Topics
Land Use & Property Rights
Land Use & Property Rights
COVID. Short Term Rentals Fare Better than Hotels.
The week of March 31, 2020, in 27 key markets, hotel occupancy decrease by 77% and short term rentals decreased by 45%.
Recovery for short term rentals has been steeper with roughly 2.5 million bookings per week worldwide.
COVID. New Normal Include States Reducing Real Estate Holdings?
Where? Tennessee
Who? Tennessee’s General Services Commissioner
His proposal to reduce costs by reducing real estate is supported by:
- The cost of acquiring and maintaining property is a top 5 expense for Tennessee
- Since 2017, Tennessee has employed Alternative Workplace Solutions
What are the benefits of alternative workplace solutions for state workers?
- improved customer service
- boosted worker productivity and job satisfaction
- reduced its need for expensive office space
- saving $5 million in annual real estate costs
Governing | How to Shrink Government’s Expensive Real Estate Footprint
Landowners New Partnerships to Oppose Flood Control/Wildlife Project
Where: Roseau County, Minnesota
Who has partnered with landowners? Institute for Justice, a national nonprofit opposing the misuse of eminent domain
What does their opposition campaign look like? 2 50 foot trailers with their message
Remember, the Institute for Justices has local offices throughout the country.
Homelessness solutions from Helsinki
Helsinki discovered that the most cost effective means to combat homelessness was to pay the living expenses of homeless Finns.
Finland spends 15,000 euros less per year per homeless person by providing housing for the homeless.
Pressenza | Finland ends homelessness and provides shelter for all in need
BLM + National Register of Historic Places
Has your local or state government looked into the number of historic designations of Black, indigenous, & POC? They will.
New York discovered that 17 of the 37,000+ sites given landmark status are dedicated to abolitionist or Underground Railroad history.
2% of the 95,000 entries on the National Register of Historic Places reflect the experience of Black Americans.
CityLab Daily | How to Preserve Buildings Tied to Black History
Tax Foreclosure Sales Amount to Takings
Where: Michigan
What: The Michigan Supreme Court ruled that if property sold at a tax foreclosure sale by a county is sold at a profit, the profit goes to the property owner from whom the property was taken
The estimated cost of reimbursement to Michiganers? $2 Billion
Detroit News | High court: Michigan counties cannot make profit on tax-foreclosed homes
Interesting Private Property Law of the Week
Indiana allows citizens to make arrests of people punching other people on private property.
New York Times | 2 White Men Charged After Helping Pin Black Man to a Tree in Indiana, Officials Say
Hair. Is Deeply Personal. Welcome to The Crown Act.
What is The Crown Act? ““Create a Respectful and Open World for Natural Hair,” is a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.”
Which industries are supporting the state legislation?
- Dove
- U. S. Black Chambers, Inc.
- EARTHGIRL
- Women in Public Policy, Inc.
- Ujima, Inc.
- California Black Chamber of Commerce
- + more
8 States have passed the Crown Act.
9 States are actively considering the legislation.
20+ states have neither considered it nor passed the legislation.
When Campaign Reporting + Eminent Domain Collide
Say your political campaign needs a loan. Say that loan comes from an account funded with proceeds from compensation from a taking by eminent domain.
What disclosures are needed when the funds that a campaign are borrowing come from tax dollar funded eminent domain compensation?
Will this issue get more coverage? Do I need to pay attention? Yes, because its occurring in the race to replace Florida’s Congressman Yoho. You may have seen his name in more headlines this week.
Florida Politics | Judson Sapp amends financial disclosures to show source of campaign loans
Legal TREND. Ask for Permission not Forgiveness when condemning property.
Where: Lousiana’s Third Circuit Court of Appeal
What? Big companies shouldn’t be asking for forgiveness instead of permission when they take land
The surprise by the court: That the court said the company “trampled” the rights of the landowner
KPLC | Third Circuit says Bayou Bridge Pipeline trampled on landowners’ rights
BLM + COVID. AirBnB Response.
AirbnB is conducting a study to root out discrimination.
In the last 4 years how many people has Airbnb removed from its platform for racism/discrimination? Airbnb has removed 1.3 million people
ABC 11 | Airbnb conducting study to try to eliminate discrimination by hosts
Corporate Funding for Local Housing Crisis
Which corporation is committing funds for housing? Apple
How is Apple helping housing?
- committed over $400 million to housing programs
- pledged a total funding of $2.5 billion
- $1 billion California affordable housing fund
- $1 billion for home buyer assistance
- using land valued at $300 million for affordable housing
- $150 million committed to Housing Trust Silicon Valley
- $50 million to Destination: Home
- fund over 1,250 new Bay Area affordable housing units
- + aid thousands of first-time California home buyers
Is Apple the only tech company stepping into housing? no, Google and Facebook are each allocating $1 billion to housing, including funding affordable units.
Will tech companies partner to reach these housing goals? Yes, Apple is partnering with nonprofit Housing Trust Silicon Valley
San Francisco Chronicle | Apple commits over $400 million of $2.5 billion California housing pledge
Legislation Banning Eminent Domain for a Public Private Project
The public private project hyper loop project that won’t be permitted to use eminent domain? A Hyperloop in Missouri
How did the eminent domain prohibition pass? In an omnibus transportation bill HB 1093 (2020 | MO)
Can the project use public funds? no
Missouri Net | Parson signs megabill with partial motorcycle helmet repeal
WildLife and Private Property Rights
How is exotic game classified under Texas laws? As Private Property, just as livestock and pets are
What does that mean for hunting regulations? Hunting regulations do not apply, you can ” hunt them “day or night,” says John Silovsky, deputy director of theTexas Parks and Wildlife Department. “No bag limits, no seasons.”
National Geographic | A behind-the-scenes look at Texas’ exotic animal ranches
Public School Uses Eminent Domain to Take Charter School
Where: Minnesota’s Iron Range school district
How is the Iron Range school district using eminent domain? To build a new high school the school district seeks to take a charter school’s property
Is the district doing anything to help the charter school continue operations? yes, offering to assist with its relocation
Are fossils surface rights?
So you’ve found dinosaur remains on your property. Do you have rights to the fossils?
Well, if you’re in Montana, the 9th U.S. Circuit Court of Appeals, says if you are the surface rights owner, yes you have rights in the dinosaur bones. If you are the mineral rights owner, no rights in the dinosaur bones.
Why did the surface owner get the fossil rights?
- The fossils were found on the surface
- In 2019 Montana Legislature passed a bill defining dinosaur fossils as part of a property’s surface estate unless they are reserved as part of the mineral estate.
The value of dinosaur bones: $$$ millions.
COVID. TX Attorney General Opinion. Evictions + Emergency Orders
What will the Texas Attorney General be asked to offer an opinion on in RQ-0362-KP?
Are local government ordinances/emergency orders valid that prohibit, delay or restrict eviction?
Who is asking for the opinion? Senator Brandon Creighton
TX Attorney General Opinion. Statue Removal at Texas A&M
What question will the Texas Attorney General decide?
- Does the Texas Government Code give the University authority to remove a statue of Lawrence Sullivan Ross?
- Or, does the state, through the Preservation Board or the Historical Commission, have to approve the removal?
COVID Legislation. Quarantines with no Executive Order
Which state is considering legislation to allow quarantines with no executive order? Hawaii
Which governmental agency would be granted quarantine authority? Hawaii’s Department of Health
How would this work?
- State health director would have authority to declare a public health emergency
- State Health Department would have temporary emergency powers
- The agency could then :
- impose of health screening, testing, contact tracing, quarantine and isolation protocols
- require declarations of health status and travel histories from arriving travelers
- order the temporary closure of schools or businesses
HB 2502 (2020 | HI) and HB 1049 (2020 | HI) containing provisions similar to HB 2502
Hawaii Tribune Herald | COVID-19 bills introduced in Legislature
Lege TREND. Creative use of Rental Relief Funds
Where: Colorado
What: HB20-410 (2020 | CO) details the state’s use of Coronavirus Relief Fund
How are the rental relief funds being used under this bill?
- A portion to homelessness
- A portion to housing development grant fund
- A portion to Medicaid to support assisted living facilities
COVID Tracing legislation. The data privacy issues.
What data privacy issues are at play in COVID tracing apps beyond personal information?
- federal preemption of state law
- the right of private parties to sue to enforce their rights in their data privacy
- how much data, even anonymized, can a corporation or governmental entity access
- can that data be sold?
What does polling say about giving up data privacy for contact tracing? People aren’t ready to say yes to giving their data for contact tracing
National Law Review | Privacy vs. Security in the Post-Pandemic World
Business TREND. Rights in your Data.
Apple’s WWDC announcement this week contained a repeat of its position on the right to privacy:
“Privacy is a fundamental human right. At Apple, it’s also one of our core values. Your devices are important to so many parts of your life. What you share from those experiences, and who you share it with, should be up to you. We design Apple products to protect your privacy and give you control over your information. It’s not always easy. But that’s the kind of innovation we believe in.”
Why does this matter? Check out the Data Security Section where we have legislation that is seen as government access to private data or look at COVID legislation on tracing applications.
Property Rights Arguments for Keeping Garden Centers Open during COVID
The Institute for Justice sent Michigan Governor a letter supporting opening garden centers that included the following private property reasons:
- “Growing food at home is the surest and safest way for Michiganders”
- Unequal treatment of garden centers when grocery and home improvement stores can be open
Taking Controversial Statues by Eminent Domain.
Eminent domain was proposed by a city in Arkansas to remove a confederate statue from private property.
Virginia Gov. Ralph Northam’s office is proposing eminent domain to remove a Robert E Lee statue in Richmond, Virginia.
Eminent domain is mentioned as a way to preserve a statue of President Theodore Roosevelt that was removed from outside the Natural History Museum.
New York Sun | ‘Theodore! With all thy faults —’
Arkansas Democrat Gazette | Hot Springs given 2 options to move Rebel statue
Local Rules. Proposed Short Term Rental Rules to Distance Rentals.
The City: Santa Fe, NM
What revisions is Santa Fe considering to spread out short term rentals?
