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

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: