands where no one traveled. But, writes Terry Anderson of the Property and Environment Research Center, "Private garden plots were common in the East, as were large community fields with plots assigned to individual families. Harvesting on each plot was done by the owning family, with the bounty stored in the family's own storehouse." Today, however, many American Indians live in poverty. It's not because Native Americans are lazy or irresponsible. When Indians are allowed to own their own land, they prosper. The laws of economics are the same for all people. I asked Manny Jules, chief of the Kamloops Indian Band for 16 years, why so many Indians are poor. "Nobody chooses poverty," he said. "We've been legislated out of the economy by the federal governments, both in the United States and Canada." That sounds odd to people who know how much money governments spend to "care for" Indians. "Well, by taking care of us, that means providing social welfare programs," says Jules. "The only way to break the cycle of poverty (is) real property rights." The U.S. government, after killing thousands of Native Americans and restricting others to reservations, gave tribal governments control over Indians' lives, in collaboration with the government's Bureau of Indian Affairs. Since then, no group in America has been more "helped" and "managed" by the federal government than Indians. Because of that, no group has done worse. Homes on reservations are likely to lack electricity and indoor plumbing. There is serious alcoholism and drug abuse. A staggering number of American Indians are unemployed. Many commit suicide. Jules says not being able to own your own land is part of the problem. "You can't borrow. You can't get a mortgage. You can't be bonded. There's nothing that you can have that'll[...]
Fri, 14 Oct 2016 14:18:00 -0400A potentially massive new class-action lawsuit filed by the Institute for Justice seeks to stop the terrible practice by New York City that attempts to intimidate small business operators and renters into signing away their constitutional rights in order to avoid getting evicted as a method of "nuisance abatement." This practice, authorized by a law passed in the 1970s intended to clean up Times Square, has been exposed as a source of abusive police and city behavior against citizens. All police have to do is find evidence that a crime might have taken place on a property in order to threaten people with eviction. The way the law is worded doesn't require a conviction or even charges for the city to move forward. It's not unlike the abuse-prone civil asset forfeiture programs where police attempt to seize cash and property from people for mere suspicion of criminal activity. A media investigation back in February exposed how this alleged "nuisance abatement" program has resulted in hundreds of people being ejected from their homes by the New York Police Department, but there frequently were no convictions for any crimes, and in some cases, not even charges. This week the Institute for Justice (IJ) filed a class-action suit to try to stop some of the coercion embedded in this program and its lack of due process. The police and New York City often use the threat of eviction to try to intimidate people into signing away their property rights, their due process, and even the right to decide who may live with them. IJ is representing three plaintiffs at the start. Sung Cho owns a laundromat targeted by police, and David Diaz and Jameelah El-Shabazz are renters. IJ's announcement of the lawsuit focuses on Sung's experience: On a cold December morning three years ago, Sung Cho showed up to open his laundromat business in Manhattan and found a bright orange eviction notice attached to the window. The notice said he had just a few days to prepare for a hearing—scheduled for Christmas Eve—where he would have to convince a judge that his business should not be closed. Sung soon learned that he was threatened with eviction because undercover New York police officers came to the laundromat and offered to sell stolen electronics. Two people took the bait, though neither had any connection to Sung's business. Sung was the target of the NYPD's no-fault eviction program, which punishes businesses and residents when somebody else—even a total stranger—commits a crime on or near their property. The program allows the NYPD to evict tenants, no conviction required. Neither Sung, nor his business or employees were implicated in the sting. But that didn't matter, as innocence was not a defense under the city's ordinance. Sung could be evicted simply because his business was the site of a crime. But there was a way for Sung to save his business, the city told him: The city would drop the eviction action if Sung agreed to three demands: waive his Fourth Amendment right against warrantless searches, grant police unlimited access to his security camera system, and allow NYPD to impose future fines and sanctions for alleged criminal offenses at the business without any opportunity for a hearing before a judge. Faced with no other option, Sung signed the agreement. IJ's lawsuit is aiming to block this sort of intimidation and to force New York City to stop threatening citizens with eviction unless they sign away their constitutional rights. Reason spoke with Robert Everett Johnson, an IJ attorney handling the lawsuit. They're not sure how many New Yorkers might be able to join the suit, but the report from February found nearly 150 cases where residents either gave up leases or were banned from homes without having been convicted of a crime. That was over a period of just 18 months. Given how old[...]
Mon, 03 Oct 2016 12:00:00 -0400Eighty-three-year-old Hazel Palmer could become the Suzette Kelo of Virginia—the face of a property-rights revolution. She has a piece of land in Augusta County along the proposed route of the 600-mile, $5 billion Atlantic Coast Pipeline. It has been in her family for four generations, and she does not want surveyors for the pipeline traipsing across it—especially if said surveying leads to what she fears: a staging area for drilling inside her property line. A state law says the pipeline's surveyors don't need her permission to step onto her property. The state's constitution might say otherwise. Virginia's Supreme Court will decide the matter. The pipeline has generated ferocious opposition from environmentalists and those who don't want it running through their backyards. The latter cohort includes a lot of scrappy citizen-activists along with some well-heeled interests, and they have raised a host of objections to the project—some more persuasive than others. Palmer probably wouldn't have a snowball's chance herself, if it were not for an amendment supported by 75 percent of the voters in 2012. Courts have repeatedly ruled against property owners who refuse entry to natural-gas surveyors. In 2004 the commonwealth passed legislation explicitly granting natural-gas companies authority to enter private property for "examinations, tests, land auger borings, appraisals and surveys without the written consent of the owner." Nor is that anything new. A 1782 law allowed surveyors to enter private property to survey land for the location of public roads, and forbade anyone to "stop, oppose, or hinder" them. Similar laws passed in 1819, 1860, and 1944 granted the same power to turnpike companies, "internal improvement" companies, and railroads. As a general rule, the right to property—the right to the use and benefit of your land, house, car and so forth—entails the right to keep people out of it. "This is mine" necessarily implies "it's not yours." But there have always been exceptions to this "right to exclude," and you can easily see why: If Smith's house is on fire, Smith's neighbors should be able to enter his property to keep the fire from spreading to their own homes. If the neighborhood children accidentally toss a frisbee onto Smith's lawn, most people would say they should be able to retrieve it without being arrested for trespassing. If the sheriff has a warrant, Smith can't avoid arrest by forbidding the sheriff to step on his land. Lawyers for the pipeline—a joint project of Dominion, Duke, and two smaller companies—therefore say that Palmer has no right to exclude the surveyors in the first place. And even if she did, they continue, the minor inconvenience of having surveyors walk across her land does not qualify as a "taking" of private property, let alone one that requires compensation. No title of ownership is being transferred, and the surveying will not keep Palmer from using and benefiting from her property: no harm, no foul. Finally, in the event that the surveyors do inflict any damage to her property, they will have to pay for it. Palmer's lawyers assess the inconvenience as more than minor: "A flagging crew would clear a path through the property and flag the proposed route. A survey crew would survey the property. An environmental crew would collect environmental data by various methods, including digging into the property with hand augurs to look for wetland soils. A cultural resource crew would use hand shovels to dig 1.5 foot wide by 1.5 foot deep holes every 50 feet along the proposed pipeline route looking for items of cultural interest, which, if found, would be dug up and taken from the property for analysis. ... All told, five crews totaling around 20 people would enter the property over Ms. Palmer's objections.[...]
