PLF on Eminent Domain

PLF's new weblog

If you haven't already seen it, come on by and check out the Pacific Legal Foundation's new Liberty Blog. PLF on Eminent Domain will be merging with PLF Liberty Blog, where we'll cover not only eminent domain news, but updates on all of the many ways in which PLF fights for freedom.

The Problem with Land Use Controls

by Timothy Sandefur

I was up in the Lake Tahoe area this weekend and ran across a flyer for a property for sale. This little cabin is near Fallen Leaf Lake, which is a smaller lake at the bottom of a creek the flows out of Tahoe and over some gorgeous waterfalls. The cabin itself is tiny—768 square feet, a single bedroom and a single bathroom—and it does not have a lake view or a garage. It’s at the end of a quarter-mile single-lane road, so that to drive there you have to keep pulling over to let cars by. You can only use it during the summer months because it snows in completely in the winter. It’s on a small, quarter-acre parcel of land.

And yet, as you can see, the sellers are asking almost nine hundred thousand dollars for it.

Why? Note what it says on the flyer: “TRPA Site Assessment Completed,” “Topographic As Built Survey, House Plans.” In other words, this is a tear-down property for almost a million dollars. And that’s because the Tahoe Regional Planning Agency makes it so difficult to get permission to build on your land that even a tiny opportunity like this is valued at an astronomical price.

We often hear law professors and government lawyers claim that the building permit system actually increases your property value—that’s the claim, for example, being made by the City of Flagstaff in our Proposition 207 lawsuit. But obviously it doesn’t increase the value for the people who are prohibited from using their land. What it really does—what the inflated value of this property really represents—is a transfer of property value from those forbidden to build to those allowed to build. This little cabin is like a sponge that has soaked up the property values of other Tahoe area residents—values taken from those residents by the oppressive land use restrictions in the Lake Tahoe area.

And whatever you think about restrictions in the Tahoe area, the fact is that these restrictions do the same thing wherever they are put in place. In ugly urban areas no less than in a pristine wilderness. These restrictions violate property rights by taking away the right to use your property—and thereby drive up the price for the remaining property that still can be used. The results are higher housing prices and a higher cost of living for everyone in society.

Building-Permit Extortion

The Orange County Register had an editorial yesterday about the Carlsbad case. Excerpt:

This is one of the most outrageous things we've seen: a demand by the city that an owner permanently cede his rights in exchange for a permit.

Officials forget that in a free society, individuals have rights to use and develop their property as they see fit, provided they don't cause harm to others. But officials act as if the government maintains all rights and can simply divvy them up to individuals in exchange for various indulgences.

Read the rest...

Begging for Billionaires in Texas

by Timothy Sandefur

The outstanding documentary on eminent domain abuse, Begging for Billionaires, will be presented at the Texandance International Film Festival in New Braunfels, Texas, June 5-7. Check it out!

Cato podcast on Griswold v. Carlsbad

by Timothy Sandefur

The Cato Institute's daily podcast today features my discussion of the Griswold v. Carlsbad case. That's the case I argued in the Ninth Circuit Court of Appeals last week, and you can read more about it here. You can download the podcast from iTunes or listen to it at Cato's site.

More on the Carlsbad Voting Rights Case

by Timothy Sandefur

I spoke to Armstrong and Getty on their Northern California radio show this morning about the case of Griswold v. City of Carlsbad. That's the case in which my clients were forced to give up their right to vote in exchange for a building permit. Then I went in and argued the case before the Ninth Circuit Court of Appeals. You can listen to the radio show here, (right-click and "save as"), and you can listen to the oral argument itself here.

Also, thanks to The Volokh Conspiracy, the Cato Institute, and Reason magazine for their interesting commentary on the case.

Update: Here is a brief video of me explaining the Griswold case:

City Forces Property Owner to Give Up Right to Vote: Ninth Circuit Argument

by Timothy Sandefur

Tomorrow I will be arguing the case of Griswold v. City of Carlsbad in the Ninth Circuit Court of Appeals in Pasadena, California. This is an astonishing case in which city officials forced the Griswold family to give up their constitutionally protected right to vote in exchange for a building permit. Hard as that might be to believe, it is actually not unique: it's actually quite common for local governments to abuse permits by forcing property owners to give up money or land or other rights.

Here's how the law works. Under the California Constitution, property owners are entitled to vote on whether their property should be assessed for local "improvements"--things like street lights or sidewalks. These are technically not taxes, but "assessments," and the state Constitution prohibits the government from imposing these assessments without giving affected property owners an opportunity to vote on them. But what the city of Carlsbad decided to do was to force people to pay these assessments up-front (which is illegal). And if the owner can't afford this--in the Griswolds' case it was almost $115,000--then the owner must sign an agreement giving up the right to vote on these assessments (large PDF file). And this waiver actually runs with the land, meaning anyone else who buys the property is also not allowed to vote.

Amazing as it sounds, there are other similar cases going on right now. In the city of Santa Rosa, California, officials are forcing people to waive their right to vote on the annexation of their property into a local tax district, in exchange for building permits. That voting right is guaranteed by the state's "Mello-Roos Act." And we've heard of similar cases in Montana and elsewhere.

Sadly, local governments frequently force property owners to give up rights in exchange for these kinds of permits. What this means is that the government is essentially confiscating a person's property, and then selling it back to that person in exchange for their rights. Usually, cities demand money in exchange for permits; they also often force people to give up land for a permit. In this case, the city is forcing people to give up a voting right guaranteed by the California Constitution.

More than twenty years ago, Pacific Legal Foundation attorneys won the case of Nollan v. California Coastal Commission before the United States Supreme Court. That decision made clear that a building permit is not some kind of a privilege that the government can sell to you. Permits are supposed to protect the general public against dangerous or burdensome property uses, and government officials should not use them as an opportunity to exploit homeowners and business owners and force them individually to pay for public projects that ought to be paid for by taxpayers in general.

We filed a lawsuit against Carlsbad's absurd policy in 2006, but the trial court dismissed the case, holding that the Griswolds should have sued earlier. We are now on appeal, and oral argument in the case will be heard tomorrow at 9 a.m. Although the argument here is a technical one, the bottom line in the case is clear: government should not be able to abuse the permit process to exploit property owners and take away individual rights.

You can learn more about the Griswolds' case by reading our media backgrounder, or at our website.

Update: I'll be on the Armstrong and Getty Show tomorrow in the 8 o'clock hour to discuss the case.

Court Thows Out Another Attempt To Silence Critics of Eminent Domain

by Timothy Sandefur

You're familiar with the frivolous lawsuit filed by Texas developer H. Walker Royall against Carla Main, the author of the excellent book Bulldozed. (The book chronicles an egregious example of eminent domain abuse in which Royall was deeply involved; you can read my review of the book here.) Well, Royall isn't the only one trying to sue critics of eminent domain abuse into silence, in blatant disregard of the First Amendment. Richard Swift and Wayne Wilkinson, public officials in Clarksville, Tennessee, sued critics of a redevelopment project who ran an ad in the local paper criticizing the project. That case has now been thrown out. "Accusing a public official or public figure of using their political influence to obtain a benefit for others or of themselves or favoring their supporters is not defamation," said the judge. "Debate on public issues shall be uninhibited, wide open and generally do include, vehement, caustic and unpleasant attacks on the character of government officials."

WSJ on Blight and Begging for Billionaires

The Wall Street Journal has an article here on the problematic "blight" loopholes in many so-called eminent domain "reform" bills. It also carries a clip from Begging for Billionaires, the new documentary on eminent domain abuse that is premiering at the Minneapolis Film Festival this weekend:

More on The Severance Case

Thanks to The Volokh Conspiracy and Reason for covering PLF's recent victory in the Severance case.

Pacific Legal Foundation Responds to Fifth Circuit Judge's Critique of PLF's Property Rights "Crusade"

The Pacific Legal Foundation issued the following comment today regarding Judge Weiner's dissenting opinion in Severance v. Patterson, which was decided yesterday by the Fifth Circuit Court of Appeals. PLF attorneys represented property owner Carol Severance:

Pacific Legal Foundation is proud to have devoted more than a quarter century to the protection of the fundamental human right to own private property. We have fought for that right in state and federal courts across this country, because we believe, as America's founding fathers did, that private property is the guardian of every other right. We do not regard our mission as "quixotic," or as an inevitable failure. On the contrary, at a time when the right of individuals to keep and enjoy the fruits of their labor is under attack like never before in this country, Pacific Legal Foundation is proud to stand as one of the leading champions of this fundamental constitutional right. And we believe that this nation is poised to reaffirm its commitment to the rights of all Americans to work for an honest living, to keep what they earn, and to pursue happiness for themselves and their families.  Some may regard this cause as futile or silly. We regard it as our duty as attorneys who have sworn to defend the Constitution of the United States—and as grateful inheritors of a legacy of liberty from previous generations of Americans.

More on the case at The Volokh Conspiracy.

Update: Ms. Severance herself has also published a comment at The Volokh Conspiracy.