- Prohibit new permit within 75 feet of an existing rental
- Permits will only be granted to individuals not companies, partnerships or LLCs
- Owners must live in the city and be available at all hours
- Limit of 1 group/person every 7 days
Santa Fe New Mexican | Santa Fe wants to tighten restrictions on short-term rentals
COVID. Can food trucks at rest stops continue after restaurants open?
The State: Idaho
How many food trucks were granted provisional licenses to operate at rest stops? 30
What does Idaho say prevents it from allowing the food trucks to continue at rest stops? Federal Regulations
CDL Life | State’s Rest Area Food Truck Permits Will Not Be Renewed
COVID Ordinance Response. Amending Food Truck Rules
Where: Marthas Vineyard, MA
How is Martha Vineyard considering amending its food truck rules in a COVID world?
- Limiting Food Trucks to trucks parked outside existing restaurants
- Allow restaurants within 200 feet of a proposed food truck veto power
Protestors Taking Over Public & Private Property.
What do you mean protestors take over property?
- 2016– a group of “right-wing extremists” took over an Oregon wildlife refuge
- 2020– a group of “left-wing extremists” take over public and private property on Seattle’s Capitol Hill
What stopped the protestor occupation?
- In 2016 federal authorities, after a 30 day standoff, arrested the protestors
- In 2017 Seattle’s now mayor, then a US Attorney, supported forcibly removing protestors
- In 2020, Seattle’s protestors were diverted to the building to defray threats to burn a police station. Removal of the protestors is still pending
KIRO | Dori: Mayor Durkan has no consistency on takeover of private property
Eater Seattle | What It’s Like to Eat Inside Seattle’s Much-Discussed Protest Space
3 Signs of a Short Term Rental Resurgence
- June bookings grew, year over year, for the first time since February 2020
- People have the travel bug after being home
- In May 2020 AirBnB was able to raise $2Billion
What steps did AirbnB take during COVID?
- Offered refunds
- Established safety and sanitizing protocols
- Established a $250 million relief fund
CNBC | Airbnb is poised for a comeback after a brutal spring
Eminent Domain Legal Opinion Du Jour
Meet the 11 judge panel D.C. Circuit.
The 11 judge panel is considering Allegheny Defense Project v. FERC proceeding.
Why does this matter to those impacted by eminent domain policy? This case includes the following arguments by FERC Commission Glick:
- “Eminent domain is among the most significant actions that a government may take with regard to an individual’s private property.
- And the harm to an individual from having his or her land condemned is one that may never be fully remedied, even in the event they receive their constitutionally required compensation,”
- “Bearing those basic facts in mind, there is something fundamentally unfair about a regulatory regime that allows a private entity to start the process of condemning an individual’s land before the landowner can go to court to contest the basis for that condemnation action.”
New Voice Supporting Property Rights in Personal Internet Data
The new supporter of property rights in your online data? Bitcoin & blockchain advocates
What attributes of the current internet industry are highlighted by property rights supporters as a need for property rights in your data?
- That companies are starting to act like gate keepers by censoring information
- Growth of implicitly state-controlled platforms like TikTok
- Consolidation of internet platforms into static oligopolies that limits an individuals ability to move their information freely
CoinDesk | Your Property Rights Should Extend to Social Media
What 4 things halted eminent domain for pipelines at FERC?
- A House investigation that eminent domain is permitted in 99% of pipeline requests over the last 20 years
- That every property owner appeal to FERC in the last 12 years was denied
- Concerns from land owners
- A desire for open, fair and transparent process by the FERC chair
The Hill | Energy commission rule will delay pipeline construction during appeals process
COVID Legislation. Limit Liability for Meat Packing.
Where: Iowa
What: An amendment to an existing medical malpractice bill sets up limited liability for meat packing plants and other employers relating to COVID causes of action.
Are there exceptions that permit a COVID lawsuit?
- if COVID required hospitalization
- if COVID caused death
- if the employer intended harm
What does the legislation require before immunity applies?
- that the business complied with any federal, state or public health guidelines or statutes related to COVID-19
COVID + Eminent Domain. Masks on Private Property?
Which eminent domain related issues are percolating on a pipeline project? The lack of PPE with pipeline construction workers
What specific issues are being raised by landowners? Construction related workers who are:
- not wearing masks
- not wearing gloves
- not following social distancing rules
COVID Rules for Short Term Rentals
Where: Colorado
What will be required of short term rentals in the new COVID rules?
- Must provide hand sanitizer
- Must provide cleaning products
- Mandatory 24 hour waiting period after a tenant has left to clean following CDC standards
- Requires any soft objects that are hard to clean, like pillows or extra throw blankets, be removed
- Guests who’ve been sick or been in close contact with someone with COVID-19 will have to cancel their stay.
The Property = Statues. Who pays to remove them?
Monday: Birmingham Alabama removed confederate statues.
Tuesday: Alabama Attorney General sues Birmingham for removing the confederate statues.
What remedy does the Alabama Attorney General want from Birmingham for the alleged violation of the Alabama Memorial Preservation Act?
