Land Use & Property Rights

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

A Republican City Council candidate in Amherst, NY is running with the goal of using eminent domain to take a country club by eminent domain to build sports courts for the community.

Populist Eminent Domain. 

Buffalo News | Amherst businessman launches bid for Town Board

Belton, Texas City Manager says an annexation bull like 85R’s SB 715 would:

• end annexation
• if voluntary annexation were permitted it would:
  • allow the city & the proposed annexation area to vote
  • the carrot would be city utilitiies & services while the stick would be city taxes

Belton has used development agreements as a stop gap to halt annexation. 

Temple Daily Telegram | Belton may be impacted by special session annexation bill

After Hurricane Sandy, New Jersey Governor Chris Christie signed an executive order permitting eminent domain to rebuild New Jersey’s lost shore line.

The New Jersey Department of Environmental Protection bought easements with the backing of eminent domain to rebuild the shore.

Who is suing the State of New Jersey?

• Property owners claiming that the state did not good faith to negotiate fair value prices for their homes
• Several towns also sued the state, claiming existing bulkheads and rock walls are sufficient and the construction is unnecessarily marring property

The trial court and court of appeals sided with the state. 

Courthouse News Service | NJ Homeowners Lose Hurricane-Inspired Property Battle

Institute for Justice, private property legal advocates of Kelo fame, say Colorado’s HB 17-1313, is the nation’s most comprehensive asset forfetiture reform.

HB 17-1313 will:

• Require biannual reporting of the type of property seized, place of the seizure (e.g. which direction on a highway), if any criminal charges were filed in relation to the seizure, if the forfeiture was contested, and the final disposition of the property;
• Require agencies to report their forfeiture expenditures in detail;
• Require that all forfeiture reporting be posted to a public, searchable database; and
• Impose $500 fines for failure to comply with the reporting requirements. If an agency has not complied within 75 days of the due date, it must pay either a $500 fine or 50 percent of the forfeiture proceeds it received during the reporting period, whichever is greater. 

Institute for Justice | With Governor’s Signature, Colorado Now Leads the Nation for Siezure and Forfeiture Transparancy 

The Wilson Times (Wilson, N.C.) likens eminent domain by a private corporation to trying to buy heirloom tomatoes at a grocer by tossing some coins on the floor. 

The Wilson Times sets out these 3 reasons opposing eminenbt domain by private companies:

• When land men tell land owners that courts will rule in the corporation’s favor, that is an unauthorized practice of law by offering a legal opinion;
• Companies reap profits forver from eminent domain while landowners have a lifetime of inconvenience; and
• States have the authority to limit eminent domain to governmental entities and for public uses only.

Wilson Times | Our Opinion: Pipeline land grab sets stage for limit on eminent domain

A Tyler Morning Telegraph editorial supports:

• The “Save or Trees” advocates neglect that tree ordinances are about “Save our Property Rights”
• Senate Donna Campbell has it right- tree ordinances that control how property owners use their land is tantamount to a taking of property
• Follow the Houston model and convert city owned lands to green spaces to prserve trees

Tyler Morning Telegraph | Editorial: We can protect trees and property rights at the same time

California Supreme Court limits the right to precondemantion access in that:

• any claims arising thereof require can trigger a jury for compensation determinations &
• that precondemnation access and inspection can, in and of itself, be a taking that is compendsable

To make the California Supreme Court ruling align with California Statutes, the California Law Revision Commission is recommending changes to the request code sections that will clarify the jury requirement for compensation.

Why do damages related to precondemantion access and inspection in California trigger a jury for compensation determinations? The California Constitution requires that compensation shall be “ascertained by a jury unless waived “

Property Reserve Inc. v. Superior Court 

California Law Revisions Commission | Eminent Domain: Precondemnation Activities

Vetoed: SB 744 By Kolkhorst Relating to a tree planting credit to offset tree mitigation fees imposed by a municipality.

The Veto Statement Highlights:

• Cities dictating trees is a “assault on provate property rights”
• A compromise bill, like SB 744, cannot only offer ” a very minor restriction on some municipal tree ordinances”
• state law shall not support “municipal micromanagement of private property”
• ” we can do better for private property owners in the upcoming special session”

SB 744 Veto Statement

The local government: Decatur

The 5 year agreement in lieu of annexation would require:

• City forgoes its right to annex the property
• Property owner agrees that the use on the property will be the current use
• Any other use of the property will be governed by the city’s rules and regulations with regards to development

Wise County Messenger | Agreements could delay some annexation

Policy Goal: “Government should never keep assets seized from innocent people,”

The bill: Colorado House Bill 1313

What Colorado’s House Bill 1313 does:

• uniform, biennial, and detailed reporting on property seizures by law enforcement
• reported information must be available to the public online in a searchable format
• limits receipts of seized proeprty from joint investigations with federal agencies

The Governor directed law enforcement funding to offset revenue lost from stricter civil asset forefeiture.

