First comes statewide tree ordinances and then come broad private property rights requirements in local governmental entity development plans.

Florida’s HB 207 (2017) would require:

• require the protection of private property rights in local government comprehensive development plans
• require a 4 point analysis for local government action:
  •  “Consideration of the impact to private property rights of all proposed development orders, plan amendments, ordinances, and other proposed government decisions.
  • Encouragement of economic development.
  • Use of alternative and innovative solutions to provide equal or better protection than the comprehensive plan.
  • Consideration of the degree of harm created by noncompliance with provisions of the comprehensive plan.” 
• require approval of the local plans by the state land planning agency

 The Ledger | New state regulations would affect local development 

In 1984 the Maryland Senate passed a bill allowing the state of Maryland to use eminent domain to acquire the Colts.

Why did Maryland want to buy the Colts? To prevent the franchise from leaving.

Did it work? No, before the Maryland House could pass the bill, the owner struck and deal and moved the team to Indianapolis. 

Columbus Dispatch | Michael Arace | Powerful are complicit in Crew move; it’s how the game is played

Which Texas official is for sprinklers in every residential property? Texas State Fire Marshal

What are the policy agruments of builders?

• Home owners should be able to choose
• Texas property values are strong because property remains affordable

What event can supporters point to?

• A fire that took the life of a former Colleyville, TX mayor and his grandson with a brain injury
• The mayor’s son believes his son and father would be alive if there had been sprinklers installed.

CBS DFW | I-Team: Homebuilders Push Texas Lawmakers To Block Fire Sprinkler Requirements

A Republican State Senator in Florida has filed S 574 (2018) to curb local fees on tree removal.

The arguments to support the legislation:

• Republican State Senator who filed the bill says “People’s private property rights should be supreme.”
• A developer:  Tried building affordable housing and ran up against a local tree ordinance. 

News 10 Tamapa Bay Sarasota | Proposed bill gives state control over tree laws

The Wisconsin Legislature rejected the U.S. Supreme Court ruling in Murr v. Wisconsin that permitted regulation on adjacent properties that limited the ability to sell the property.

In response to the June ruling, the Wisconsin Legislature in November passed Assembly Bill 479.

The goal of the bill: to make sure the regulatory schemes that exist when land woners buy property continue to exist. 

The bill is meant to “make sure that when people buy property, and they have expectations related to that property, that those expectations do not change over time,” says state Rep. Adam Jarchow (R–Balsam Lake), who sponsored the legislation. “And their rights are not taken away because of changing rules or regulations over time.”

 Reason | Wisconsin Lawmakers Pass Bill to Protect Property Rights, Reverse Supreme Court Decision

The state that prohibits eminent domain with grant funds: Indiana

The grant funds that prohibit eminent domain: State Community Development Block Grant Main Street Revitalization Program, which requires local matching of $150,000 for a total $600,000 grant

The local government project that will use the grant funds:  widen, replace and extend sidewalks in Georgetown, Indiana in connection with the River Hills Economic Development District and Regional Planning Commission.

News and Tribune | Georgetown looks to fix ‘crumbling’ sidewalks, retaining walls downtown

Texas Attorney General Ken Paxton lays out 2 ways McKinney’s proposed annexation plan isn’t lawful:

• the annexation notice violates the Texas Local Government Code and the Open Meetings Act
• the notice for the Aug. 28 mcKinney City Council meeting violates the Texas Local Government Code and the Open Meetings Act

How the notices violate the Open Meetings Act and Local Government Code:

• do not provide a description of the property the city plans to annex
• the council’s agenda item was unclear that the city intended to give city staff permission to annex specific properties, rather than providing guidance on annexation policies

Dallas Morning News | McKinney’s annexation plan may violate state law, attorney general says

The local government: Somerset County, NJ

The fee: $15 fee to file official documents with the County Recorder of Deeds. Documents include mortgages and deeds

The fees will be dedicated to which fund? The Demolition Fund to help the county remediate blight

WJAC | New fee in Somerset County will help fight blight

Property developers in Los Angeles California are charged a fee that subsidizes affordable housing.

How did this end up in court? Developers argued that the fees are tantamount to a taking of private property “for public use without just compensation.”

What happened in court? The U.S. Supreme Court on Monday, October 30, 2017, refused an appeal that upheld the affordable housing fee.

California State Courts found that the developer fees are:  a reasonable regulation of development.

Los Angeles Times | Supreme Court turns down property-rights challenge to developer fees in West Hollywood

The elected position: Ellis County, Texas County Judge

The candidate:  Current Ellis County Judge Carol Bush

The comment on property rights and high speed rail:  In listing achievements she notes under her leadership the county has “advocated for property owners against high-speed rail”

Waxahachie Daily Light | Ellis County Judge Carol Bush announces re-election campaign

What’s happening? Marietta Georgia argued before the Georgia Supreme Court that the 2006 Landowner Bill of Rights was optional.

What was the landowner’s argument? That the city had to follow the landowner bill of rights and provide a detailed appraisal prior to condemnation proceedings.

What did the Georgia Supreme Court say? 

• Yes, the landowner has to be given a detailed appraisal before condemnation
• If the landowner bill of rights were optional, the entire act would be impaired
  • Translation: an outcome allowing for an optional land owner bnill of rights woud fly in the face of the act 

Atlanta Journal Constitution | Georgia Supreme Court: Marietta violated Landowner’s Bill of Rights

CBS 46 | Local grocer wins battle against city of Marietta, continues to serve low-income community

Texas State Representative Ernest Bailes op-ed in the Houston Chronicle makes these points about a need to review eminent domain laws:

• Growth and development lead to eminnt domain challenges for land owners
• Need to ensure fairness in eminent domain statutes
• Fair compensation for land owners is very improtant to his district

Houston Chronicle Op-Ed | Bailes: Eminent domain statutes need review to ensure fairness

Kentucky is wiring the state for internet with the aptly names- KentuckyWired project.

To wire bluegrass country, the state  Kentucky Communications Network Authority (KCNA)is overseeing the public private investment.

What eminent domain rumors are swirling in the bluegrass? That homes are being taken away.

How did Kentuckywired respond:

• Simply not true.
• Most of the projec ti son public land
• 99% of landowners have agreed to easements that correspond with existing above ground cable, electric and phone lines.
• If eminent domain is used, no home will be taken. 

Lexington Herald Leader | Setting record straight on essential public-private investment 

Minneapolis, MN recently adopted short term rental ordinances which will:

• Require hosts & services to be licensed by the city
  • No license fee will be imposed if the owner is present during the rental period
  • Host license fee will be $5,000 for the big actors & $630 for less than 150 rental options
  • Home owner license fee will range from $46 to $350 depending on the property’s tier

What’s the rush on the ordinances? The 2018 Super Bowl will be in the Twin Cities

Fox 9 | Minneapolis approves two Airbnb regulation ordinances

A real estate broker in Michigan penned an op-ed supporting Michigan’s HB 4503  & SB 329 that prempt local ordiannces and home owner associagtion rules regarding short term rentals. 

The 2 bills provide for local control over noise, traffic, advertising and other conditions.

The real estate broker support for these bills:

• The bills are pro-private property rights
• The bills aren’t preemption, the bills are a starting point for local ordinances and rules
• Allowing for  short term rentals increases property values. Disallowing short term rentals devales property by 15%

Holland Michigan Sentinel | My Take: Support for short-term rental property rights

No, a MUD cannot use its funds to replace vandalized mailboxes in its jurisdiction. 

The Attorney General Opinion KP-0169 lays out which code sections that could be amended to include a MUD’s use of funds to repair or replace mailboxes:

• TEX. WATER CODE§ 54.012. 

  TEX. WATER CODE§ 54.201(b), §54.236 and §54.242 add to the laundry list of specific revenues uses for MUDs

In an op-ed focusing on the willfull flooding of homes by the Army Corps of Engineers, Texas Seantor Joan Huffman makes these points about just compensation:

• homeowners should be spared years of emotional and costly litigation, and Congress should secure just compensation for home owners
• the Army Corps of engineers actions constitute a taking that requires just compensation

Houston Chronicle | Huffman: Homeowners deserve ‘just compensation’

City: Portland Oregon

Current city ordinance that prohibits tiny houses on private property: A prohibition from people sleeping in vehicles.

What is Portland doing with the current prohibition while a specific ordinance is being crafted: Portland has suspended enforcement

What other policy issue is being tackled with tiny house policy? reduce homeless

What elements will the proposed tiny house ordinance contain? 

• the proposed policy will allow people up to park three tiny houses or RVs in parking lots of businesses, religious institutions and government buildings
• it will also allow one vehicle in the parking spot of private residences

Is there a model tiny house ordinance? Yes, Eugene, Oregon

Williamette Week | Portland Will Allow Overnight RV Camping and Tiny Homes on Private Property

A Virginia House of Delegates candidate has phrased her opposition to eminent domain as:

“protect individual property rights from eminent domain when it is to be used to benefit private corporations rather than the public.”

Augusta Free Press | Sierra Club endorses Michele Edwards in 20th District House race

The City: Sandy Springs, GA

How does this work in Georgia, where there is a separate eminent domain for the billboard? Georgia’s laws allow for billboard relocatation somewhere within 250 feet in lieu of an eminent domain reimbursement, if the city has a billboard relocation ordinance. 

What has the city offered?  A city ordinance that allows for billboard relocation if:

• eminent domain is used or there is a threat of eminent domain
• relocation within 250 feet, with up to 3 alternative sites reviewed by the city’s Community Development director
• “proposes a trade-off scheme to allow the targeted billboard and up to three others within the city to be “upgraded” into LED versions.”

Sandy Springs Reporter News | Billboard deal a bad sign, Sandy Springs residents and council say

Short Term Rental ordinance in Carmel Indiana are packaged as controlling “Animal House” rentals.

What would the ordinance do? Allow for zoning and regulations but not ban short term rentals.

Airbnb welcomes regulation: “”We’re very supportive of regulation. Of course, we don’t want to see our business banned,” says the Airbnb public policy director.

Herald Bulletin | Panel ponders ‘Animal House’ rentals  

Indiana legislature is working through how to craft a statewide framework for short term rentals.

The 4 issues that are tanatmount to leadership:

• input from property owners and from neeighboring property owners
• economic benefit to property owners and the economic benefits to local commerce
• preserve some local control
• allow exceptions for nuisance issues 

WFYI Indianapolis | On Airbnb Issue, Lawmakers Weigh Tricky Property Rights Balance

This bill from 2017 will be reintroduced in 2018: Indiana HB1133 (2017)

Entity that exercized its power of eminent domain? The City of Youngtown, Ohio

The statutory authority to take a residential property: The City of Youngstown has the authority to use eminent domain by a spot blight taking that allows an individual property to be taken via eminent domain. 

Was the property occuppied? No, it was abandoned by the 2nd previous owner, and purchased by Harbour Portfolio Advisors at a foreclosure sale

Which entity rehabilitated the property for resale? The Youngstown Neighborhood Development Corp

The Ohio Vindicator | YNDC opens doors for rehabilitated historic home

The City: Littleton, CO & Wheat Ridge, CO

The voter approval requirement: To access urban renewal tools like tax increment financing or eminent domain require urban renewal

What did a district court in Colorado do with Wheat Ridge’s Ordinance?  The Wheat Ridge ordinance, related to mandating that any tax-increment financing package over $2.5 million first get the consent of voters, is pre-empted by Colorado’s supremacy on the issue.

What’s the city’s argument: voter approval will cost time and money, and runs counter to what is established in state law regarding urban renewal.

What is the property rights/libertarian/tea party argument for the ordinance? 