- $25,000 fine
Does this sound like deja vu? Yes, a similar statue fight went to the Alabama Supreme Court in 2017.
The Mayor said the fine is cheaper than the ongoing risks to the city from the demonstrations. A group of pastors has raised $60,000 to pay the fine.
CourtHouse News Service | Alabama AG Sues Birmingham for Removing Rebel Monument
NPR | Confederate Monument Being Removed After Birmingham Mayor Vows To ‘Finish The Job’
Private Property Rights + Mobile Cannabis Sales
Where: Minnesota
What: SF 4255 (2020 | MN) would allow property owners to consent to a mobile unit to park on their property to distribute medicinal cannabis
How would this mobile distribution center work?
- require the property owner and cannabis distributor to agree to a specific time & place
- require a pharmacist to be present
Governing | Legislative Watch: The Cannabis Industry in the Age of COVID
Legislative TREND: Compensation for Shutting Down Businesses
The state: North Carolina
The legislation: HB 1174 (2020 | NC)
What’s the goal? Allow businesses to be compensated when they are closed, partially or completely, by a governor’s executive order.
How does the bill get there? Amend the state constitution to define a full or partial business shutdown by governor executive order as an inverse condemnation.
Compensation contemplated: Loss of income + property losses
Winston Salem Journal | N.C, House bill would allow business owners to sue over shutdowns
An Auditor & a City’s Eminent Domain Use
The City: Denver
The issues raised by the Auditor:
- Lack of detail in the eminent domain policy
- Lack of detail in its communication with the Controller’s Office about eminent transactions
- Auditors believe details would limit the city’s liability
- Need for a deadline to record an eminent domain acquisition (one was recorded 1 year from the acquisition which was considered too long)
Prohibiting Eminent Domain for Transmission Lines: 3 Things Supporters Want
Where: Missouri
What project has sparked this ongoing push to prohibit eminent domain for transmission lines? The Grain Belt Line which will move renewable energy through several states, including Missouri
What does the Missouri Farm Bureau want?
- That transmission companies negotiate with landowners for property/easements
- That the negotiations be for freely negotiated rates
- Align the property acquisition to the same standards as wind turbines
Ozark Radio News | Opinion: Legislative session marred by missed opportunity on property rights
COVID Regulatory Response. Universal Acceptance of Out of State Occupational Licenses
How many states universally accept out of state occupational licenses for new residents? 1
Which state? Arizona
Are there limitations to Arizona acceptance? Yes.
- Must be licensed for 1 year
- No criminal convictions
- No disciplinary actions
Supporters say:
- Removes obstacles for spouses relocating to Arizona
- Removes unnecessary burdens on businesses
- Strict licensing requirements is a result of bullies serving on boards
Governing | Arizona Becomes the First to Recognize Out-of-State Job Licenses
Legislative TREND: COVID Bids Adieu to Certificates of Need to Build Hospitals
Which Certificates of Need are likely on the policy chopping block? Certificates of Need for Hospitals and health care centers
Why? What are the policy reasons?
- Industry specific requirement that targets only healthcare
- Anti- Competitive to have to prove to a governmental entity that “your competitors don’t have enough capacity and there is an unmet need”
Who supports this? Institute for Justice
How many states have implemented a Certificate of Need requirement for health care facilities since the 1960s? 49. All except Lousiana
Governing | As Economy Reopens, a Push to Rethink Regulations
Legal. Is new High Speed Rail in Texas a railroad?
What did the appellate court say? Yes, Texas Central is a railroad thereby authorizing eminent domain authority
Up next: Appeal to the Texas Supreme Court
The Eagle | Opponents of Brazos Valley high-speed rail likely to appeal latest court ruling
D Magazine | Texas Central High-Speed Rail Wins Four-Year Court Battle
+1 State Online Property Posting
Where: North Dakota
What online property posting is being launched in North Dakota?
- Posting land for hunting access
Who will operate the online dates for hunting lands?
- The state Game and Fish Department’s online licensing platform
St. Louis Patch Dispatch | North Dakota launching online land posting app in 3 counties
TX Attorney General Opinion. COVID + Local Governments Commandeering Property
Can local government commandeer property during an emergency in Texas?
No. Not going to happen without changing some laws.
What law needs to change? Government Code section 418.108
Can the Governor commandeer property during a disaster? Yes, Government Code subsection 418.017(c) specifically allows the Governor to commandeer property
TX Attorney General Opinion: COVID and 2nd homes
Question 1: Can local emergency orders include blocking property owners from accessing their 2nd homes?
Answer 1: No, unless a court determines that the local government is legitimately using its police power
Question 2: Can local emergency orders limit the use of 2nd homes by property owners?
Answer 2: No, and the Governor’s Executive Order states it supersedes local authority with this line: “any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order . . .”
