State: Louisiana

The legislation to open navigable waters to anglers: HB 391 (LA | 2018)  to ” restore anglers’ rights to access public waters”

The opposition to opening navigable waters to anglers:

• wealthy private land owners
• energy companies

Supporters of opening navigable waters to anglers:

• Louisiana B.A.S.S. Nation
• Louisiana Sportsmen’s Coalition

The Louisiana House vote: 37-59

KALB| Powerful Opposition’ kills public access reform in Louisiana

Background: Nebraksa legislature passed a bill that would repeal a county’s ability to eradicate black-tailed prairie dogs on private property

Supporters of the Bill Call for Private Proeprty Rights: Repealing a county’s aility to eradicate the black-tailed prairie dog on private property is important because this law “infringes on property rights and harms native animals.”

The Veto is supported by this pro-private property rights statement: “fails to protect individual property rights from neighbors who don’t control prairie dogs on their property.”

Hastings Tribune | Governor vetoes Nebraska prairie dog management bill

The 3 pending eminent domain issues that could reshape land use in Houston, Texas:

• Hurricane Harvey.  The city’s of eminent domain to re-purchase flood plain areas
• High Speed Rail. Whether Central Texas Rail will be authorized to use eminent domain to obtian lands for its rail and stations.
• Roads. Always, roads. More people = new roads and expanded roads.

In Texas Attorney General Opinino Rquest, RQ-022-KP, we’re going to find out what property rights an RV has and what property rights a park owner has.

Get your arguments ready for the Attorney General.

Get your drafting pencils ready to write the bill to fix the opinion. 

Who requested the opinion: Charles Perry

The question for the Attorney General Opinion: whether recreational vehicle park guests-transient or temporary guests-are licensees or tenants

What arguments does the opinion request make?

• There is no consistency under TExas law onw hether RVs are treated as tenants or licnesees at RV parks
• Licensees are how hotel guests are treated and references the transient nature
• The TX Water Code refers  RVs as transient
• The TX Transportation Code doesn’t use the word “transient” but refers to “not permanent”

The stadium: FC Cincinnati

The opposition Op-Ed author: A former Cincinnati mayor and founder and CEO of the Center for Closing the Health Gap

The eminent domain problem:

• History is a problem. 
  •  In the 1950s 26,000, mostly minority residents, were displaced from eminent domain for an redevelopment project
  • When I-75 was expanded, the same displacement of minority residents occurred
• Relocation never occured. The 1950s eminent domain use did not bring relocation to fruition
• There was no redevelopment.  The same are remains economically repressed.

Cincinnati.com | Opinion: Why opposition to FC Cincinnati is about more than just a stadium

South Carolina Governor signed S1101 (2018) that extends the ban on eminent domain for private or publicly traded pipeline companies.

The ban on eminent domain was set to expire and has been extended to November 30, 2020.

Berkeley Independent | Lawmakers continue work on electric power reform

State: Georgia

The Republican Candidate for Governor: Hunter Hill, a former State Senator 

His proposed test for granting eminent domain authority to a private entity:   a net benefit to the taxpayers before eminent domain can be given to private entities

WABE | Meet Republican Gubernatorial Candidate Hunter Hill

The City: Cochella

The short term rental ordinance provisions that were chopped: inspections and a $60 licensing fee

The reasons for eliminating inspections and fees:

• The economic impact for the Cochella festival
• entrance barriers may stifle economic development and opportunities for city tourism revenue
• Cochella retained the need for property owners to obtain a business license for $100

Desert Sun | Coachella cuts short-term rental inspections and license fee days before festival

Texas Attorney General Opinion Request: RQ-0219-KP

Requestor: Lyle Larson

Question the Attorney General Office is to answer:  Does Chapter 75, Title 4 ofthe Civil Practice and Remedies Code apply to private property owners on whose property agro-tourism related private aircraft lands?

State: Wisconsin

Development Project: FoxConn Manufacturing Plant

What’s happened to the property in the FoxConn path?

• most property owners have not entered into negotiations
• blight designations were prescribed by the Mount Pleasant Community Development Authority

4 Requirements  for Blight Designation in Wisconsin

• property cannot be owner occuppied
• property cannot be occuppied by the owner spouse
• property cannot be occuppied by an individual related to the owner by blood, marriage, or adoption within the 4th degree of kinship
• crime rate in, on, or adjacent to the property is at least 3 times the crime rate in the remainder of the municipality in which the property is located.

Opponent Response:  If board members vote for blight, then they should resign

Wisconsin Gazette | Community group: Mt. Pleasant board members should resign if they vote to blight homeowners in Foxconn zone

Local Trend: Local Ride Share Ordinances

Legal Trend: In San Francisco, Financial Institutions are suing over the loan value of the city’s $250,000 taxi medallions which local ride share ordinances diminished the value of the medallions

Lege Trend: Leveling the playing field so that ride share and taxis are regulated equally

ABC 7 San Francisco | Credit union suing San Francisco over ‘worthless’ taxi medallions

Louisiana Legislature is considering HB 727 (2018) that will:

• pipelines and the equipment and structures
• penalize trespassers with up to 5 years in jail
• creates a new crime of critical damage to critical infrastructure
  • with up to 15 years jail time
  • a convicted person can also be charged the cost of prosecution

The Advocate | Environmentalists see proposed Louisiana law to protect pipelines and penalize protesters as overreach

Austin’s short term rental ordinance is being litigated. Texas Attorney General Paxton rational for getting involved in the lawsuit:

• Austin’s ordinance is ” “a gift to the hotel industry or Austin residents who seek reduced home prices.”
• He holds up Texans whose relatives housed troops during times of war to support a statewide histroy of short term rentals
• “By taking away its citizens’ property right to lease their homes as they see fit, the city has violated their constitutional rights,

Texas Attorney General | AG Paxton Urges Texas Appeals Court to Declare Austin’s Short-Term Rental Ordinance Unconstitutional

SE Texas Record | Paxton files brief with appeals court over Austin’s short-term rental policy

What issue are legal property rights centers looking at?  is there a public good, for eminent domain purposes,  when the public that benefits from the exported good is Europe or China?