• urban renewal has “outlived its usefulness” and it is not an economic tool
• taxpayers should have a say over how their tax dollars are used

Denver Post | Wheat Ridge will not challenge judge’s crackdown on urban renewal limits

The City: Oklahoma City, OK

The Entertainment Distict: Bricktown

The city’s goal with the property acquisition: make it easier for people to get into Bricktown

The land the city needs to get to this goal of easy access: A U-Haul Parking Lot

Is UHaul agreeable:  Yes to the project. No to the city offered compensation.

What was the business response: An open letter to the City that makes these points:

•  The city is asking us to rebuild and eat $4 Million in the cost of new permits and construction
• Uhaul is ” totally agreeable” to work with the city and resolve this situation for everyone
• The summary of the business argument given to the public: “”Essentially asking a business to spend its own money – let alone almost $4 million – to accommodate a city-requested project that would hurt business and inconvenience U-Haul customers is mindboggling. And wrong,”
• Uhaul started a change.org petition on the eminent domain filing by the city

KOKH | U-Haul of Bricktown fighting against OKC’s eminent domain case

News 9 KWTV | U-Haul Says City’s Offer For Parking Lot Is Short By Millions

KFOR | City leaders file for eminent domain for U-Haul property in downtown Oklahoma City

California Governor Jerry Brown vetoed a bill that would have funded acquisition of a beach access point. 

The reason for the veto? While the bill provided a means for beach access the bill precluded eminent domain.

Why does Governor Brown say the state needs Eminent Domain for this beach access issue?

• Having the option of eminent domain was the intent of the author
• The state should maintain the option of eminent domain to “public access to beaches and parks is a “core value to this state and must be protected.”

What does this mean for public beach access? Back to Courts and Administrative Tribunals.

San Jose Mercury News | Gov. Brown vetoes bill to fund purchase of Martins Beach path

California SB 42 (2017) 

No eminent domain for building the border wall according to H.R. 3943 by Congressmen O’Rourke (TX) and Gallego (AZ).

Arizona Public Media | Bill Seeks to Block Eminent Domain in Border-Wall Building

3 Candidates for mayor in Asheville North Carolina all support a ban on whole house/whole apartment short term rental bans. 

Asheville Citizen Times | Asheville election: Candidates on banning short-term rentals

How is eminent domain bringing together “gun toting conservatives” & “liberal envrionmentalists”? Eminent Domain use for pipelines

Tell me where this is happening…? In Virgina & North Carolina with opposition to the Atlantic Coast Pipeline, which is set to bring natural gas from West Virginia, Pennsylvania, and Ohio to electric power plants in Virginia and North Carolina

(it also happened in Keystone XL)

Duke University  | The Chronicle | They’ll be singing Kumbaya

State: North Dakota

What happened with this land to trigger this bill? The landowners say that the state took their oil and gas mineral rights from property acquired by the federal government for the construction of the Garrison Dam. The State Supreme Court agreed.

What was the Legislative fix? To except mineral rights from land transactions by the state as it relates to the dam project

The Bill: North Dakota SB 2134 (2017)

Bismark Tribune via Dickinson Press | Family ‘elated’ over ND Supreme Court ruling in mineral dispute

State Rep. Ernest Bailes says the Texas House needs to revisit these eminent domain issues:

• Bailes’ interim charge request for Land and Resource Management COmmittee: “examine the process by which private property is purchased or taken by entities with the power of eminent domain.”

Houston Chronicle | State Representative Ernest Bailes | House needs to reexamine eminent domain power

The Huntsville Item | State representative staying busy with county fair, interim charges

“State Rep. Larry Phillips, state Sen. Craig Estes and Texas Association of Business CEO Jeff Moseley spoke on issues ranging from property tax reform to imminent (sic) domain concerns.”

“Graham said there is a growing group who claim conservative beliefs but take an anti-business stance. As an example of this Moseley said there were 25 bills against eminent domain use in this latest session. Moseley said eminent domain can be used to help secure infrastructure and public improvements.

Moseley went on to say that many of these representatives do not hold traditional Republican values and instead are closer to libertarian in ideology. These representatives have expressed views against private-public partnerships and other governmental acts.”

Hutchins Herald Democrat | Area lawmakers give update at legislative luncheon

State Legislature: Pennsylvania

The eminent domain limitation bill: No eminent domain when a landlocked property is created with no access from a public road

The key bill text: ” a condemnor may not render the remaining parcel inaccessible to the condemnee by creating a landlocked property with no ingress or egress to or from a public road or highway”

PA HB 1773 (2017)

Wisconsin added provisions to the state budget that:

• require that all municipalities permit short term rentals
• require uniform regulations for short term rentals throughout Wisconsin
• permits cities “broad authority to regulate short-term rentals and the behavior of the occupants to ensure that they don’t interfere with the neighbors’ use and enjoyment of their property”

Green Bay Press Gazette | State budget restricts local government’s ability to regulate short-term rentals

In Tennessee, the Jefferson County Economic Development Oversight Committee​, a group of elected officials, recommended spending tens of millions of dollars in taxpayer money to begin development on an industrial megasite.

Word  spread that the Jefferson County Economic Development Oversight Committee was talking about using eminent domain to acquire land for the industrial megasite.

Open Records requests followed. A Tennessee appeals court ruled this week that open records laws applied because the Jefferson County Economic Development Oversight Committee​:

•  “performs a governmental function”
• “receives a substantial taxpayer funding”
• “is significantly involved and regulated by the Jefferson County Commission and Jefferson City and Dandridge city legislative bodies”

Cautionary Tale: Talk of eminent domain led to other legal issues.

Citizen Tribune | Appeals Court: Jefferson group subject to open record laws

An attorney colum in the Huntsville Item raises these concerns about the notice procedures for eminent domain in Texas:

• The party pursuing eminent domain could have their lawsuit filed
• A pre-selected  a group of hand picked special commissioners, whose duty it is to determine a value for the property
• And the property owner could have no idea that eminent domain is progressing.