Legislative Deja Va: Prohibiting Eminent Domain for Transmission Lines
Where: Missouri
What: SB 618 (2020 | MO)
What type of bill is this 3rd attempt of 2020? a bill about how gas companies deal with a government-mandated infrastructure surcharge
How was it added? In House committee and the House has approved the eminent domain prohibition previously this legislative session
Energy News | Missouri eminent domain bill takes aim again at Grain Belt Express project
COVID Property Rights. Bars + Armed Supportive Protestors
Where: Big Daddy Zane’s, a bar in Odessa, Texas
Did the bar owner talk to the local sheriff? Yes, she says the Sheriff advise to keep the armed supporters out of sight
Where did the bar owner stage the armed supporters? On her private property “in the back”
Legal TREND. Short Term Rental Owners Sue over Shelter at Home Orders
Where: Florida
What’s the lawsuit by short term rental owners about? By prohibiting short term rentals in the Florida Executive COVID Order, the Governor denied property owners use of their property
Did the Governor’s Order also close motels and hotels? No
Tampa Patch | Vacation Rental Property Owners Sue State For Coronavirus Losses
COVID Funding for Meat Packing
The State: Missouri
How did Missouri use federal COVID stimulus funding for meat packing? Allocating in the state budget $20 M to get meat packing plants up and running
What is the Missouri Cattlemen’s Association saying? “production has slowed as plants spread out workers for social distancing.”
KRCG | Missouri senators set aside $20M for meat packing plants
Local TREND. Parking Space Limits. Meet Business TREND. Parking Space Innovators. Meet COVID.
Cities that are considering removing minimum parking space requirements:
- Los Angeles
- San Francisco
- Austin has waived the requirement
- Seattle gives out transit passes rather than requiring on-site parking at each residential building
- Dallas is turning parking lots into parks
How has parking been impacted by COVID? Demand down 90% since mid-March
What companies are innovating parking space industry?
- Parking Spotter
- Spacer
- SpotHero
- Curbstand via a valet solution
- AirGarage
- Partners with churches, hotels, restaurants- allowing the church or business to retain 70% of parking space rental fee
How have they pivoted after COVID?
- Utilizing parking spaces for pop-up grocery stores
- Empty parking lots have become pop-drive ins
TX Attorney General Opinion. School Districts Leasing Property to Private Parties.
What legal question needs clarification in Texas?
- May a school district lease property when the lease is:
- to a private party
- the value of the lease exceeds the value if the district sold the property
- the property will be used for non-educational purposes
COVID Local Response: Local Only. Adieu 2nd hone owners.
Where: Gunnison County, Colorado
What: On April 3rd the County ordered owners of second homes in the county to leave or stay away
Supporters say: Local governments have police powers to protect health and safety. The County has one of the highest rates of COVID and limited hospital resources.
Opponents say: Violates the rights of Americans to travel freely
What did other Colorado local governments do?
- Aspen: Self quarantine for 14 days
- Clear Creek County closes to out of county visitors
COVID Attorney General Opinion. Occupancy of 2nd Homes
Which State Attorney General: Texas
What question will the Texas Attorney General answer?
- whether a local governmental entity under an emergency declaration has the authority to (1) prevent an owner of a second home from occupying their property and (2) limit occupancy of housing based on length of the occupancy’s term.
How a Property Rights Bill Became a Limit for County Land Use v. Cities
Where: Florida
What: SB 410 (2020 | FL)
How did SB 410 begin? As a requirement that local governments include private property rights in their comprehensive plans
What does the bill do now?
- Prohibits counties from making any land use decision “that serves as a limitation” on a cities’ land use and zoning practices.
- Cities can offer express consent for the county’s land use decisions
- This need to express consent applies to current city limits but also any land that may annexed by a city
- Applies to counties under 750,000
Professional Licensing. Staff Leasing Offering Payroll Services a Texas Attorney General Opinion.
The Texas Attorney General Opinion Request: RQ-00348-KP
Who requested the Attorney General Opinion? The Commissioner of Banking
What question will be answered? whether a licensed PEO ( a staff leasing company) that collects payroll funds in advance from an employer-client to be remitted to covered employees at a later time is subject to the licensure requirements ofthe Money Services Act ifthat entity holds a PEO license under the Labor Code.
Why did this issue pop up?
- Texas Department of Banking also regulates PSPs, payroll service providers
- traditional PSPs receive compensation from Texas employer-clients in exchange for the receipt and subsequent transmission of payroll wages and taxes to employees
- traditional PSPs require a money transmission license
COVID Attorney General Opinion. Pawnshops & Interest Rates.
The Attorney General Office: Texas
What question will Texas Attorney General Opinion answer? Whether or not Dallas County Commission has authority to change interest rates charged by pawn shops
What limitations did Dallas County Commissioners impose on pawn shops?
- Limit customers to 1 in the facility at a time
- maximum 15% APR
- extend how long a pawn shop must hold property
- with penalties of up to 180 days in jail and a $1000 fine
COVID Beach Closings. Local v. State. Compare. Contrast.
State leaving beach closures to local officials: Texas
State closing beaches statewide: Florida
Did all local entities close Texas beaches? No
- City of Galveston closed since March 29
- Non incorporated Galveston opened beaches on April 13th
- Galveston Island State Park re-opened as all state parks did by Governor declaration on April 13th
- Corpus Christi beaches closed for Easter weekend, continue to be open until 8 p.m. daily
- South Padre Island beaches are only open for “active exercise”
- Rockport beaches are closed until April 30
Did Florida pivot to locals for re-opening? Yes, the decision to re-open will be that of local officials
Spectrum news | Florida Beaches Facing Criticism but Some in Texas Never Fully Closed
Parks & COVID. The Esport & Virtual Classes Pivot.
Where: Illinois’ Naperville Park District
How is the park district adopting esports while athletic fields remain closed?
- created a six-week eSport competition
- based on Rocket League
- open to players of all ages and all skill levels
- no cost for participation
Benefits of incorporating esports into parks?
- not every parent can cover the cost of sports
- gender and disabilities become irrelevant in virtual games
What virtual classes is the park offering?
- virtual services at NaperParks2You
- dance lessons
- yoga for children
- art, nature and learning activities
- Zumba class for seniors
3 Post-COVID Reforms from Property Rights Advocates
Which property rights advocates? The Institute for Justice
What COVID related reforms is the Institute for Justice working on?
- Regulatory barriers for professional licensing
- Medical licenses scope of practices issues identified in 7 states: CA, TX, FL, GA, NC, VA, OK
- Regulatory barriers for small businesses
- Supporting Michigan independent garden centers and nurseries ability to operate during COVID
- Limit government overreach during the crisis
Local TREND. Commandeering Hotel Rooms. When Paying Rates Isn’t Enough.
Where: San Francisco, CA
What: The city has been paying for hotel rooms. City Controller estimates that the 7,000 rooms could cost over $105 M over 90 days
What’s Phase 2? Commandeering hotel rooms which prompted this memo from the City Attorney Office
Curbed San Francisco | SF mayor, county may seize private buildings for coronavirus relief
COVID Regulatory Changes for Businesses.
Where: California
What new rules may be imposed on restaurant owners?
- disposable menus
- temperature testing patrons
- increased cleaning and sanitation
- reduced in restaurant capacity
- mask requirements for what staff
How property space and limits factor into States Re-opening
California Governor listed 6 factors to consider in re-opening the state for business:
- Expanding testing
- Protecting high risk groups, including seniors, the medically vulnerable and people in facilities like nursing homes
- Ensuring hospitals have enough beds and supplies to care for patients
- Progress in developing treatments
- Ability of schools and businesses to support physical distancing
- Ability to decide when to reinstitute stay-at-home orders if needed
The 3 that concern property rights:
- whether schools can support social distancing
- whether businesses can support social distancing
- the ability to have additional stay at home orders (which may or may not trigger compensation)
Anatomy of a Governor’s Executive Order to Take Property during COVID
Where: New Jersey
What does the Executive Order permit?
- The New Jersey Civilian Defense and Disaster Control Act allows the Governor to permit the taking of property with compensation
- Including the state commandeering/taking personal services by the State Director of Emergency Management
How will compensation be decided for these takings?
- The Act allows the Governor to establish emergency compensation boards in each county
- Each county board will have 3 persons appointed by the Governor
Legal TREND. Close + Block Beaches to prevent COVID.
Where: Florida
Why are courts are deciding whether the Governor can be forced to close beaches statewide?
- The Governor only closed beaches in Broward and Palm Beach counties
- Local officials would like to close other local beaches
- Property Rights activists got involved
- Lawsuits ensued
- Uhlfelder v. DeSantis, Fla. Cir. Ct., 20-CA-552, 4/7/20
- Mike Huckabee, filed a federal lawsuit on Monday over local beach closures that they claim violate their privacy and private property rights.
Bloomberg Law | Florida Judge Won’t Force State Beach Closures to Halt Virus
COVID + Government Commandeering Hotel Rooms
What government actions support the government taking hotel rooms?
- Presidential Declaration included the Stafford Act authorizes FEMA to exercise the right of eminent domain to acquire both physical facilities and supplies
- California Governor’s executive order allows the commandeering of any hotel or medical facility in California and use it to treat COVID-19
Compensation? Yes, but is limited to applicable federal law, state law, or the agreement a hotel reaches with the government.
Hotel Management | Can the government commandeer hotels to fight COVID-19?
Private property regulatory TREND. COVID + Drones
Where are drones being used as a method to combat the pandemic?
- France, Italy & China use drones to monitor public places
- Chula Vista, California is using drones to communicate with people who live in remote areas
- Police in Derbyshire, U.K. has used drones to take photos of people engaged in nonessential activities like at the beauty shop
How are state legislative acts matching drone use for pandemics?
- Drones will require warrants, without an exception for pandemics in Minnesota SF 3704 (2020 | MN)
- Tennessee’s SB 1791 (2020 | TN) allows drone use by law enforcement without a search warrant to investigate the scene of a crime or to “enhance security” of public events attended by more than 100 persons. Video of public events must be posted online within 1 day.
- New Jersey Assembly bill A2301 (2020 | NJ) prohibits law enforcement from using drones for surveillance
- South Dakota bill, HB1059 (2020 | SD), signed by the governor, makes it a misdemeanor to use a drone “to kill or attempt to kill a wild bird or animal,” or to use one to locate, spot or drive prey.
Governing | Legislative Watch: The Rise of Drones During the Pandemic
TX Attorney General Opinion. Occupational Licensing of Physicians & Optometrists
KP-0297 (2020) clarifies which licensing agency has authority when a physician, a retailer and an optometrist co-exist in one space.
The takeaways:
- Physicians without a doubt can practice optometry
- just because an act is done at the physician’s direction does not create a blanket exemption from the Texas Optometry Act
- without this view, the Optometry Act is negated, an optometrist remains regulated by the Optometry Board.
Anatomy of Dallas Short Term Rental Ordinance
How did Dallas begin taxing short term rentals? When a company the City hired to collect back taxes sent bills for unpaid hotel occupancy tax to short term rental owners
How will Dallas collect the hotel tax from short term rentals moving forward?
- hosts will pay quarterly taxes
- will not allow rental apps to collect the tax like the State of Texas and other municipalities do
How will regulation move forward? A task force will make recommendations to City Council
What are the challenges?
- Distinguish between individual property owners & corporate entities operating multiple properties
- San Francisco-based Sonder intends to rent an entire 27-story apartment building in Uptown and run all 270 units as short-term rentals for 10 years
Avocate OakCliff | How will the City regulate Airbnb rentals?
TX Attorney General Opinion. Disasters + Commandeering Property.
Who is asking for an attorney general opinion? The Hood County Attorney
What questions does the Hood County Attorney want answered?
- May local governments commandeer private property under Government Code Section 418.108, when this authority is only vested in the governor under section 418.017(c)?
- Is temporarily closing business or access to a business a depravation of private property without the due course of law under the Fourteenth Amendment to the U.S. Constitution and Section 19 of the Texas Bill of Rights?
- Are the state and local executive orders unconstitutional under the Texas and United States Constitutions?
Local COVID TREND. Converting vacant buildings to homeless shelters
Where: San Francisco
What: A “swanky” tennis club slated to be redeveloped will temporarily house homeless to limit the spread of coronavirus.
TX Attorney General Opinion: Essential Business
In KP- 0296 Texas Attorney General offers this rational for including firearms sales as an essential business:
- Cities and local governments are limited by this phrase in the Texas Local Government Code: “notwithstanding any other law.”
- This prevents local governments from restricting the sale of firearms
- Texas Government Code also limits local government ability to interfere with firearm sales in times of emergency
Update to : Texas Attorney General Opinion: Essential Business? What is it?
What question will the Texas Attorney General will answer?
whether a firearm retailer is an essential business for purposes of an emergency declaration
Who requested the opinion? State Representative Dustin Burrows
New Kid on the Block. COVID 19. Connecting Small Business to Consumers.
Who: Institute for Justice Clinic on Entrepreneurship at the University of Chicago
What: www.ShopInPlaceChi.com
How does it work? Connects people to neighborhood small businesses that are still selling products essential for residents sheltering at home
Airbnb & COVID 19
Airbnb is offering “free or subsidized housing” for 100,000 people working as frontline healthcare.
How will the offer be executed?
- fees will be waived
- include new protocols around cleanliness to account for COVID-19
- minimum of 72 hours between stays
- a fund established for those who want to provide monetary support, with 100 percent of all proceeds going to nonprofits working on COVID-19 relief
- partnerships with Red Cross, the International Rescue Committee, the International Medical Corps & other non-profit groups
TechCrunch | Airbnb to provide free or subsidized housing for 100,000 COVID-19 healthcare workers
COVID-19 Shutdowns + the US Constitution = Compensation? Bonjour, the Takings Clause.
3 Reasons for no compensation for COVID-19 shutdowns?
- Precedent. US Supreme Court precedent doesn’t support it. Remember Kelo?
- Police Powers. Government has police powers to protect health & safety that are excepted from the Takings Clause
- History. During the 1918-19 Flue epidemic, the last time of a health epidemic, there was no compensation.
Reason | Does the Takings Clause Require Compensation for Coronavirus Shutdowns?
What is the Legal Footing Behind Governor Abbott’s Coronavirus Executive Order? | The Texan
Texas Attorney General Opinion: Essential Business? What is it?
What question will the Texas Attorney General will answer?
whether a firearm retailer is an essential business for purposes of an emergency declaration
Who requested the opinion? State Representative Dustin Burrows
Texas Attorney General Opinion. Occupation Battle. Do property inspectors need plumbing certification?
The Attorney General Opinion: KP-0294 (2020)
What question did the Attorney General Opinion answer? Whether real estate inspectors need regulatory go ahead from the State Plumbing Board to conduct camera inspections of sewer lines.
Why is this an issue? The Texas Real Estate Commission passed a rule requiring inspectors to also have a plumbing license & the State Plumbing Board defined service of a plumber to include camera inspections
The answer: The Plumbing Board rule goes too far because it impermissibly imposes an additional burden, limit, or condition in addition to what the Legislature has required
Regulatory Solution for the Housing Crisis: Vacancy Fines
The legislation: SB 1079 (2020 | CA)
What would SB 1079 do?