Conference on Eminent Domain Abuse in California

by Timothy Sandefur

I'll be the lunchtime speaker at Saturday's conference on redevelopment abuse in California, sponsored by Municipal Officials for Redevelopment Reform. More information here.

Extortion Through Building Permits

The Pacific Legal Foundation's Lauren Wiggins and the Cato Institute's Ilya Shaprio have coauthored an article in the Washington Examiner about a Seattle-area case in which a couple who asked for a building permit were ordered to pay $50,000 to the city so that it could replace the pipes in its drainage system:

The city ignored the McClungs’ protests that their fees would go towards improving infrastructure not on their property, so their development would have no impact on the drainage system—let alone one worth $50,000.  The city did not care; the McClungs were a captive source of revenue. 

The McClungs sued the city under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from “taking” private property for public use without just compensation.  They argued that the city could not force them to pay impact fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system.

The Ninth Circuit—not the most property rights-friendly court, and a leading source of Supreme Court reversals—ruled in favor of Sumner.  The court first reasoned that money is not property: The development permit was conditioned on the payment of fees rather than some imposition on the land itself, so there could not be an unconstitutional taking of property.  Further, the court held, because the fees were imposed by an ordinance, the city did not have to show any evidence that the McClungs’ development had an individual, adverse impact on the drainage system.  That the city thought the pipes needed upgrading was justification enough.

This is unfortunately typical of efforts by local governments to abuse their permitting powers by twisting the arms of property owners. Although it is illegal under the Supreme Court's decision in Nollan v. California Coastal Commission more than twenty years ago, cities continue to do it and courts continue to find clever ways of allowing them to.

Read the whole article here.

Begging for Billionaires world premiere

The new documentary Begging for Billionaires is going to premeire at the Minneapolis-St. Paul International Film Festival on May 2. It's an excellent film focusing on the real meaning and impact of eminent domain abuse. Although the producers feature primarily the abuse of eminent domain in Missouri, the story they tell applies just as strongly to every other state. Here's a preview of the movie, which features Pacific Legal Foundation client Homer Tourkakis.

Baltimore to Abuse Eminent Domain to Keep Horse Race

by Timothy Sandefur

It's happened before: government using eminent domain to keep sports franchises from leaving town. Decades ago the city of Oakland, California, condemned the Oakland Raiders so that they wouldn't leave town. (As a friend of mine said recently, "The Raiders? Talk about blight!") The California Supreme Court allowed that condemnation to go forward.

Now comes word that the city of Baltimore, Maryland, is considering using eminent domain to seize control over the Preakness horse race, the owner of which is entering bankruptcy proceedings. Here's the money quote from Governor O'Malley: "It wouldn't be responsible for us to presume that there will be a private market solution to this."

Oh, yes. It would be irresponsible to allow consumers and property owners to freely bargain over what to do with the resources that belong to them. If that happened, they might come to a decision about whether to keep the Preakness or not based on what they can afford, and what else they might prefer to put their money into. Instead, Governor O'Malley's "responsible" officials should use force to take away the right of individuals and businesses to make their own economic decisions, and set up what bureaucrats think is the "right" outcome.

Here's more from our friend Gideon Kanner.

Montana Considers Regulatory Takings Compensation

The Montana legislature is considering a bill, SB402, which would require the government to compensate property owners when legislation makes their property valueless--in addition to when it actually seizes the property outright through eminent domain.

April 15 Anti-Tax Rallies

Our friends at the Howard Jarvis Taxpayers Association are sponsoring a tea party rally here in Sacramento April 15. sponspored by our friends at the Howard Jarvis Taxpayers Association. If you're in the area, come on by. If not, attend one in your state!

Declaring Independence

by Timothy Sandefur

I'll be on Ed Brayton's radio show Declaring Independence today, to discuss eminent domain and other constitutional issues.

Conservative Leadership on Eminent Domain Reform?

by Timothy Sandefur

Maggie Neff of the Jackson (Miss.) Free Press has an excellent comment on the decision by Mississippi Governor Haley Barbour to veto that state's eminent domain reform bill. She concludes,

Corporations need to make up their minds, as do the conservatives who so strongly oppose government regulation. The idea of free enterprise—which is so many anti-regulation folks’ argument against bailouts and stimulus plans—exists independently of government involvement. This extends to the exercise of eminent domain for what essentially boils down to private, corporate use. You can’t have it both ways. It seems that Barbour and other conservatives only favor government involvement when it benefits them. And that’s not fair to the people of Mississippi, or anywhere else, for that matter.

Read the rest at Gideon's Trumpet...

Atlantic Yards, Inch by Inch

Here's a very telling timeline on the Atlantic Yards project in New York.