What does this have to do with eminent domain? Pipelines, such as those that feed a LNG Export Center, are often uilt with the use of the power of eminent domain.

To exercize eminent domain constitutionally there must be a public use/public purpose for the land

How are property rights legal exeperts looking to intervene in exported oil and gas?   intervening in existing cases to aid property owners fighting eminent domain actions

Is this impacting oil and gas industry? Yes, a Texas pipeline that seeks to serve deregulated Mexican market, included a spur to a small Texas town that had never had natural gas service before to avoid the public purpose issue before the company utilized eminent domain

Houston Chronicle | Are pipeline land takings in the public interest if oil, gas headed overseas?

Refreshing our recollection, Idaho is streamling its civil and criminal trespass laws.

A theory in Idaho is that behind the bill are the Wilks brothers because:

• The brothers have bought 172,000 of Idaho forrest that was previously open and is now closed to hunters, fishermen, ATV riders
• There’s video of a Wilkes security guard having a run-in with a recreationalist
• interaction between Wilks’ lobbyists with the bills supporters 

A legisaltor told a Wilks family member that Idaho isn’t Texas, implying you cannot fence off land that was previously open to recreationalists.

Idaho Statesman | This was Texas billionaires’ role in revising Idaho trespass law

Tennessee’s bill that would make the State ‘s Historical Commission partial control over all historic property under control of local governments:  HB 2146

Concern of opponents:

•  HB 2146 would also give the TN Historical Commission new eminent domain authority
• The bill allows the stsate commission to threaten removal of officve for any local official that ignoed a state histroical commission decision

Supporters of the bill say:

• the bill is necessary because Memphis tried to remove two controversial statues

USA Today | Tennessee bill that aimed to protect controversial statues killed

Colorado Courts are grappling with “eminent domain creep.”

What’s eminent domain creep? Extending eminent domain through judicial opinion.

What’s the issue in Colorado? City A wants to buy land outside its city limits for open space and then annex the land into City A and offer developers tax incentives. City B opposes the land transaction and wants to use eminent domain to take the land for open space.

Denver Post | Eminent domain creep strikes again

Empower Texas is arguing for statewide regulations for food trucks because:

• Houston & Austin regulations, the 6th and 7th worst cities respectively, overburden these small businesses
  • Houston should eliminate “on-site bathrooms for food trucks on private property and the “electronic monitoring fee.”
• It relies on this report from the US Chamber of Commerce that says food trucks have an average of ” 45 separate government procedures over 37 days and pay over $28,000 in fees for permits, licenses, and compliance
• Texas cities should streamline inspections & permitting but abolish distance requirements 

Empower Texas | Food Truck Regulations in Houston And Austin Burden Budding Businesses

A fedceral appeals court will rule whether the power of eminent domain for a pipeline in Ohio. 

What do I need to know?

• Nexus is a partnership that is partly foreign owned
• While awaiting a court ruling, a local govenrment in the project’s path, approved a settlement on city lands, but the city legal counsel says the agreement is not elegibile for approval on a ballot
• The city’s agreement does not impact the landowner lawsuit over the question of eminent domain authority

Akron Beacon Journal | In Green, Nexus battle continues even as trees are cleared

Missouri’s House Bill 2401  (2018) limits the use of eminent domain by preventing eminent domain by :

• out of state entity
• for utility transmission lines that do not provide service to Missourians

Kirksville Daily Express | Missouri House committee seeks full K-12 funding

Background: Atlantic Coast Pipeline contractors seek access to property to begin tree-cutting, Landowners are asking a court to prevent the tree cutting.

What court? US District Court Judge Terence Boyle, a George HW Bush appointee, in the Eastern District of North Carolina

The court sides with the landowners and said: 

• landowners should have a reasonable opportunity to negotiate
• the pipeline can use eminent domain

What pre-requisities on eminent domain use are detailed by the court to protect landowners?

•  the pipeline must deposit an amount 3 times the appraised value of each parcel it plans to condemn with a federal district court clerk.

  • If the appraised value is less than $3,000, then ACP, LLC must deposit $9,003.

• The utilities also must obtain a bond twice the appraised value of the parcels

NC Policy Watch | BREAKING: Federal judge rules in favor of two landowners in Atlantic Coast Pipeline case

State: Idaho

Trespass Revision Bill that streamlines criminal, civil and parks & wildlife trespass statutes: HB 658 (2018) 

The Attorney General Opinion: Inquiry on HB 658 | Attorney General Lawrence Wasden & March 2018 Inquiry on HB 658 | Attorney General Lawrence Wasden

The 1st Amendment Issues Raised by the Idaho Attorney General: Whether the bill passes muster with the 9th Circuit’s overturning of Idaho’s Agricultural Gag law

Where: La Plata County Colorado

The land use resrictions the La Plata Liberty Coalition Opposes:

• County regulation of building height
• County regulation of exterior facade colors
• County regulations of screening structures and minimizing impacts on views
• County regulations providing visual breaks to any structures’ facade
• County regulations to avoid monotonous roof planes

3 County regulation topics that require just compensation:

• requiring “open vistas”
• preserving “scenic corridors”
• “aesthetics” 

OpEd La Plata Liberty Coalition | Durango Herald | Fossel; Getting it right! La Plata Liberty Coalition takes on the land-use code

First comes private property rights lawsuits, then comes legislative reponse.

Which local government? Indio, California

What did Indio, California do exactly? A lawfirm became the city’s official prosecutor for code enforcement cases. The lawfirm’s pitch was that it wouldn’t cost the city a dime. 

What’s the private property rights angle? The lawfirm’s deal with the city allows the lawfirm to bill a property owner its full legal fees in a prosecution which creates a personal financial stake in the cases prosecuted

What’s a legislative response?

• prohibit outsourcing enforcement
• prohibit billing for attorney fees when outsourcing enforcement

Institute for Justice | Running Afoul of the Law

online polling for eminent domain purports:

• 58% oppose eminent domain use
• 42% are yes and likely yes, but only if….