The column points to condeming entities bewing pipelines, transmission lines or local governments.

Huntsville Item | A POWER LINE COMETH

A federal judge in Indiana has ruled that seizing cars with civil forfeiture is an unconstitutional violation of due process and the 5th and 14th amendments to the U.S. Constitution.

The court stressed the hardship of losing one’s car for months without a conviction.

Southern District of Indiana No. 1:16-cv-02980-JMS-DML 

Institute for Justice via Forbes | Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional

Court: Illinois Supreme Court

The Case: ILLINOIS LANDOWNERS ALLIANCE, NFP, et al., Appellees, v. ILLINOIS  COMMERCE COMMISSION et al., Appellants. 

The Ruling: to be able to receive the power of eminent domain in Illinois, a utility must own real property, and the transmission line companies at issue do not own real property in Illinois. 

Is there a way for the project to move forward: Yes, if the comapnies move forward as private companies without the power of eminent domain

KWQC | IL Supreme Court rules against Rock Island Clean Line

San Diego, California  City Council is considering a new short term rental ordinance that will:

• permit short term rentals of residential property but not of investment property
  • home owners could rent out up to 3 properties on a short-term basis,
• require a 3-night minimum stay would be required in San Diego’s coastal areas
• require a 3 night minimum stay in neighborhoods that have been designated as a historic district
• limit the total nuymber of days the residence can be rented to 90 days a year
• up to $5,000 could be assessed for noise and nuisance violations
•  $5 nightly rental fee which would create an affordable housing fund

San Diego Union Tribune | Airbnb debate heats up with new proposal permitting short-term rentals

If a tree overhangs into your neighbor’s property and causes damage, are you liable?

• Massachusetts Rule says no you are not liable.
• Hawaii Rule says yes you are liable.

More trees and property rights issues to ponder.

Harvard University | Property Law Developments | “Massachusetts rule” reaffirmed: no liability if an overhanging tree damages neighboring property

Illinois bcame the 25th state to pass civil asset forefeiture reform.

5 highlights from the bill:

• Agencies must report their forfeiture expenditures publicly & in a searchable format
• Rulemaking will ensure noncompliant agencies have their funds withheld;
• Require regular, independent audits for the State Asset Forfeiture Fund;
• New notice requirements; and
• Shift the burden of proof from the property owner onto the state

Illinois HB 303 (2017)

Institute for Justice | With Governor’s Signature, Illinois Now 25th State to Pass Civil Forfeiture Reform

Governor Scott Walker of Wisconsin vetoed eminent domain restrictions that:

• limited railroad use of eminent domain

Governor Walk let stand eminent domain restrictions that:

• prohit the use of eminent domain for recreational trails and walkways

LaCrosse Tribune | Gov. Scott Walker vetoes quarry regulation restriction, says policy deserves full debate

A billionaire in California bought property on Martin’s Beach. Martin’s is a popular surfing spot. The billionaire cut off public access to the beach.

Round and round went lawyers, state commissions on land use, and then came California’s Senate Bill 42 that allows California to use eminent domain to guarantee public access for the surfers and beach goers.

But, how is California going to pay for this public access its acquiring from the billionaire? Via donation.

Senate Bill 42 allows the state to access donations for the purpose of acquiring the beach access.

Can you imagine if a international conglomerate wanted land, had the state acquire it, and was able to pay the state, via donations, to take the land to support their private enterprise? 

California Senate Bill 42 (2017)

Palo Alto Daily Post | Bills regarding Martins Beach, Caltrain, other local topics passed by Legislature

Add another federal lawsuit to the list of whether pipelines consistite a public use that triggers eminent domain for private entities.

The new lawsuit is in U.S. District Court for the Western District of Virginia.

4 States have expereinced different reactions ont he same topic- pipelines & eminent domain:

• South Carolina and Georgia have restricted the use of eminent domain for oil pipelines
• Ohio and Iowa have ahad a fair share of legal challenges concerning property takings for pipelines.

E&E News | Burgeoning legal movement pits landowners against pipelines

The mayor of West Haven, CT lost his primary race to a city council person.

Some say the surprising loss was due to a redevelopment project that utilized eminent domain.

What factors concerning the project using eminent domain were deemed harmful to the mayor’s campaign?

• Eminent Domain use for a waterfront outlet mall
• That 4 years since property was acquired, there has been no progress, beyond boarded up property
• Demolition is scheduled for after the primary

Lessons:

Schedule demolition well before a primary.

Fox 61 Connecticut | Stalled outlet mall in West Haven may have cost Mayor Ed O’Brien

Rhode Island has a stadium to build for its Pawtucket Red Sox.

• the bill would allow for private development to sieze private land that is not blighted
• the bill would apply to property anywhere in Rhode Island
• the bill’s author says neither of these is the intent of the bill, and that the bill’s langauge is a concern that will be addressed

What did the Senate Finance Chair say in response to this hoopla?  “public opinion is not going to be the litmus test”

AP via Boston Herald Radio | Alarms raised over property rights changes in PawSox bill

Providence Journal | Construction union expected to rally before PawSox stadium hearing

Mesa, AZ wants to reduce blight. To do that, it created a redevelopment zones- East and West Redevelopment Areas.

Why redevelopment zones? The designations trigger access to tax breaks & other incentives to attract investment and infill development

What does Arizona law require to trigger blight tax incentives? That a redevelopment district must exhibit a predominance of blighted conditions

East Valley Tribune | Mesa creates redevelopment zones to reverse blight

Texas Attorney General Opinion, KP-1065, finds that affidavits of adverse possession should be filed by county clerks.

What standard does the affidavit need to meet? It must meet the requirements of Property Code section 12.001(a) : acknowledged, sworn to with a proper jurat, or proved according to law.

What does the affidavit not need to do? The affidavit is not proof that adverse possession has legally occured.

What is a data trespass law? While it sounds like data security, these laws create a crime against physically entering land to acquire data like pollution or animal cruetly.

Are data trespass laws constititional? Maybe not. A Federal Appeals court has found a Wyoming law likely violates the 1st Amendment.

Who is for these laws? Land owners, members of the Farm Bureau

Who is against these laws? People for the Ethical Treatment of Animals, Center for Food Safety, National Press Photographers Association

Casper Star Tribune | Denver court rules against Wyoming data trespass law

Los Angeles will be hosting the 2028 Olympics and the Clippers need a new stadium. What is a state to do? Pretend we’re working in a cartel cocaine processing room and sampling our own product? Yes, in a way, by expediting the permiting process to build stadiums more quickly.

How is the bill expediting the process?

• By exempting from full environmental review any “rail, bus, or transit project connected to the 2028 Olympics, along with expediting environmental challenges to construction of the Clippers arena in Inglewood.”
• Allowing for easier eminent domain for the Clippers stadium- except when it comes to residential property. Commerical property owners beware.

California Eminent Domain Report | New Bill Aims to Streamline LA Olympics Transit Projects & Clippers Arena

California SB 789 (2017)

The Real Deal Real Estate News | State bill would exempt projects tied to 2028 Olympics from CEQA

In a nod to the Denbury case, land owners across the east coast are suing FERC in federal court over whether pipelines have a public use that justifies eminent domain authority.

What to watch:

• Will the court set a new test for what qualifies for public use by a pipeline?
• Will this test be set forth by the court to apply to all private entities that have eminent domain authority?
• How far reaching will the federal court decision be?

Roanoake Times | Landowners ask federal court to intervene before FERC approves pipeline projects

Courthouse News | Pipeline Challengers Call for Eminent-Domain Overhaul

The Texas Supreme Court this week refused to take an appeal on the City of Austin billboard fee.

Lawyers, courts- their words are like teachers in a Peanuts cartoon. What does this mean?

• The Court of Appeals opinion declaring Austin’s billboard fees unconstitutional stands.
• Why is the fee unconstitutional?
  • The city can charge taxes up to 50% of what the state imposes.
  • What kind of billboard fee does the state have? None.
  • 1/2 x 0 = 0. Austin can impose a total fee of 0 under this rational.
• Is the billboard fee actually a fee or is it a tax? An earlier court decided that the fee was indeed a local tax, and here we are. 

Statesman | Texas Supreme Court declines to revive Austin’s billboard fee

What is this post-Harvey lawsuit about? The Harris County Flood Control District’s and City of Houston’s handling of “controlled release” of water from the county’s Addicks and Barker reservoirs on August 28, 2017

Who are the plaintiffs/class of plaintiffs? Residential property owners and commercial property owners

What’s the taking of land that is involved? The flooding led to a taking of properties by flooding.

What damages does the suit seek?

• Recovery for the repair costs to such properties
• Diminution in value of the properties
• Lost income or business income to the properties’ owners
• Any consequential loss of the flooding.

PR Newswire | Houston-Based Law Firm Files Class Action for Flooding Victims. Potts Law Firm Files Inverse Condemnation Case for All Persons and Businesses Impacted

Rural interests in Illinois are celebrating the Federal Transportation Safety Board’s denial of the Great Lakes Basin Rail.

Rural interests opposed the new stateline rail and say that eminent domain laws in Illinois should be changed in these 2 manners:

• It should be more rare for eminent domain to be used against farm land
• If eminent domain should be used against famr land it should be a higher standard.

State eminent domain laws that treat rural land differently…how many states would say yes to that?

Stateline | Stateliners Glad Great Lakes Basin Railroad Proposal Denied

Large portions of city of Highland, Illinois  is blighted, which translates to the city will create 3 business districts. 

The economic benefit of the 3 business districts will be:

• to provide a revenue source for funding for the new Public Safety Building
• to implement a new 1% sales tax in each of the three areas
• to bolster business by improving, roads, sidewalks, drainage

A federal judge in Indiana ruled that asset forefeiture of vehicles without criminal charges violates the constitution because asset forefeiture laws:

• failed to provide a timely hearing for the property owner to contest the seizure

Forbes | Contributor: Institute for Justice | Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional

Emails, notes, and text messages document collusion between a city and a developer according to attorneys for home owners.

The emails, notes, and text messages reveal that city inspectors were sent in to enforce city code, and in lieu of issuing fines, home owners were given the choice of selling their land to a developer.

The emails, notes and text messages go on to reveal that boarded up homes will drive down prices. The city can use eminent domain to acquire the homes and then the developer can step in and develop the area.

While this sounds like a movie or a good reminder of what not to do, attorneys for the Institute for Justice say they never expected to find the smoking gun.

WHAS11.com | New documents reveal collusion between city and private developer, attorneys say

In Jasper Alabama, the mayor and police chief are checking on available options when a black man asked city council if there is anything they can do.

The solutions: The Mayor is going to talk to the homeowner and the police chief is going to check to see if the federal government can do anything.

Issues that got thrown around in the mix- it looks bad (blight?), citizens don’t like the flag, and what about property enjoyment of neighbors?

This is legislation waiting to be written. Flag burning laws version 2.0.

Daily Mountain Eagle | City officials grapple with Confederate flags on private land

A blight study determined portions of “downtown” Muskogee, OKlahoma are blighted. The sstudy was requested by the city as a means to trigger economic development tools for redevelopment.

The local paper supports th fidning of blight in downtown.

Muskogee Phoenix | EDITORIALLY SPEAKING: ‘Blight’ study critical to downtown

A group of nuns in Pennsylvania own land that the Atlantic Sunrise Pipeline would like to occupy.

The nuns have taken the unusual step of suing the federal government claiming that the interstate natural gas pipeline violates their rights under the Religious Freedom Restoration Act.

Its a show down between the 5th Amendment (private property rights home) and the 1st amendment (protection of freedom of religious exercise).