Denver Post | Gov. Hickenlooper signs controversial civil asset forfeiture bill, calls it “important first step” in addressing problems with practice

A judge in the District of Columbia ordered more environmental review of the Dakota Pipeline, including the impact a spill would have on hunting and fishing rights.

The specific hunting and fishing rights relate to rights reserved by the Standinf Rock Souix tribe  on Lake Oahe.

Governing | Tribune News Service | After Oil Starts Flowing, Judge Orders More Environmental Review for Dakota Pipeline

A court in the 10th Circuit has found that if a Native American Tribe has any interest in land, that land cannot be taken by eminent domain for any project, including a utility.

Public Serv. Co. of N.M. v. Barboan, 2017 U.S. App. LEXIS 9204 (10th Cir. 2017).

Harvard University | Property Law Developments | States may not take tribal land by eminent domain

The Big Question: Can a home owner association retroactively restrict the ability of a property owner to lease their property?

The majority of states and courts say yes, retrocative property rights restrictions on short term rentals are ok. 

Harvard University | Retroactive restraints on leasing in homeowners associations

TPPF Statement on the filibuster of Texas’ SB 715, the annexation bill:

• annexation is not going away
• Texans are “outraged”
• Texans demand the right to vote on annexation

South Dakota Governor called a special session to  “create a set of rules for outdoor enthusiasts who want to use lakes on private land in South Dakota for recreation”

The special session is in direct response to a State Supreme Court ruling that denied access to lakes from private property. 

Refreshing our recollection  from march 22, 2017 informed:intel  Legal Trend: Are all Waterways Open to the Public? No, not up north.

• prophibit property owners from charging a fee to fish
•  lakes on private property are open for recreational use unless a landowner installs signs or buoys saying an area is closed

​All waters in South Dakota are public property.

AP | Governor calls special session about lakes on private land

The water project: a depper reservoir south of Florida’s Lake Okeechobee

Earlier versions included the specter of eminnt domain but final version removed eminent domain from the equation and spared privately owned farm land.

BPR BIZPAC review | Florida business leaders played key roles in Legislative Session

According to TPPF’s Rob Henneke and James Quintero, tree ordinances are tantamount to inverse condemnation. They used the C word to describe tree ordinances. 

TPPF | Local Overregulation: Tree-Cutting Ordinances 

According to TPPF here’s what’s happening with tree ordinances in Texas

• 50 cities have onerous tree ordinances
• By way of example, TPPF points to Austin which requires city approval to:
  • remove a tree with a trunk diameter over 9 inches
  • if the tree is over 24 inches in truck diameter, then its a heritage tree, and removal is forbidded unless there is a safety issue
• To solve this problem, TPPF recommends that the Legislature

  • 1. ” prohibit local governments from preventing the trimming or removal of trees or timber located on the landowner’s property. “

TPPF | Local Overregulation: Tree-Cutting Ordinances 

• Donna Campbell 
  • KTSA | Campbell Pushing For Annexation Bill As Part Of A Special Session
• TPPF bullish on a special session on annexation
  • Niagra Gazette | Cities win some, lose some in the 85th Legislature
• San Antonio Homeowners Against Annexation
  • HAA NEWSLETTER AS OF MAY 30, 2017 – CALLING FOR SPECIAL SESSION
• Kingwood Tea Party
  • Add Annexation to the Special Session!

The legal activists:  Texas Civil Rights Project

The Texas Civil Rights Project goal is to:

• Educate Texas landowners by producing videos, in English and Spanish, that spell out landowners’ Constitutional rights
• Holding “know your rights” training sessions for property owners with lawyers & legal volunteers

The target land owner: Border land owners

Corpus Christi Caller Times | Texas Civil Rights Project teaches landowners faults of ‘wrongheaded’ border wall policy

In Illinois, for a county to use quick take eminent domain, it requires:

• Legislation
  • Pass both chambers of the Legislature
  • Be signed by the Governor
  • Be approved by the County Board 
• The Quick Take eminent domain authority has a clock
  • It must be exercised within 1 year

Illinois Senate Bill 567 (2017)

Herald Review | Macon County eminent domain authority awaits Rauner OK

City: Tyler TX

The front yard fence ordinance that concerns property rights advocates: Requiring a special-use permit to have a fence of any kind in the front yard

What was Tyler’s goal of special use permits for front yard fencing? To stop blighted properties which they tied to chain link fences.

In the words of a Tyler City Council Members: 

• chain-link makes neighborhoods look like prison yards
• fences in the front yard are in areas that are headed downward economically

Tyler Morning Telegraph | Tyler Council wrangling property rights versus aesthetics in front yard fencing issue

State: Illinois

The project sparking the no eminent domain for private gain refrain: Great Lakes Rail

The Resolution, HR 437 (2017), hits on these 3 points:

• private company using eminent domain
• up tp $90 million permanent loss of agricultural revenue
• endangers local wildlife

Illinois Valley News Tribune | Rep. Long bill opposes Great Lakes Rail, eminent domain 

the country: Sweden

How can a country list itself on AirBnB? In Sweden, the first law of the country is Allemansrätten which means you can freely roam, camp and forage.

Does Allemansrätten mena you can enter homes or cabins and pillage? No. Swedes aren’t inviting people to be Vikings. The law means you can pick some chantrelles in the forrest, it doesn’t mean pick the lock on the cabin.

Business Insider Nordic | The country of Sweden just became the world’s first to be listed on Airbnb – stay anywhere for free

State: Tennessee

The eminent domain prohibition:  no eminent domain for industrial parks. The Tennessee statute set forth examples of projects that constitute public use, the bill deleted industrial parks from the list.

The legislation: Tennessee’s Senate Bill 1184

The Standard Banner | New law prohibits eminent domain for industrial parks

Knoxville News Sentinel | Eminent domain reform protects farmers

State: Nebraska

The legislative study:  • Does granting eminent domain authority to for-profit entities meet the constitutional requirement of a public use?

The legislation: Nebraksa State Senator Justin Wayne LR243 (2017) 

York News Time | Resolution would stipulate hearings on eminent domain issues

What local government wanted to use eminent domain? Garden City Utah wanted to take land from 11 property owners to create a public access point to a lake

The city agreed to drop eminent domain proceedings in exchange for? The subdivision agreed to create a public walkway to provide lake access

What 3 goals were accomplished with the deal?

• home owners kept their privacy
• town residents and visitors have added access to Bear Lake
• the town’s population tourism numbers increase

KSL.com | Bitter battle between Garden City residents, officials over lake access ends with truce

State: Nebraska

The legislative change:  3+ public hearings for any eminent domain taking

The legislation: Nebraksa State Senator Justin Wayne LR243 (2017) 

York News Time | Resolution would stipulate hearings on eminent domain issues

Texas Public Policy Foundation lays out 3 reasons that local tree cutting ordinances harm private property rights:

City: Lowell, Massachusetts

Vote threshold for eminent domain actions: 6 of the 9 city councillors 

Lowell Sun | Belanger blasts City Council colleagues

In 2017, Idaho passed short term rental law ( HB 216 ) that is being hailed by the right as model legislation because the regulations:

• requires owners of short-term rentals to pay state sales and hotel taxes
• taxes will be collected by “marketplaces” such as Airbnb
• property owners to register with the state tax commission 45 days after their first lodging transaction
• uses state authority to stop local bullies from singling out STRs for special mistreatment
• local governments can regulate short term rentals when “circumstances [are] necessary to safeguard public health and welfare”
• ” perfect use of the right of state governments to pre-empt the locals from using their tax and regulatory authority to abuse individual rights”

Idaho House Bill 216 (2017) 

Idaho Business Review via RStreet | Idaho vacation-rental law is a model for the nation

• About 50% of states allow landowner owners to recover attorney fees in successful eminent domain challenges
• 85% of land owners accept the final offer
  • Texas Civil Justice Leage found that 50% of landowners would go to court if they could be awarded attorney fees on a successful result
  • Florida which permits attorney fees awards has not experienced any of the negative results
• 77% of land owners who take their eminent domain case to court receive 20% or more than the final offer

Houston Chronicle | Eminent domain fight pits two of Texas’ sacred cows against each other

Background for article: A land owner who was offered  less than $50,000 for mile-long swath of pasture and oak trees that abuts the family cemetery, and a commissioners court awarded more than $600,000.

How the article sets up land owners v. energy:

• Landowners claim that not allowing a land owner who prevails to be awarded attorney fees “​provides incentives for utilities, pipeline companies and government entities to undervalue properties in eminent domain takings”
• Energy industry argument against allowing for an award of attorney fees is that douing so would “encourage more lawsuits and raise the cost of projects.”
• What’s driving the energy v. land owner rhetoric now:
  • Pipelines in the Permuian Basin
  • High Speed Rail

Houston Chronicle | Eminent domain fight pits two of Texas’ sacred cows against each other

SB 965 (2017) by Zaffirni would:

• Counties along the river will be able to approve the creation of water and safety zones
• The water & safety zones can impose fees of up to $4 per person
• The fees would support services such as rental of recreation equipment, shuttle service or ingress or egress service
• Due to limited law enforcement the water and safety zones would serve to protect land owners along the San Marcos River

House Sponsor: Cyrier

Texas State University Star | Senate passes legislation to protect San Marcos River

San Marcos Mercury | Texas Senate authorizes special San Marcos River recreation district

State: Virginia

How are private property rights and gun rights butting heads? A retirement community is seeing gunfire from a neighboring agricultural land area on which the owner fires his guns

What is the loophole in the code?  landowners can fire their weapons on their land at pleasure “on any private property in a “basement, cellar, or target range,””

WY Daily | Gunfire near Colonial Heritage pits gun rights against property rights in James City County

The legal fight: Texas Central Rail and Grimes County

The court:  506th District Court in Texas

The judge’s words: The defendants (Texas Central Partners) and their agents are permanently enjoined from performing surveys or other studies which damage, alter or impair county maintained rights of way,”

What Grimes County says it does: prevents Texas Central Rail from exercising precondemantion surveys  & Texas Central Rail does not have eminent domain authority

What Texas Central Rail says it does: Surveys will continue, as they have, and no damage will be incurred by the county

Navasota Examiner News | Judges rules in favor of county, against TCP

Cities in Florida rejoice that the Legislature failed to pass statewide short term home rental legislation. 

The bill would have preempted local ordinances on short term home rentals.

Sarasota Herald Tribune | Vacation rental bill dies, but sponsor pledges to bring it back

The alleged crimes: “fraud by getting inside information from the Texas Department of Transportation to buy cheap land alongside Interstate 35E and then flip it to the state at inflated prices”

How was the land value increased? land underdevelopment was considered to be a higher value 

The “profit” generated by these sales to TXDOT? $12.6Million

Dallas Morning News | Second Dallas investor to admit to scheme using inside TxDOT info to flip highway land for profit

State & Pipeline: Keystone XL in Nebraska

What is the hearing about: Whether the pipeline can be granted eminent domain authority

What happened at the 10 hour hearing:

• Allowing for eminent domain, according to private proeprty rights supporters  would result in protests that  “would make the mass protests that accompanied the Dakota Access Pipeline in North Dakota look like a “dress rehearsal.”

With how many of the landowners has the pipeline reached an agreement? 90% of the landowners have reached an agreement with the pipeline

Omaha World Herald | Supporters, opponents bring familiar arguments to 10-hour public hearing on Keystone XL pipeline

How does this project seek to avoid eminent domain? The hydrogen superhighway proposed in Michigan will elevate the superhighway, limiting the need for access roads.

What will the superhighway carry?

•  vehicles for public transit
•  individual automobiles
• standard ISO freight containers
• an embedded hydrogen distribution pipeline system

Government Security News | Michigan company sees ‘Hydrogen Super Highway’ as the future of rail transportation

Private property rights groups say the eminent domain bills of the Texas Legislature are too watered down to support.

The bills do not protect propety owners by not:

• providing a guarantee of a fair market value for land owners

NewsTalk 710 | A Setback On Eminent Domain Reform

ALEC on eminent domain for high speed rail:

“Of course, a great many public use transportation infrastructure projects ultimately need to use eminent domain to be able to reach completion. Specifically, railroads, including those in Texas, have long had to resort to eminent domain to provide a bene t to the public as have highways and other public infrastructure. And the truth is that trying to build a railroad (or highway) without some sort of eminent domain is nearly impossible. “

“Like the authority or not, eminent domain is a constitutional guarantee given to the government and assumed by the states.”

ALEC | Innovation in Transportation: Private Investment in Public Infrastructure  in Texas 

State: Mississippi

The tax proposal on home sharing: 

• is triggered if a person rents out their home, or a portion thereof for less than 90 days
• must remit 7 %state sales tax on gross revenue from the rental and related charges
  • other charges include: such as soap, coffee, food or other amenities
•  requires collection and remittance of any applicable local government “hospitality” taxes

Clarion Ledger | Mississippi Dept. of Revenue pushing to tax Airbnb, other rentals like hotels

City: Seattle

The proposed home sharing ordinance:

• requires hosts to get a short-term rental operator’s license with the city
• no city restrictions on the number of nights on a primary residence
• hosts can own 2 properties within seattle under the ordinance

NBC K5 Western Washington | Seattle Councilmember proposes Airbnb regulations

In competing constitutional rights, the Dakota Access pipeline protests, which have had violent moments, is placing the following security measures in place for the legal fight:

• No guns
• No knives
• No video cameras
• No signs, posters or banners larger than a standard sheet of paper
• No  noisemakers
• No backpack
• No large bags
• No containers and coolers

News Channel Nebraska | ‘Security Measures’ Planned for Pipeline Hearing

Eminent Domain protestors in Pennsylvania have lived in trees for more than a year to protest a pipeline. 

WJAC | Group lives in trees for more than a year to protest pipeline

The state: Virgina

The legislative action at issue:  In 2003 the VA Constitution added:

 “That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.”

The VA Supreme Court: What happens if the Court rules that the right to private property is fundamental:

• shift zoning cases to judges, from local governments
• zoning cases will have heavier scrutiny
• court dockets would be clogged

News Leader | How county pipeline case in Va. Supreme Court could shape eminent domain law

The agency: Texas General Land Office

The land: Rollover Pass on the Boliver Penninsula

The entity using eminent domain: Galveston County

Where are the courts? County Court-at-Law Judge ruled in favor of the use of eminent domain. The next phase will be detemrineing value.

Beaumont Enterprise | Court order could doom Rollover Pass

The Republican Chairman of the Regulated Industries Committee that heard Florida’s proposed statewide short term rental bill said the following in opposition to the bill:

• He’s an advocate for local control of vacation rentals
• He offered an amendment to preserve local control, his county attorney opposed the amendment
• He brings the bill up for a vote, and votes no. There were more than ample ayes to pass the bill.

Palm Coast Observer | Florida State Senator Travis Hutson | Here’s what’s really happening with the vacation rentals bill in the Florida Senate

State: California

Mining Method banned by state law for mining on federal lands: suction dredge mining

The property right interest: mining claim

What can state laws do in this case? State laws can supplement federal laws but cannot friustrate federal laws

Is this getting addressed by policy?regulations? statutes? courts? The US Supreme Court will consider whether to hear the case.

Pacific Legal Foundation | Briefing complete on cert. petition in Rinehart v. California

• New kid on the block defending property rights on the border: Texas Civil Rights Project
• The border wall would trigger a federal use of eminent domain, and not Texas’ use of eminent domain
  • An alleged leaked memo says an actual fence will be built on roughly 36 miles of land in the Rio Grande Valley
• In 2006 when a wall was last attempted, 100s of lawsuits were filed 

Valley Central | Border wall plans spur effort to help Texas landowners with eminent domain

Compensation & Valuation:

• TX + 28 states use the Broad Instruction Approach
  • Broad Instruction Approach provides minimal instruction on compensation
• 17 states use the Factor Based Approach
  • Factor Based Approach specifically lays out what considerations should be followed by the court in determining the fair market value of the land. 
  • Seeks to ensures that relevant information is considered in every condemnation case 

A consideration for Texas:

What is flipping right of way?  2 investors have been investigated by the FBI for buying right of way near I-35East, and arguing that land delveopment deals increased the land’s value when the land was sold to TXDOT.

What happened to the 2 investors? 

• 1 entered a guilty plea to one count of conspiracy to commit mail fraud
• 1 is awaiting trial

The amount garnered from the land transactions?  2 investors received $12.9 million above their purchase price

Dallas Morning News | Dallas man admits fraudulently buying and flipping highway land to state at huge profit

Attorney Fees:

• TX awards attorney fees if the condemnor doesn’t make a bonafide offer
• 40 other states award on a broader basis
  • 4 states use as standard of 110% of condemnor’s offer 
  • Colorado uses a standard of 130% of condemnor’s offer 
  • 2 states use a standard of 120% of condemnor’s offer 
  • 2 states use a standard of 115% of condemnor’s offer 
  • 6 states use a standard of any amount over the condemnor offer
  • 1 state uses a standard of “closer to land owner’s value than condemor’s attested value of property”
  • 10 states award attorney fees if the condemnor did not have authority to condemn

Texas A&M | LAW AND POLICY RESOURCE GUIDE 

State: Utah

How did Utah end up protecting the right to advertise your property on AirBnB? 