What qualifiers are offered for yes to eminent domain?

• never for private projects
• only for national emergencies
• only if compensation is drastically above fair market place
• fair compensation & a benefit for the community

isidewith | Eminent Domain Poll Results for Greg Abbott Voters 

The County: Madison County Texas

The high speed rail project: Texas Central Partners’ Dallas to Houston High Speed Rail

What action did Madison County take to block any high speed rail eminent domain use in Texas?

• county intends to maintain the roads for the use intended, and no other use

Madisonville Meteor | County takes stand on railway

Attorney fee standards in eminent domain statutes are either:

• reasonable attorney fees or costs
• attorney fees and costs “actually incurred” *

* Courts may find “Actually incurred” means invoiced and not actually paid.

The Nebraska Supreme Court in Transcanada was analyzing a “actually incurred” standard when it determined there was insufficent supporting evidence concerning the attorney fees.

TransCanada Keystone Pipeline, LP v. Nicholas Family Ltd. P’ship, No. S-17-116 (Mar. 9, 2018) via Nebraska: Eminent Domain Fee Statute Only Requires Reimbursement Of Fees “Actually Incurred” (So Unsupported Claim Is Right Out)

State: Wyoming

The bill: WY SF 107 (2018)

How would state law preempt local fence regulations?

• prohibit any county or town from passing a fence ordinance that violates current WY code

What’s an example of a blocked ordinance under this bill? If an ordinance required wildlife friendly fences, which is an issue in Teton County

Jackson Hole News Guide | Proposed change to fence law is dead

• Land: Wildlife Preserve land at the Border
  • Eminent Domain Use: Border Wall
  • ABC 10 | Texas wildlife refuge could become fierce battleground over Trump’s proposed border wall
• Land: Landowners around the Lost Pines Groundwater Conservation District
  • Property Rights Issue: Whether landwoners with no well in an aquifer can protest a permit
  • Statesman | Groundwater district appeals judge’s ruling for Bastrop landowners
• Property: Deer and deer breeder licenses
  • Property Rights Issue: What will the appellate courts do with the either the ruling or compensation for the TPWD rule that transfered privately owned deer to state property
  • Statesman | Texas deer breeders challenge ruling on state’s disease regulations
• Property: Land along the proposed Dallas-Houston high speed rail
  • Property Rights Issue 1: Whether the power of eminent domain is granted to the high speed rail entity
  • Property Rights Issue 2: If the high speed rail entity has the power of eminent domain, how does its power of eminent domain work when local governments have declared certain right of ways untouchable by local government action?

City: Southington, CT

Current Blight process: Inspector visits, most property owners cure the problem. If not, police visit and issue citations with fines. 

New blight ordinance proposal: 

• In lieu of fines and a police visit, the proposal is to send the unremediated blight directly to housing court. 
• Any complaints are limited to complaints in writing. 

Southington Record Journal | Southington council considers housing court for blight cases

The U.S. Supreme Court has agreed to hear Knick v. Township of Scott  which could overturn its ruling Williamson County Regional Planning Commission v. Hamilton Bank.

Why does this matter to state legislatures? As ABBA sings—-m oney, money, money.    Compensation standards and awards differ. 

Besides money, why should state and local officials care? Because vocal private property rights activists also want Williamson County overturned. 

Reason | Supreme Court Will Hear Important Property Rights Case

Breitbart |  Supreme Court Takes Two Cases that Could Scale Back Federal Power

State: Ohio

Eminent Domain Use to take: 0.338 acres of land for an overpass and bridge by the Ohio Turnpike and Infrastructure Commission

The Ohio Turnpike and Infrastructure Commission sues and the initial eminent domain award: $11,865, the last settlement offer

The landowners appealed the initial eminent domain award to a jury that awarded: $1.1 Million in damagfes reflecting the land owner’s appraiser’s appraisal

Cleveland Scene | Jury Awards Lorain Family $1 Million in Damages in Ohio Turnpike Eminent Domain Case

During discussion of a Navarro County, TX resolution designed to protect private property rights, the Economic Development director asked this question:

• whether an economic impact study on the communities to be affected by the railway?

The response: No, such an economic impact study had not been undertaken. 

A clarification: An economic impact study, which was released in October 2015, that showed every county touched by the project — rural and urban could receive significant, long-term tax revenue benefits from the project.

Mass Transit | TX: Commissioners Deny TCR Access — No County Roads Will Close

Colorado’s proposed HB-18 1122, 1123, and 1194 are said to be bad for private proeprty rights because the bills would:

• change conservation easements from private decisions to a government process
• takes the decision making away from the landowner and gives it to the legislature

Journal Advocate | Letter: Bills threaten landowners’ privacy

Resolution 102-2018 of the Navarro County Commissioners Court seeks to protect private property rights from a high speed rail project by:

• not to closing, nor relocating, any roads for Texas Central Railroad
• no railway company has the authority to close roads, and “TCR is not a railway company”
• the county will “decline to close ANY road for route for any railway or non-railway company.”

Mass Transit| TX: Commissioners Deny TCR Access — No County Roads Will Close

What’s happening? Refreshing our recollection- a billionaire beach front property owner near San Francisco is now required by law and state court rulings to open his private beach to surfers.

What are these surfers facing with the US Supreme Court? If the Court takes the case, the issue will be whether  government can command that parties open their private property to the public without compensation.

SF Gate | Martins Beach billionaire owner takes fight over public access to US Supreme Court

Wisconsin AB 770 will “fundamentally re-write” eminent domain compensation to landowners. Here’s how:

• including in compensation “reasonable project costs” like relocating & restarting  your business
• raise the maximum compensation amounts offered to both tenants  (up tp $80K) and property owners (Up to 100K)
• retain the maximum compensation caps only for citiesm towns and villages but not for private entities or state agencies

Opponents say:

• great cost to state government, utilities & other entities that routinely buy land to make room for public projects

Supporters, like the Wisconsin Realtor Association say:

• “They are just going to have to pay for what the property is actually worth.”

Shepherd Express | Is a Last-Minute Bill to Help Developers that’s Being Jammed through the Legislature Going to Create Future Problems?

The sole committee member voting against Idaho’s RS26114 | HB 536 asked for an opinion from the Idaho Attorney General on the constitutionality of increasing trespass penalties.

Did the Idaho Attorney General find the trespass increases constitutional? No

What constitutional issues did the Idaho Attorney General raise? “(The bill), as written, appears to be overly broad as it proscribes a great amount of lawful conduct and runs afoul of First Amendment and Fourteenth Amendment protections”

Refreshing our recollection on informed:intel, February 12, 2018

Increasing Trespass Penalties & Fees to Protect Property Rights. Read the Bill from the West. 

Idaho is considering RS26114 | HB 536 that will set trespass fees:

• $50 to $500
• increased fees for intentional trespass
• a 3rd offense would be a felony

The bill’s author, a rancher, said of current trespass laws:

• the laws are a patchwork
• the orange markings property owners are required to put up every 660 feet are onerous
• recreational trespass penalties are higher than criminal trespass penalties

  in addition to streamlining penaltiesalso requires:

• property owners to mark property at property boundaries, access points and streams.

AP | New Bill Would Tweak Idaho’s Trespassing Laws

Spokesman Review | Trespass 3 times and you’d face a felony under new Idaho proposal

Kansas is considering House Bill 2506 (2018) that excludes the following from blight designations:

• less than 15 month vacancy when there are unpaid taxes on the property
• if there are legal disputes over the property like probate or title issues its not eligible for blight
• if an owner confirms in writing that the issues will be fixed within 90 days
• requires that if a code violation triggers blight designation, then there has to be a health or safety risk
  • ex:  inadequate drainage would no longer trigger. a blight designation

Hays Post | From the Dome to Home: Waymaster newsletter

AirBnB announced it would utilize the following business policies and protocols to feret out sex traffickers utilizing short term rentals.

Or, in tech speak, they will “leveraging the innovation of the sharing economy” to:

• combine its existing risk analysis by
  • screening every host and guest
  •  trawling through photos to check for signs of exploitation
• utilizing “data and insight from Polaris, a charity which runs the US National Human Trafficking Hotline”

Telegraph | Airbnb promises to prevent ‘pop-up brothels’ at its rental properties

Utah’s HB 361 (2018) requires:

• that eminent domain laws, including legal process and procedure, apply to billboard relocation 
  • this engages city council members in the process instead of non-elected employees
  • providse stronger guidance for compensation
• if there is no agreement on sign price or relocation within 90 days, then the billboard comapny can relocate it. 
• blocked signs can be relocated and raised

Opponents say:

• Using eminent domain laws will add years to the process of relocation
• It allows for unilateral conversion to digital signs

Opponents, local governments, point to the following campaign contributions from supporters:

• $1,700 to House Majority Whip Francis Gibson, sponsor of the current bill
• a combined $79,630 to 75 of Utah’s 104 legislators
• gave the 3rd largest amount of any donor in UT

Salt Lake Tribune | Cities say big-donor billboard firms push sneaky bill to allow bigger, lighted displays without local OK

84% of Texas land base is farm, ranch or timber and Texas legislators and regulators should think of land as infrastructure like:

• Colorado that dedicates lottery revenue to private land conservation
• Ohio that allows municipal water utilities  to get lower interest rate on loans for plant upgrades in exchange for funding land protection
• Better funding of the  Texas Farm & Ranch Lands Conservation Program

Trib Talk |Blair Calvert Fitzsimmons|  Land is the state’s most critical infrastructure

South Dakota Legislature is considering HB 1184 (2018) that will move cow manure through new pipelines.

3 Legislative fixes to secure private proeprty rights have been suggested:

• Provide for compensation to a landowner for the use of private property based on a royalty system
• Require a legislative finding that “a private landowner’s property rights may be infringed in order to preserve the general public welfare (not private welfare.)”
• Require the eminent domain process make a “finding that property rights may be imposed upon to preserve the general public welfare.”

Green Sheet Farm Forum | Ganje: Dispelling the myth that South Dakota is a private property state

Refreshing your recollection, Lege Trend. New Eminent Domain for Animal Poop Pipelines. The bill does what?! 

Davis:  Eminent Domain should not used by private entities

Laningham:   No eminent domain for the bullet train, which is not a public benefit

Raney:  taking someone’s property should be a respectful negotiation that satisfies the landowner

Texeira: follow the law and properly compensate landowners, otherwise landwoners should get a good lawyer

Bryan Eagle | Rep. John Raney faces three GOP challengers for District 14 House seat; One Democrat running

What’s the background?

• Texas Parks and Wildlife Department promulgated rules to curtail chronic wasting disease
• Some deer breeders sued to stop the rules.
• Lower Court upheld the rules
• An appeal by deer breeders alleges property rights violations

What are the property rights claims in the appeal to the 3rd Court of Appeals? 

• There is a property interest in deer breeding
• There is a property interest in Texas Parks and Wildlife licenses
• The Texas rules refer to deer as “private property”

As private property, the rules amount to a taking of private property without just compensation.

Deer Breeders brief to the 3rd Court of Appeals

Statesman | Texas deer breeders challenge ruling on state’s disease regulations

Lawsuits in California allege that homes built before 1981 containing lead paint are a public nuisance.

A public nuisance in California can be remedied by taking the property by eminent domain. 

A public nuisance can also be remedied by criminal charges against the property owner, foreclosure, special taxes to resolve the nuisance, orders to vacate or demolish, loss of tax deductions,  mandatory disclosure on real estate transactions, and a listin gin a public data base.

Legislative solution:

•  Healthy Homes and Schools Act, a November 2018 ballot proposition
• Healthy Homes and Schools Act would preempt the court decision
• Healthy Homes and Schools Act provides $2 billion in funding

Sacramento Bee | The courts are risking California home values. Lead paint measure just aims for a fix

The City Ordinance: Miami Shores, FL prohibits front yard vegetable gardens and places a fine of 450/day for people with productive front yards

The State Preemption: SB 1776

SB 1776 does 3 things:

• Establishes a state interest in sustainable cultivation of fruits and vegetables
• Prohibits local regulation of vegetable gardens
• Existing local regulations are void and unenforceable

Miami Herald | Supreme Court settles food fight, leaves ban on front-yard veggie gardens intact

Idaho is considering RS26114 | HB 536 that will set trespass fees:

• $50 to $500
• increased fees for intentional trespass
• a 3rd offense would be a felony

The bill’s author, a rancher, said of current trespass laws:

• the laws are a patchwork
• the orange markings property owners are required to put up every 660 feet are onerous
• recreational trespass penalties are higher than criminal trespass penalties

  in addition to streamlining penaltiesalso requires:

• property owners to mark property at property boundaries, access points and streams.

AP | New Bill Would Tweak Idaho’s Trespassing Laws

Spokesman Review | Trespass 3 times and you’d face a felony under new Idaho proposal

The North Jersey editorial board opposed the taking of private property by a for-profit developer to build between 22 and 29 low- to moderate-income apartments in a mixed use retail and market rate housing development.

The opposition:

• Affordable housing is not a public use for eminent domain
• Its iffy if the properties taken are blighted
• handing private property, seized by emient domain, to a private developer doesn’t fly

North Jersey | Editorial: In Emerson, eminent domain or land grab?  

State: Virginia

The bill:  SB 308 allows you to drive while intoxicated if and only if:

• you are drunk driving on your own residential property
• you are drunk driving on the curtilage of your own residential property

Washington Post | Bill allowing drunken driving on private property passes

South Dakota’s House transportation Committee moved out HB 1184 (2018) that will move cow manure through new pipelines.

What’s the opposition to cow manure pipelines?

• opposition rooted in the new grant of eminent domain authority
• its expanding eminent domain to something that isn’t an utility & doens’t serve a public use

How would these poop pipelines work?

• pipelines of animal manure from one farmer
• would run through neighbors’ road ditches
• to bring fertilizer to farmed fields

What do supporters say?

• improves safety on rural roads
• reduces road wear onn rural roads
• 1 pork producer says he annually pumps 4.5 million gallons of animal waste, or enough to fill 700 semi trailers

Watertown Public Opinion | Piping livestock waste along highway ditches divides state legislators

Tennessee HB 2044 (2018) & Tennessee SB 2566 (2018) require annual reporting by the state Finance Commissioner concerning how much Tennesssee spends acquiring property via eminent domain. 

Tennessee is considering a bill that would grant the state eminent domain authority, retroactively, over conferederate statues.

The Properties Act would apply to statues on land that the state government previously but not currently owns.

WMC 5 | Proposed bill could grant state eminent domain over Confederate statues

California High Speed Rail, Phase 1, will  face an audit after these 3 things happened:

• Projected costs for phase 1 of California’s high speed rail have risen by $3 Billion
• A bipartisan group of legislators requested a formal audit
• Concerns that the project will need state subsidies

Due to the projected cost increase, the audit will make the following recommendations:

• how to accelerate the project’s timeline
• reduce costs and identify other sources of revenue
• best practices for approving contract cost changes, including eminent domain costs
• economic benefits of the project to communities

California Eminent Domain Project | HIGH-SPEED RAIL TO FACE AUDIT AFTER RISING COSTS

Kenosha, Wisconsin is re-working its billboard ordinance. 

Kenosha is ooking to balance the interests of business v. public good v. property rights. 

In this balancing act, Kenosha is looking at:

• 2015 US Supreme Court ruling that says signs can’t be regulated based on content
  • Reed v. Town of Gilbert, AZ
• Future sign ordinances will cover everythign from ground level signs to billoards
• How to craft a sign ordinance that avoids costly litigation

Kenosha News | Digital billboards shine a light on Kenosha’s sign ordinance

Who: Opponents to the Dakota Access Pipeline from Iowa + Indigenous Iowans and others from across the Midwest

Why: to protest the four-state pipeline eminent domain

Where: Protesting eminent domain at the Super Bowl in Minneapolis at the US Bank Stadium.  U.S. Bank has a banking relationship with the pipeline company

Des Moines Register  | Iowa environmentalists heading to Super Bowl to protest Dakota Access pipeline

A Louisiana Court ruled that  Public Records Laws Not Applicable To Private Pipeline Company.

Arguments for Open Records: If the entity performs a governmental role, like taking property, it should be subject to open records

The Court’s response— there is no basis for applying open records requirements in this matter.

Red River Radio | Judge Rules Public Records Laws Not Applicable To Private Pipeline Company

The Port had the power to use eminent domain on a 4:3 vote.

• This issue will be re-litigated during a re-hearing.
• The re-hearing will focus on whether if the condemning entity turns the property over to a private company to operate, is the eminent domain use justified?

As for compensation, the Port that was acquired didn’t receive just compensation.

The case:  St. Bernard Port, Harbor v. Violet Dock Port, Inc.

Owners Counsel | Louisiana Supreme Court Decides St. Bernard Port, Harbor v. Violet Dock Port, Inc.

The New Orleans Advocate | St. Bernard’s seizure of private port didn’t violate law, but price was too low, high court says

Ohio Legislature is considering HB 482 to expedite blight remediation.

HB 482 will:

• Cut in 1/2 the amount of time a property owner has to remediate blight from 60 days to 30 days
• Cuts in 1/2 the amount of time to hold a hearing on the property from 28 days to 14 days
• Cuts in 1/2 the amount of time a property owner has to remediate blight if there is an injunction from 30 days to 14 days.
• The evidentiary standard to show blight: preponderance of the evidence

Previous version included a “Local Blight and Nuisance Abatement Fund” that would allow local municipalities to boost enforcement and pay for cleanups.