Judge Awards Atlantic Sunrise Pipeline Builder Rights to Seize Last 5 Holdout Properties, Including Nun’s Land

2017- the year eminent domain went pop culture. Book reviewing Kelo, a film called Litle Pink House making the film festival circuit, and a play in Nebraska about eminent domain and a pipeline. 

Small town hokey play? No. It was a finalist in 2016’s prestigious Eugene O’Neill National Playwriting Competition

Omaha World Herald | Omahan’s play about pipeline battle will have its world premiere at Omaha Community Playhouse

• New Orleans. Digital scorecard streamlined the process post-Katrina.
• South Bend. Made the process more transparent. More information to the public sparked significant improvements in the city’s code enforcement process.
• Detroit. mobile application aptly called “Blexting,” allowed 150 residents and volunteers surveyed the entire city to compile the database and citywide property map
• Cinncinati. predictive modeling allows for early intervention by building inspectors

Government Technology | Battling Blight: Four Ways Cities Are Using Data to Address Vacant Properties

A federal court in Houston found Houston’s homeless ordinance against public camping unconstitutional.

The Court opinion includes: “”Enforcement of the city’s ban against the plaintiffs may, therefore, cause them irreparable harm by violating their Eighth Amendment right to be free from cruel and unusual punishment due to their status of ‘homelessness,'”

Texas Lawyer | Federal Judge Halts Houston’s Homeless Ordinance Banning Public Camping

Urban Farms in California could get a property tax cut if San Diego adopts its ordinance to reduce property taxes for urban farming lands.

San Diego Union Tribune | New incentive aims to spur more community gardens

No, nej, nyet! An appellate court in California decided 2 issues against a billionaire landwoner and neither of which is a taking:

•  requiring a California billionaire to be permitted to provide beach access to a long used surfer spot is not a taking.
  • Why isn’t this a taking? No permit has been applied for yet.
• an injunction that requires that the surfers have access to the beach is also not a taking.
  • Why isn’t this a taking? because in the injunction is temporary

Eminent Domain Report | California Supreme Court Petitioned to Resolve Split in Authority Regarding Inverse Condemnation Liability in Sewage Backup Cases

Missouri’s Western District Court of Appeals held that all counties along the Grain Belt Express, wind transmission line, must approve the project.

Appeal of this ruling has been declined by the state supreme court.

Missouri’s Public Service Commission relied on this ruling  to deny approval until all counties sign off on the plan & it is said to impact other transmission lines and Pipelines.

St. Louis Post Dispatch | Despite giving vocal support, state regulators again deny Grain Belt Express transmission line, citing court ruling

The Wisconsin County: Wood County, WI

What did Wood County Board of Supervisors do? Pass a resolution calling on the Legislature to prohibit  a specific energy company from having the power of eminent domain

The Activists behind it: 80 Feet is Enough, who argue that the existing 80 feet of pipeline easement is enough, more land shouldn’t be taken

The Legislative goal: to give property owners the value of their land back

Wisconsin Public Radio | Wood County Passes Resolution To Keep Oil Company From Seizing Land

The L.A. Clippers need a new stadium. New stadiums take land and can use eminent domain, except when the elected officials say no, hell, no…

Bonjour to Inglewood Mayor James T. Butts Jr. who said there would be no taking of:

• residential property; and
• no taking of church property.

L.A. Times | Possible Clippers arena has many Inglewood residents worried they may lose their homes or businesses

St. Paul, Minnesota is moving forward with new short term rental rules that would:

• limit the number of short term rental units in a home or apartment building to 1/2 or 4
• Cap on number of renters at 4 unrelated (AKA the party cap)
• City taxes must be collected
• The caps have some wiggle room for large buildings that have limited use permits and owner occuppied & present short term rentals

What sparked the short term rental rules? The 2018 Super Bowl is being hosted by the Twin Cities.

Twin Cities Pioneer Press | As more apartments convert to Airbnb, St. Paul considers short-term rental rules

Lancaster County Pennsylvania is experiencing an uptick in eminent domain actions due to the Atlantic Sunrise gas pipeline. 

The Lancaster News Press Editorial board editorial opposed to eminent domain for pipelines makes 3 points:

• The legal taking for corporate benefit is deeply unfair
• The eminent domain process is stacked against landowners
• Better yet, private companies using eminent domain isn’t only deeply unfair, it is UnAmerican.

Lancaster News Press | The use of eminent domain, while legal, seems eminently unfair in pipeline cases [opinion]

The business: Hicamp

It’s like AirBnB for camping.

Looking to expand into urban areas. How do local short term rental rules apply to camping in a city? or in a county?

Houston Chronicle | Hipcamp website lets private property owners rent out land for camping

4 Native American tribes signed an agreement opposing eminent domain–the ability to buy your land.

While Native American soveriegnty is murky, it got a boost this week via a ruling from the 10th Circuit.

Where this will be most interesting will be when eminent domain is sought over lands held by or held in trust by native american tribes. That’s anthing from the Keystonr XL protests to the Native American lands between the Permian Basin and the Mexico border.

Esquire | People Shouldn’t Buy the Right to Steal Your Land

Murphy v. Royal, Nos. 07-7068 & 15-7041 

NYC Department of Environmental Protection has recommended a plan to pay private proeprty owners to go green. 

How would this work?

• “ Restructuring water rates to shift costs to properties that generate relatively large amounts of runoff, and away from those that generate a relatively little.”
• Contractw ith a 3rd party administrator for a Green Grant Program that would provide financial incentives to property owners that go green.

NRDC | Paying Private Property Owners in NYC to “Go Green”

The concept: rent out your backyard swimming pool by the hour.

The reaction from policymakers: lots of legislative answers:

• how to insure the transaction
• how to assign liability and the enforceability of liability waivers

USA Today Network | ‘Airbnb for pools’ in Lakewood, Jackson faces legal, insurance questions

4 Trigger Phrases in Empower Texas'”Forced Annexation & Texans”:

• A House Committee Chaired by a Democrat
• ” tyranny of an annexation”
• taxpayer funded lobbyist
• A City of Lubbock committee voted to move annexation of rural lands forward over 100%resident opposition

Michigan’s Senate Bill 329 and House Bill 4503 prohibit local governments from creating anti-short term rental ordinances. 

How are these bills keeping short term rentals alive?

• The bills prohibit cities from restricting short-term rentals in residential districts
• The bills also do not allow cities to define a property renting for less than 28 days as a commercial use, a method some cities use to stop short term rentals.

News Review | Bills would prohibit bans on short-term rentals

Michigan Supreme Court found that a man backing out of his garage, onto his driveway & pulling back into his garage could be arrested for DWI.

Private Property Rights activists and dissenting justices call the ruling a disgrace to private property rights. 

Detroit Free Press | Finley: Man’s driveway is not his castle, court rules

Private Property Rights activists in West Virginia are protesting the financial institution funding a pipeline project. 

Represents a distinct change from protesting the pipeline company and affords more locations to protest.

The Record Delta | Group protests bank for funding pipeline

Kansas Supreme Court ruled in late July 2017 that a violation of a restrictive covenant by an entity with the power of eminent domain is a taking requiring compensation requiring just compensation.

Thats a lot of legal words, what does it mean? In this Kansas case it means that Kansas DOT acquired land that was restricted to single family homes via restricted covenant. When KSDOT builds a bridge or roadway on that land it creates a compensable damage to the subdivision that created the restrictive covenant.

Creegan v. Kansas, 391 P.3d 37 (Kan. 2017)

What does Governor Abbott literay techniques are used to describe forced annexation in his opinion piece, Forced Annexation is Un-Texan?

• forced annexation is piracy by government
• it is also tyranny of taxation without representation
• by jolly, liberty does not end at city limits

He goes on to write that Forced Annexation harms the property rights of those annexed by:

• debt liability. making newly annexed residents repsonsible for the city debt that they did not approve
• there needs to be a vote. property owners should have an “actionable outlet” 
• everyone else is doing it. Texas should join the masses and prevent forced annexation

Southeast Texas Record | Governor Greg Abbott: Forced Annexation Is Un-Texan

The Massachusettes Land Court has held that short term rental ordinance violates zoning rules that require single family residences. 

 Lytle v. Swiec, 2017 WL 2257702 (Mass. Land Ct. 2017)

Do you support “elected officials work[ing] to prevent and limit the use of eminent domain to take property rights from private landowners for use in oil and gas pipelines?”

That’s the question Whatcom County Council in Washington State wants to ask its residents in November.

KAFE 104.1 | Private property won’t get extra protection from eminent domain

TPPF position is that tree ordinances are:

• Money, Money, Money. Condemnations that require just compensation (see the A.G. Opinion) & they impact the investment and economic opportunities of land owners.
• Espresso sipping elitism. the arguments cities made to the A.G. when he reviewed the matter were supported by an east coast liberal law professor
• Free Lunch. Can’t let cities get away with getting trees for free. Tree ordinances allow cities to get conservation easements for free. 

TPPF | TWO VIEWS: TEXAS TREE ORDINANCES ARE EMINENT DOMAIN IN ALL BUT NAME

In 2016, Georgia, the state and not the country, placed a 1 year moratorium on pipeline use of eminent domain. 

The restrictions that replaced the moratorium include:

• requires greater disclosures from pipelines including evidence of financial responsibility
• all parties can appeal administrative decisions, previously only companies could appeal

Georgia’s Community Holdings Inc | New pipeline rules limit eminent domain

Wisconsin legislators are working to bolster the state’s Landowner Bill of Rights by:

• Grandfathering substandard lots to prevent a Murr v. Wis. like ruking again
• Prohibit the deemed merger of land
• Ensure property owners can repair and maintain existing structures
• Allow property owners to utilize inverse condemnation

The goals of the bill are prevent another Murr situation by ensuring that:

• people in situations such as the Murrs’ can sell or develop land adjacent to land that they already own
• prohibit local governments from considering lots merged with the owners’ consent

LaCrosse Tribune | Adam Jarchow and Tom Tiffany: Bill would protect property rights

AP | Wisconsin GOP moves to relax property regulations

City: New York City

Ordinances: Councilman Rafael Espinal & Brooklyn Borough President Eric Adams are calling for comprehensive urban agriculture plan, updated zoning and building codes, and an office of urban agriculture

Why is it necessary: Commerical Urban Farmers have a hard time getting permitted, being insured, and atracting investors. 

Is there more land to use for urban gardening in NYC? Yes,  14,000 acres of unused rooftop space that could feed millions

Wall Street Journal | Urban Farming Gets New York City Council Attention

Utah is working on legislation to make clear that charter schools can exercise eminent domain. Here’s what the bill author wants to accomplish:

• Statutorily state that Charter Schools are public schools. Public Schools have eminent domain authority so do charter schools.
• Clarify which charter school entity has eminent domain power. Is it:
  • state charter board?
  • state board of education?
  • the charter school itself?
• Clarify that charter schools do not need city approval to use eminent domain, because city approval complicates the process

What do opponents say?

• Charter schools themselves do not and should not have eminent domain authority
• Charter schools are operated by private entities
• There is no mechanism to stop a future property transfer by the private entity

Desert News Utah | Lawmakers seek recommendations on eminent domain policy for charter schools

KP-0155 sets forth the rational as to why tree ordinances are takings of private property. Here’s the 3 step argument:

• If a tree ordinance denies “a property owner all economically beneficial or productive use of land;” it is a taking that requires compensation.
• If a tree ordinances unreasonably intereferes with use and enjoyment of the property it can also be a taking that requires compensation. You get to this point by looking at 3 issues:
  • Is there significant economic impact to the property owner? 
  • Was the ordinance in place at the time the owner bought the land? It helps the landowner if it wasn’t
  • Is this a case of government intrusion on land and is that greater than the common good government uses to support the ordinance?