Fri, 16 Sep 2016 02:40:00 -0400During a 1997 speech to the American Planning Association in Monterey, Peter Douglas, the longtime executive director of the California Coastal Commission and main author of the 1972 initiative that created it, argued that private property rights were on a collision course with the environmental movement. He warned of "the clear and present threat to the health and well-being of the public flowing from the property rights debate" and expressed concern "about the direction in which the debate is being driven by the courts." Douglas gave a tongue lashing to the Pacific Legal Foundation, a Sacramento-based group that litigates on behalf of property owners fighting against government agencies. Douglas died four years ago, but the agency he guided for several decades continues to implement his—and the ensuing 1976 coastal act's—vision in an oft-times heavy-handed manner. The agency has broad powers to control land use along California's 1,100-mile coastline. If he were alive today, Douglas would be appalled at an Orange County court ruling late last month in a San Clemente case. Those of us who believe in limited and accountable government, and who bristle at the thought of bureaucrats shaking down property owners for unfair concessions, should celebrate. Douglas was right in this much, however: The courts have found constitutional property protections sometimes are at odds with the goals of environmentalists. Even sweeter: The winning property owners were represented by the same group he chided. The case is Capistrano Shores Property LLC v. California Coastal Commission. The main issue is fairly simple. Eric Wills and his family moved a mobile home to a beachfront park in 1977 as a second home. After 38 years, they sought a permit to replace the aged structure. The commission agreed to the request for a slightly smaller one after requiring the owner to provide a geological study of the site's risks based on predicted rising sea level. And there were hearings. "But there was a catch," PLF attorney Larry Salzman wrote in an Orange County Register column in April. "The permit was subject to the condition that the Wills forever waive their rights to future shoreline protection of their property, including the right to maintain, repair or enhance the existing seawall." The commission is requiring any park lessees to do the same thing if they seek to replace their old trailers with nicer and newer ones. The owners are not asking the government to maintain a seawall—but only for the right for the community to maintain the wall it's responsible for. That demand that they give up future rights seems Orwellian, except that this is common procedure for an agency that doesn't seem to care much for the current rights of property owners. "For years, the commission has reflexively opposed shoreline protection for private property wherever it can... Instead, the commission has insisted on a controversial policy of 'managed retreat' from the coast," Salzman explained. Basically, environmentalists would like owners to "retreat from the coastline over time" and let nature take its course. In this case, the commission wanted to stop any future seawall expansion from the mobile-home park to protect the size of the beach. The problem, for those who echo Douglas' mindset, is that in the United States public officials are limited in their ability to simply deprive the rightful owners of the legitimate use of their property. "So unless we amend our national Constitution to give Americans a constitutional right to a high 'quality' of life (as is the case in India) or to give standing and protection to the environmental commons of the country, it is the courts that will be the arbiters of the debate over property rights and the protection of environm[...]
Thu, 30 Jun 2016 11:33:00 -0400When the IRS cleaned out his bank account in 2012, Maryland dairy farmer Randy Sowers told a congressional subcommittee last year, "I was really taken aback by that. I couldn't believe...they would just come in and take my money with no prior notice." But such was standard practice in so-called structuring cases, where the government suspected people had deposited money in amounts less than $10,000 to avoid a federal reporting requirement. It did not matter if, as in Sowers' case, the money came from legitimate sources and there was no evidence of any other illegal activity, since structuring itself is a crime. That made no sense to Sowers. "I thought the government was supposed to protect me," he said. "I didn't think they were supposed to come out and try to put me out of business...I think the government ought to give my money back." Yesterday the government finally agreed to do just that, a development that opens the door to righting hundreds of similar wrongs. In October 2014, responding to negative publicity surrounding forfeiture cases like this, the IRS said it would no longer seize money from people whose only crime consisted of making deposits or withdrawals that the government deemed suspiciously small. The Justice Department announced a similar policy five months later. But the policy change came too late for Sowers, who ran afoul of the IRS because of what he describes as an attempt to avoid extra paperwork related to the cash he and his wife, Karen, took in at farmers markets. "My wife went to the bank one day, and she had $12,000 in cash because we do a festival," Sowers testified. "So we had a little bit of extra cash that week. And when she went to deposit it, the teller told her, 'Well, next time, just keep it under $10,000, and I don't have to fill out a form.' So that is what she did." The honest, hardworking, and otherwise law-abiding couple did not realize that courtesy was a felony. The government, which conceded the money was legally earned, seized $63,000 but eventually agreed to return about $33,000 of it. Sowers testified that the federal prosecutor handling the case initially seemed inclined to return more than that, but his attitude changed after Sowers told his story to the Baltimore City Paper. Something similar happened in the structuring-related forfeiture case involving North Carolina convenience store owner Lyndon McLellan, who nevetheless persevered and ultimately won. Like McLellan, Sowers had help from the Institute for Justice, which is asking the Justice Department to apply the new guidelines for structuring cases to forfeitures initiated prior to the change. I.J. filed a petition on Randy and Karen Sowers' behalf last July, noting that "the government has never even alleged that Randy and Karen did anything unlawful," aside from making deposits of less than $10,000. The petition described the couple's agreement to let the government keep $29,500 of their money as accepting "an offer they could not afford to refuse" and cited congressional criticism of the case. The petition was supported by nine members of the House subcommittee that heard Sowers' testimony. At the same hearing, they noted, IRS Commissioner John Koskinen had testified that "anyone who...was not engaged in processing and laundering illegally gained funds who ended up stuck in the system...deserve[s] an apology." If so, I.J. argued, how can the government let such injustices stand? "If it would be wrong to take the money today," I.J. attorney Robert Everett Johnson said in a February 16 letter to Attorney General Loretta Lynch, "it is equally wrong to keep it." Apparently Lynch agreed, or at least worried that most people would draw that conclusion. Johnson thinks the decisi[...]
Fri, 24 Jun 2016 13:05:00 -0400Should basic survival be permitted to trump property rights? And what are the implications for saying "yes"? We may find out in Massachusetts. The state's Supreme Judicial Court has ruled that a homeless man can fight criminal trespassing charges by claiming it's the only way for him to protect himself from the cold. Note that this doesn't necessarily mean the gentleman would be allowed to just barge in anywhere because of the chill or even that a jury or judge will buy the argument. The issue was that a judge denied the ability for the homeless man to use "necessity" as a defense to a jury. The Associated Press explains: In a unanimous, 7-0 ruling, the court threw out six 2014 trespassing convictions. The court said the necessity defense allows a jury to weigh the plight of a homeless person against any harm caused by a trespass before determining criminal responsibility. "Our law does not permit punishment of the homeless simply for being homeless," Justice Geraldine Hines wrote for the court. The court noted that its ruling was not an open invitation for homeless people to trespass. "Allowing a defendant to defend his trespassing charges by claiming necessity will not, of course, condone all illegal trespass by homeless persons," Hines wrote. The owners of the properties had gotten orders to stop the guy from trespassing, so there's a definite conflict here between the right of the homeless man to find refuge from extreme weather and the rights of the property owners to control who is and is not permitted in their spaces. But we needn't have to accept that this conflict is a natural consequence of having homeless among us. Let us not forget the many, many ways that municipalities make it hard for the poorest among us to solve their own problems. Let's drive across country to Los Angeles, where homeless folks are probably not likely to have to suffer much from cold weather. But they have to deal with municipal regulations designed to keep them from a sleep solution that doesn't violate anybody else's property rights at all. Los Angeles wants to adopt a new ban on homeless people sleeping in their own vehicles in many public spaces. Los Angeles actually already had a ban on sleeping in one's vehicles (as do many California cities) but it was struck down in 2014. Judges ruled that the wording of the law was so unclear that it was being used by police to threaten people based on having food and personal property in their vehicles and even for sleeping in their cars on private property. Los Angeles didn't fight the decision and said they would craft a new, clearer ordinance. And now it's back for consideration. From the Los Angeles Times: At the city's homelessness and poverty committee Wednesday, Councilman Mike Bonin proposed barring homeless people from "lodging" in vehicles parked by homes and schools, while allowing them to sleep in their cars and campers from 9 p.m. to 6 a.m. in commercial areas and in designated city, nonprofit agency and church lots. Bonin said his proposal could forestall a more sweeping ban and avoid repeating what he called "absurd and pathetic" scenarios of the past, when police would ask people to get out of their cars to sleep on the sidewalks. Homeless advocates said they doubt the city will come up with enough designated spaces to serve the city's homeless (the number of cars and RVs that are being used for living space in Los Angeles is estimated at around 4,600). And given that violating the law is a misdemeanor violation, they fear it will be used by police to harass the poor (and take and destroy their property). Furthermore, Los Angeles makes it hard for homeless or extremely poor people to work their way out of their situation[...]
Thu, 23 Jun 2016 04:00:00 -0400
(image) For 17 years, Tom Carroll and Hermine Ricketts grew a vegetable garden in the front yard of their Miami Shores, Florida home, and no one ever complained. Then, the City Council passed a law requiring front lawns be covered with only with grass, sod or "living ground cover," and city officials threatened them with a $50 a day fine if they planted that garden again. The couple are now in court fighting for their right to plant their garden.