• The legislature left cities and counties with the ability to regulate short term rentals
• But, the Legislature provided statewide protection by permitting advertising of your property on AirBnB platform. 
• The advertising provision replaced a preemption provision. 

Utah House Bill 253 (2017) 

Moab Sun News | Rentals bill shifts focus to online advertising

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• Private companies exercise eminent domain all the time in Texas with no gross mismangement
• Private rail has exercised eminent domain for more than 100 years
• Texas has property owner protections

Dallas Morning News | Why it’s perfectly appropriate to allow a private railroad to use eminent domain

State: Florida

Legislative Fix: 

• Increase a reservoir capacity
• Stop overflows of toxic “guacamole water” into the state’s rivers and streams

The Eminent Domain issue:

•  Eminent domain authority amendments failed
• SB 10 prohibits the use of eminent domain

FLORIDA SB 10 (2017)

Florida Politics | Senate approves plan to fix Lake Okeechobee, end algae invasions

AirBnB has entered into an agreement with the Comptroller’s Office that requires:

• Guests will be required to pay the  6% hotel occupancy tax
• The 6% tax will be assessed beginning May 1st
• AirBnB will collect and remit the tax

It is estimated in 2016, AirBnB would have generated $8 million in hotel motel taxes.

Dallas Morning News | Airbnb to start collecting hotel taxes in Texas beginning May 1

State: Indiana

The eminent domain legislation: 

• heightens the public use standard
• puts into state law a federal appraisal standard
• limits the amount of land that can be taken, tying all the land to the public use

Northwest Indiana Times | Rail eminent domain changes win legislative approval

Indiana House Bill 1260 (2017)

• A lawsuit from 78 year old property owner and a countersuit by Texas High Speed Rail had a hearing this week
• What put them into court was whether the rail could have pre-condemantion access to the property to survey it
• What kept them in court, when Texas Central Rail, had dropped other similar lawsuits, was that this lawsuit wanted Texas Central Rail to admit that it did not have eminent domain authority

No ruling yet from the Court. 

KBTX | Leon County landowner meets high speed rail company in court

• “Many [Senators] still consider the privately financed plan a boondoggle”

Austin Business Journal | Bills targeting Texas high-speed rail spark debate in Senate Transportation Committee

• The bill prohibiting eminent domain for high speed rail has been sent to Local and Consent. 

Austin American Statesman | Bills stalling or stopping bullet train pass Texas Senate committee

• Focused on the land owners experience. Including this quote from a member of the Board of Directors  of the  Texas and Southwestern Cattle Raisers Association, “”Private law abiding citizens should not emerge from the eminent domain process battered, bruised and financially poorer by the deeds of condemnors who are acting as agents of the State of Texas,”

My Highland Plains | Texas Cattle Raisers Testify in Support of SB 740 for Eminent Domain Reform

Oakland Mayor Schaaf intends to use eminent domain to prevent the Raiders from moving to Las Vegas.

Sound far fetched? Oakland has used the same tactic before.

Oakland News Online | Mayor Schaaf Announce Plan to Take Oakland Raiders

CSNBayArea | OAKLAND MAYOR CONFIDENT IN KEEPING RAIDERS

State: Michigan

Bill language from Michigan: 

The Georgia Legislature passed House Bill 413 which sets for an eminent domain compromise for privately owned pipelines that:

• requires a 2 step permit process
  • Permit #1 is environmental and for the length of the entire pipeline
  • Permit #2 is from the Georgia DOT that grants a public need permit to authorize eminent domain
• the permits can be appealed by citizens when the permits are granted

Savannah Morning News | Georgia lawmakers pass compromise pipeline bill

Let’s get the big issue disposed with first- did Texas file a brief supporting property owners? No. Negatory. Not happening.

So what interest does Nevada have? The case is very important to states federal lands where the feds often  try to restrict the use of state-owned lands that abut federal land

Why does the federal control of land in Texas sound fmailiar? Yes, because Texas had that issue along the red river. 

Elko Daily Free Press | Commentary: Why Nevada joined a Wisconsin property rights case