Columbus Dispatch | House bill targets owners of blighted properties

What’s the issue: CATO, and libertarian groups, believe that there are private proeprty rights in the internet 

What’s the rational for private property rights on the internet? the Communications Decency Act Section 230 “helps tech companies act non-neutrally toward user generated content on their platforms”

CATO highlights Texas Senator Ted Cruz’s opposition to finding private property rights on the internet.

CATO Institute | Why Is Sen. Ted Cruz so Opposed to Private Property Rights on the Internet?

Hawaii Supreme Court has found a private property right in clean air. 

What language did the Hawaii Supreme Court rely on to get here?

• Article XI, Section 9 of Hawaii Constitution provides for “the right to clean and healthful environment, as defined by laws relating to environmentl quality”
• Article 1, Section 5 of the Hawaii Constitution provides for “no person shall be deprived of life, liberty or property without due process of law.”

In re Application of MAUI ELECTRIC COMPANY, LIMITED,
For Approval of the Amended and Restated Power Purchase Agreement
             With Hawaiian Commercial & Sugar Company.

Georgia Legislature is considering HB 679  which would prohibit annexation effective dates cannot be 90 days before a municipal election.  

Indiana is considering SB 268 would give counties permission to veto annexation if 2 of 3 county commissioners vote to block the annexation.

There’s a time limit on this veto power: 90 days.

If a private entity takes on a state function like eminent domain then…Activists in Lousiana, who are suing over the Bayou Bridge, want the energy companies that use eminent domain to be subject to the same rules the state is subject to, like open records laws.

Is a pipeline a public use? According to the activists/landowners a hospital is a public good, while a pipeline is described as:

• “We’re not talking about something that’s for the public good. The only people that are going to get rich are these rich oil execs that don’t live here.”

WKRF 89.3 | Another Bayou Bridge Lawsuit Filed

The Candidate: Ohio Governor candidate Dennis Kucinich (D)

The eminent domain use: The City of Massillon, Ohio should use eminent domain to keep the Affinity Medical Center open

The public uses: a hospital & 800 jobs

Becker’s Hospital Review | Dennis Kucinich: Eminent domain should be used to prevent Ohio hospital closure

The Patch | One Town In Northeast Ohio Could Lose 800 Jobs In March

Background: IN 2011 Florida passed a law provided for local regulation, but not for the duration or frequency of short term rentals. 

Local Cities Say No thank you:  After 2011, Miami and Miami Beach passed their own restrictions, with penalties of $20,000

Welcome to 2018. SB 1400 vs.  HB 773  at the Florida Legislature:

• SB 1400 will:
  • explicit state preemption for permitting & inspecting vacation rentals
  • requires property owners to obtain licenses
  • sets fines and penalties at $1,000
• HB 773 will: 
  • continue local regulation
  • provides for no state preemption
  • requires equal application of short term rental ordinances to all residential properties

Orlando Sentinel | Vacation rental supporters rally at Capitol

Nebraska’s LB 1017  (2018) would require:

• pipelines to prove by preponderance of the evidence that the pipeline is a public use & that just compensation was paid
• include in the calculation of just compensation the economic benefit to the private company
• Construction limitations including:
  • $100 Million performance bonds
  • A filed decommissioning plan for piepline removal at the end of the pipeline’s use

Lincoln Journal Star | Bob Krist bill would tighten requirements for pipeline construction in Nebraska

Virginia Legislature is considering SB 809  that reframes lost profit for eminent domain property valuations by:

• applying lost profits to businesses & farms
• applies to a partial taking of land
• the valuation calculation begins once the property owner is prevented from using all of his land or any property rights are taken.

 In true Libertarian fashion, New Hampshire Legislature is considering House Bill 1226 (2018) that exempts from drought restrictions private wells.

What supporters say:

• HB 1226 is about basic Property Rights
• Riparian rights are a long standing legal right and tradition
• If opponents want to stop private wells from use during drought, then private wells should be reimbursed for the property rights loss

What opponents say:

• private wells still draw down water reserves and there is a greater utilitarian purpose to consider 

Concord Monitor | Homes with private wells would be exempt from drought restrictions

Where: New Orleans, LA

The spot zoning: an ordinance that allows a certain property to pursue unrestricted short-term rentals

What’s the benefit of the spot zoning for short term rentals: Residential property in New Orleans has a 90 day maximum for short term rentals, the spot zoning removes this restriction

The football player:  owns the property subject to the spot zoning

How does eminent domain factor into New Orleans City Council? A city council member likened the zoning issue to taking value from the property owner

The Times Picayune | Spot zoning turns into a sore spot for New Orleans City Council

Where: New London, CT home to the Kelo v. City of New London of U.S. Supreme Court fame

The ordinance: Section 302.4 of the New London Property Maintenance Code

What garden items are prohibited by Section 302.4?

• “all grasses, annual plants and vegetation,” that are more than 10 inches high.
• except for trees, shrubs, and “cultivated flowers and gardens” 

The offending yard:  Has a “maintained” and “contained” bamboo garden for more than 30 years, longer than the ordinance has been in existence

The penalty: $13,500 in fees and civil penalties with talk of blight statutes being triggered

Reason | New London, Connecticut, Prosecutes Local Artist for Bamboo It Deems a Blight

Residents Against Invasion of Land by Eminent Domain formed to combat a $2.8 Billion freight rail plan. Here’s what you need to know:

• The Surface Transportation Board rejected the rail plan, according to RAILED due to the projects lack of funding
• What surprised RAILED the most: that a swath of residents didn’t care about the freight rail, didn’t think the rail would affect them, and had no idea of long term impact on safety

Chicago Tribune | Funding, opposition derail $2B freight rail plan

In 2017, Maryland enacted new eminent domain authority for the building of power lines. 

Recent opposition to a high voltage power line has legislators looking to reign in eminent domain authority for high voltage power lines when porjects are sanctioned by the Maryland Public Service Commission.

The Baltimore Sun | Harford legislators get down to business as 2018 General Assembly session begins

Where:  Colorado

What form is this compensation for private property owners taking? An initiative proposal

Why compensate private property becuse of oil and gas drilling set backs? The Colorado Farm Bureau proposed the initiative because drilling setbacks are causing farmrs to lose out on mineral interst royalties.