Wisconsin Legislature is looking at a Republican backed bill to limit game warden access to private lands.

Game Wardens would only be granted access to private land if there is reasonable suspicion that a violation had occurred.

Game Wardens are concerned that AB 411 prevents them from conducting compliance checks on more than 80% of the Wisconsin landscape.

Wisconsin Assembly Bill 411 (2017-2018 Legislature)

Milwaukee Journal Sentinel | Assembly Bill 411 would reduce warden authority on private land

A former aid to VP Cheney makes the case for annexation reform with these 3 arguments:

• The current system doesn’t support a person’s ability to choose where they live
  • If you shoose to live outside the city, you should be able to stay outside of the city
• Its undemocratic not to allow a vote by the owners who are being annexed
  • And this is unTexan
• Reform should apply for all Texans, not just Texans in big cities

Commentary: Why Texas should push back against involuntary annexations | Statesman

Commentary: No annexation without representation | Dallas Morning News 

Nuns gone wild. Nuns in Pennsylvania own a corn field that sits in the path of a pipeline. Nuns oppose the pipeline’s path through their property, and to combat it the nuns built a chapel.

The nuns, the Adorers of the Blood of Christ, believe that the earth is sacred.

Sets up a fight between the 1st amendmnt freedom of religion argument the nuns espouse and the 5th amendment takings provisions that permits eminent domain.The legal grudgematch begins July 17, 2017.

Upworthy | These nuns built a lovely little chapel. Right in the way of a pipeline. On purpose.

Virginia Supreme Court upheld its precondemnation survey access statute but ruled that landowners should have notice of specific dates and times of access.

Richmond Times Dispatch | Pipelines: Va. Supreme Court upholds gas survey law on entering private property, but requires specific notice to landowners

In Georgia, cities are arguing before the Georgia Supreme Court that the 2006 Land Owner Bill of Rights is not mandatory and there is no enforcement mechanism. 

Landowners in Marietta say that the Land Owners Bill of Rights is mandatory.

Background of the eminent domain dispute:

• City offers $85,000 to build a park.
• Court awards $225,000 for the only black grocery store in a historically black district. 
• Court said the city violated the Land Owner Bill of Rights by not acting transparently when it kept appraisals from the land owner.
• The City attorneys argue that since the Land Owner Bill of rights has no enforcement mechanism, a line of case law says the law isn’t mandatory but rather discretionary.

Atlanta Journal Constitution | Landowner’s Bill of Rights tested at Georgia Supreme Court

Federal drone legislation seeks to provide this broad framework:

•  secretary of transportation would develop “civil unmanned aircraft policy framework”
• harmonize time, place and manner from drone use

In addition to broad federal framework, it requires flexibility for local ordinances concerning:

• more control over protecting residents’ privacy & property rights
• create low-altitude speed limits
• establish local no-drone zones

Drone Innovation Act | Rep. Jason Lewis (R-MN)

Morning Consult | Lawmakers Look to Boost Local Control Over Drone Regulation

State: Louisiana

The eminent domain issue: A private dock entity, Violet Dock Port, had been operating in St. Bernardship parish. The Port Authority wanted to acquire its private competitor. Violet and the Port couldn’t agree on a price, so the Port Authority used eminent domain & began operating the Dock Port.

The Louisiana Constitution says: “no business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise.”

The Louisiana Supreme Court will have the final say. The lower courts have approved the use of eminent domain. NFIB and CATO point to the Lousiana Constitution business language limiting eminent domain in this instance in their pleadings before the LA Supreme Court.

CATO | Government Businesses Can’t Simply Take Over Property They’ve Been Unable to Buy

In Missouri, the Missouri Supreme Court upheld an appellate ruling that effectively stopped a transmission line plan.

How could the court do this?  In Missouri to build a transmission line, the state agency must have input from the counties. Why? Because state law says counties must determine whether a proposed project meets engineering & safety guidelines.

6 of the 8 counties said no to the transmission project. The project backers had asked the MO Supreme Court to not require the county approval.

What did property rights opponents say of the MO Supreme Court move? Incredible victory for property rights.

In Texas, this is a road map for counties opposed to high speed rail.

Columbia Daily Tribune | Missouri Supreme Court kills transmission line plan

The U.S. Supreme Court sided with Wisconsin in a property rights case last week. Property irghts activists are hanging their hats on the liberal majority in this opinion.

Murr’s property right sissue isn’t as clear cut as Kelo’s- should the house be taken. Murr owned multiple parcels of land and wanted to sell one parcel to build a cabin.

Standing in the way of the Murr’s cabin dream is a Wisconsin law that barred the sale because conservation rules treat the two lots as a single property that can’t be divided.

What did the court rely on to side with Wisconsin: that a land use regulation must be reasonable and Wisconsin was reasonably protecting the lands along the river. Plus, the land use rules existed before you bought the land- buyer beware.

PBS News Hour | Justices side with government in property rights case

Washington Post | Volokh Conspiracy | A loss for property rights in Murr v. Wisconsin [updated with a link to my response to Prof. Rick Hills]

Hays County Free Press quoting Colin Strother, of the Buda Planning and Zoning Commission chairperson, says if a tree ordinance passes “municipalities might sue the state for intrusion.”

Hays County Free Press | Proposed bill may uproot local tree ordinances

City: Atlanta

Ordinance: 1982 Ordinance required:

• registration of public art
• approvals by multiple layers of city government  for public art
• defined public art as  any artwork “able to be viewed from a public way.”

Court: City agreed to stop enforcement of a 1982 ordinance and pay $500 in restitution to the property owner and the mural artist. Attorney fees and costs are still being negotiated.

Atlanta Daily Report | City Agrees to Halt Enforcement of Ordinance That Threatened Artwork