The Fence Post | Colorado Farm Bureau proposes initiative to protect private property rights

State: Massachusetts

The legislation: The Comprehensive Adaptation Management Plan which coordinates the planning of projects state authorities led by the governor’s secretaries of Energy and Environmental Affairs, and Public Safety and Security.

The acquisition of property: Only from willing sellers

Cape Cod Times | Author of legislation clarifies its intent

Massachusetts S 472 (2018)

Utah is considering HB62 which looks to re-define property valuation for eminent domain by requiring the value include:

• any impact from the public project for which the property was taken
• anything a prudent purchaser would consider in determining the market value of the property after the taking
• access to the property that exists after the taking
• and the value shall not include in the property value will be the property tax assessment 

Libertas Utah | HB 62: Helping Ensure Just Compensation for Eminent Domain Takings

Add Monadnock, NH to the lsit of towns opposing eminent domain for pipelines in its area.

How did Monadnock get started on the no eminent domain resolution bandwagon? 2 years ago the town officially voted to oppose a natural gas pipeline

What action is it taking in 2018?  a petition warrant article that opposes pipelines and specifically opposes the use of eminent domain for pipelines

Monadnock, NH Ledger Transcript | Town may ban pipeline forever 

Where:  Arlington, VA

What is the local ordinance? County government sought to require two signatures for a landowner to have a car on their property towed.

Which groups aligned against the local ordiannce to help landowners? The Arlington Chamber of Commerce sought to secure private property rights by ensuring effective parking management

What did the state law do? Retained the property owners ability to remive improperly parked cars on their private property & restricted local regulation of towing

Inside NOVA | Arlington Chamber aims to retain gains it made on towing

Cecil Bell believes eminent domain reform is a “constituent-driven dialogue”

His concern about eminent domain: ” got to do a better job as a state in trying to figure out how to balance between the intended very limited use of eminent domain and processes like that and where we find it being used today”

Let’s diagram State Representative Bell’s eminent domain concern:

• The big bad: how eminent domain is being used today is not balanced & the eminent domain scales are tipped against constituents
• The good use of eminent domain: very limited
• Where the legislative fixes appear: what entities can use eminent domain + the process of how eminent domain takings happen

Houston Chronicle | Villager Q & A: Local state lawmaker Cecil Bell Jr. 

In Iowa if a landowner challenges the value of a property taken by eminent domain, the land owner can have his or her attorney fees covered if he or she shows in court that their property was undervalued by at least  $1.

Bristol Herald Courier | Sioux City, property owner battle over price for trail land

To determine just compensation for property taken by eminent domain in South Carolina, an appraiser determines the highest and best use of the land by:

Considering a “property’s highest and best use must be physically possible, legally permissible, financially feasible, and maximally profitable.”

Highest and best use applies even if the landowner has no intention of using his or her property in that manner.

Lexology | How “Highest and Best Use” Can Substantially Impact Just Compensation for Landowners

Ohio lawyers are proposing an enforcement mechanism for bad eminent domain actors.

Why does OH need enforcement for coercive eminent domain? The law has no enforcement mechanism for the prohibition against coercive acts.

What’s the propsed enforcement for bad actors? 

• Clear cause of action that clearly provide landowners with a private cause of action against condemnors who use coercive tactics or conduct in land acquisitions
• Monetary penalties
• Attorney Fees Bad actors should be liable for the landowner’s attorney’s fees and expenses

Lexology | Ohio’s Eminent Domain Law is in Need of Reform to Protect Ohio’s Farmers 

The elected official: U.S. Sen. Jeff Merkley (D-WA)

The project: Pacific Connector Gas Pipeline

What are the facts aroudn the pipeline?

• a private foreign company may use eminent domain
• to take American citizens’ private properties
• to export Canadian gas to Asia

Oregon Live | Op-Ed by Landowners | Blocking eminent domain for private gain: Guest opinion

The City: Adrian Michigan

The proposal: “permit[s] commercial medical marijuana facilities, including growers, processors, provisioning centers, safety compliance facilities and secure transporters”

The 4 reasons commisioners supported marijuana facilities: 

• Jobs that pay $15-20/hour
• Funds for blight elimination
• Economic development
• Compassion for medical marijuana patients

LenConnect | Adrian OKs medical marijuana facilities

Ecotourism: Wilderness operators in Canada are arguing for their private property rights for ecotourism.

Economic Impact: As the rights of ecotourism are challenged, investors are pulling their funds out of the Candaian wilderness.

Prince George Citizen | Wilderness operators demand property rights

What’s the land use proposal causing the gaffaw? Napa County may have a June 5 ballot initiative that would ban personal-use heliports on rural Napa County properties.

What are the private property rights arguments? Limiting the use of property infringes on private property rights

What is the current status of personal heliports in Greater Napa? allows personal-use airports and heliports with a county use permit

Napa Valley Register | Napa County private heliport measure supporters turn in signatures 

The Professional Sports Team: Crew SC, an MLS team in Columbus OH

What is the basis for the eminent domain threat by OH’s Attorney General?  “Art Modell Law” which Ohio passed after the Cleveland Browns moved to Baltimore

What does the Art Modell Law require? A professional sports team that receives taxpayer funds cannot move without approval of the city or without offering the team for sale

Fox 28 | Ohio Attorney General sends letter to Crew SC owner threatening to sue 

Rhode Island wants to build a new PawSox stadium.

To get to a new stadium, legislators filed S-0990 & S-0989, that included funding requirements, new eminent domain provisions, and reworking the definition of blight.

Public input on the eminent domain provisions & transparency concerns raised by the State Republican Chair, led to the removal of new eminent domain and blight provisions. 

RINPR | Revised PawSox Bill Steers More Revenue To Pawtucket; Outlook In RI House Uncertain

Fox Business | Senate committee revises bill for proposed PawSox stadium

Wilmington, DE Mayor Mike Purzcki proposed to eliminate blight by:

• imposing liens 
• forcing sheriff sales of blighted property

The opposition killed it by:

• raising concerns that a person’s home will be taken
• raising concerns that property would be taken for a minor violation

What solution did opponents want? Protections in ordinance that limit the ability to take owner occuppied homes and to prohibit takings for minor violations.

Wilmington News Journal | Wilmington mayor’s anti-blight effort hits roadblock

The city: Nashville

The local enforcement mechanisms against home based businesses in Nashville: Nashville has a “home occupation law” that bans ” home-based businesses means local musicians, hairstylists and other aspiring entrepreneurs face steep fines and potential imprisonment if any customers physically come to their homes to do business.”

The Institute for Justice lawsuit hook:  Nashville is preventing in home music recording studios. Music City is opposed to music. 

The property rights arguments agains thte home occupation law:

• home-business law is dishonest
•  residential zoning laws cannot be used to regulate a home-based business that can’t be seen or heard from the street

Institute for Justice | Nashville Home-Based Business

The city:  Charlestown Indiana

The code enforcement fines: Code enforcement violations began in the summer of 2016, after city council adopted fines that cannot be waived

The alleged goal of city leaders: revitalization

The court’s response to the code fines: 

• the fines run counter to the city code that allows for fixing violations and the waiver of fines
• city violated equal protection laws by choosing not to impose fines on the LLC

Indiana Lawyer | Special judge halts ‘irrational’ Charlestown code enforcement

Charlestown Pleasant Ridge Neighborhood Association Corporation, et al. v. City of Charlestown, Indiana, Charlestown Board of Public Works and Safety, 10C02-1701-CT-010,

The public use:To build a rail spur

The land: 37 acres of Indiana farm land

The condemining entity and its compensation offer: St. Joseph’s County offered $344,000

The value awarded by the panel of 3 court appointed appraisers: $1.4 million.

Houston Chronicle | Land sought by Indiana county valued at 4 times county offer

The pipeline location:  Virginia

The pipeline campaign background on messaging tactics on eminent domain:

• eminent domain is “the fight to come”
• politicians have  “no electoral reward for political courage.”
• must work harder after the election of President Trump as the opposition is more aggressive

What was the pipeline response when the campaign materials were inadvertently placed on its website:

•  it is how it must conduct business at a time when everything is politicized
• The “historically non-political processes [are] now political,”

What tactics should pipelines employ to combat eminent domain opponents:

• use social media. Engineers and lawyers are good, but hire a “hipster” to help your social media
• use industry grassroots. To grow supporter numbers reach for industry grass roots supporters
• be vigilent. “The opponents are not kind of pulling up their stakes.”

The Virginian Pilot | Virginia’s most powerful company runs “campaign to elect a pipeline”

The 10th Circuit said NO, a utility cannot condemn tribal lands.

The utilities say- the 10th Circuit ruling “threatens the national power grid by effectively blocking Congress’ authorization of condemnation of allotted tribal lands”

Eminent Domain and Real Estate Evaluation | Fox Rothschild | SCOTUS Asked To Hear Tribal Land Condemnation Case

Wisconsin Counties are passing resolutions to support legislation that would prohibit eminent domain for private gain.

Daily Jefferson County Union | Eminent domain reform reviewed

Wisconsin Governor Scott Walker signed Assembly Bill 480 that does the following:

• bars assessors from increasing the assessment of a property solely because the owner refused to let them inside
• gives owners who did not let assessors into their properties the ability to challenge their assessments

Wisconsin Assembly Bill 480  (2017)

Milwaukee Journal Sentinel | Wisconsin Gov. Scott Walker signs bill to expand property rights

Illinois House Bill 4150  accomplishes two goals:

• limits the use of eminent domain to only public uses
• explicitly removes railroads from public use

If a private entity is involved in the project the following 6 steps must occur:

•  the condemning authority must prove by a preponderance of 
  the evidence that:
  • (i) the acquisition of the property is necessary for a public purpose;
  • (ii) the acquired property will be owned by the condemning authority or another governmental entity; and
  • (iii) the acquired property will be controlled by a private party that operates a business or facility related to the condemning authority’s operation of a:
    • university
    •  medical district or hospital
    • exposition or convention center
    • mass transportation facility, or airport, including
    • but not limited to:
      •  a medical clinic
      •  research and development center
      • food or commercial concession facility
      • social service facility, maintenance or storage facility, cargo facility,
        rental car facility, bus facility, taxi facility, flight kitchen, fixed based operation, parking facility, refueling facility, water supply facility, and railroad tracks and
        stations.​

        The Vedette | Rep. Parkhurst Files Legislation to Strengthen Private Property Rights

Why are cities suing?  The cap on the amount cities may collect per network node violates the state constitution & is only a fraction of what cities have been getting from private companies

Does a right of way, like a network node right of way,  have to be compensated? Yes. 

What do supporters of the law say?  “helps consumers and small businesses by improving the quality of the networks where they live, work and play.”

What do non-city opponents of the law say? The cap cuts out private property owners that might otherwise should be compensated.

What 2019 legislative issue does this invoke? Removal of the cap

Huntsville Item | Cities sue over cellular right-of-way fee caps 

PA Act 152 (2016) allows local governmental entities to implement a fee on the recording of deeds and mortgages in certain counties. 

The fee will be dedicated to the local governmental entity’s county demolition funds.

The fee cap: $15

Requirements on local governmental entities that create a demolition fund:

• Annual report to the Department of Community and Economic Development detailing:
  • ​how the revenue will be spent
  • how many properties will likely be demolished
  • any other information that would be relevant to the demolition program

York Dispatch | County considering $15 deed recording fee to fund demolition of blighted properties

Background: In New Hampshire the Legislature specifically denied eminent domain authority to the Northern Pass transmission line.

The Northern Pass Line was built by: obtaining lease with a sister company operating an existing transmission corridor that slices north-to-south throughNew Hampshire

InDepth New Hampshire | A Northern Pass Ratepayer Victory