- Allow cities to impose vacancy taxes on housing that is vacant for more than 90 days
- Allow the cities to use eminent domain to use the property for affordable housing
Has this been tried another cities? Yes,
- vacancies dropped 22% in Vancouver
- Vancouver also provides the following 3 types of property owners varying exemptions from the tax:
COVID19 + Condemnations. How is this possible?
2 types of property that can be condemned under a federally declared emergency like the COVID19 declaration:
- real property for physical facilities the government may need
- supplies such as medicine, food, equipment, parts, etc.
What allows the condemnations? The Stafford Act
Lexology | Faegre Drinker Biddle & Reath LLP | Condemnation and COVID-19: When National Emergencies and Eminent Domain Collide
Local Pawnbroker Rules for Personal Property? Texas Attorney General Opinion.
Do municipalities have authority to set the amount of time a pawnshop holds personal property? No
Do municipalities have the authority to require pawnshops to electronically report personal property to law enforcement? No
Why?
- Texas Pawnshop Act preempts municipal regulation
- Section 371.005 specifically gives the Legislature exclusive authority over the operation of pawnshops
- The ordinance also expressly conflicts with administrative regulations authorized by the Pawnshop Act
Is there wiggle room for municipal regulation? yes
- municipalities can regulate things related to pawnshops that are not the operation of the pawnshop
- municipalities can reduce the amount of time pawnbrokers must retain purchased goods to less than 20 days
Airspace Easement Legislation + Eminent Domain
Where: Rhode Island
What: Specify that eminent domain can be used for airspace easements by the state Department of Transportation to remove trees and other property that obstruct incoming aircraft at the state’s five general aviation facilities
Why legislation? conform eminent domain laws to FAA mandates
Newport this week | Proposed Legislation Creates Airspace Easements
What does the eminent domain opposition to Texas High Speed Rail look like?
Why is there opposition: “People in the middle are getting all of the negative and none of the positive,”
What has Congressman Brady said? “My concern is not with the concept of high-speed rail. I just want to make sure our communities are protected.”
What would allow the company to use eminent domain? Approval from the state to operate as a railroad
What Texas Central Rail is saying about eminent domain: “Our goal is that payments go to landowners and not attorneys.”
Incentivizing the Use of Eminent Domain for Flood Zones
How is the federal government incentivizing eminent domain? By tying federal climate change funds to local governments agreeing to use eminent domain to remove homeowners from flood zones
New York Times | Trump Administration Presses Cities to Evict Homeowners from Flood Zones
Eminent Domain Bill to Support Hospitals
How would an eminent domain bill help hospitals?
- When a hospital is being sold, for bankruptcy or other reasons
- The bill would ensure hospital real estate owners can’t block hospitals from continuing to serve the community
Becker’s Hospital Review | New Jersey officials slam Alaris Health owner for blocking hospital sale
Property Rights + Animal Abuse
Illinois is proposing a court-appointed system of advocates in animal cruelty cases.
The legislation: HB 3995 (2020 | IL)
How would the court appointed animal advocates work?
- The list would be compiled by the Dept. of Agriculture
- It would include pro bono attorneys and law school clinics that can offer pro bono legal services
- The advocate would ” represent the interests of justices regarding the health or safety of the dog or cat”
Opponents say cats and dogs are a property right.
The Hill | Protecting the most vulnerable: A proposed law to create animal advocates
State Pulls Back from Short Term Rental Preemption
Where: Arizona
What: Since 2016 has had taste preemption over short term rental ordinances, chipping away at this preemption is HB 2875 (2020 | AZ)
How will HB 2875 limit preemption?
- Allow cities to limit the number of people who can occupy a house to 2 per bedroom
- Allow cities to require the installation of safety and noise-monitoring equipment
- Allow cities to require that renters use any available off-street parking
Tucson | Arizona House votes to restore some local rights to regulate short-term rentals
Local TREND. Balanced Development Plan. What is it? How does it work?
In March 2020, San Francisco, California voters approved the Balanced Development Plan to tie office space development to affordable housing goals.
What does this mean? No more available office space, if affordable housing goals are not met in San Francisco.
What did the City’s economist say about the proposition?
- it will cost the city tens of millions of dollars in revenues
- it will cost the city thousands of jobs per year
- it will limit the city’s GDP growth by tens of billions over the next 20 years
Lege: Stronger Property Rights by Disincentivizing Gun Free Zones.
If this isn’t a mouthful- disincentivizing gun free zones to strengthen property rights.
Who is saying this? A Republican Minnesota State Rep.
So what does he want to do to disincentivize gun free zones? Allow anyone injured by a gun on property that has established a gun free zone to be able to sue the property owner.
The Neighbor | Legislator’s bill would disincentivize gun-free zones
Lege TREND. New Route for Short Term Rental Legislation. Redefine RENTAL.
Where: Georgia
What is Georgia’s HB 523 (2020 | GA) goal? To differentiate between a homeowner who wants to rent out their house for a total of less than 30 days & long term rentals, for properties that are rented for cumulative periods that exceed 30 days.
How did the bill address this? By defining “short term rental” and “long term rental”
Georgia Recorder | Lawmaker rethinks bill to prevent local short-term rental restrictions
Lege TREND. Assist Mobile Home Owners to Buy Their Parks.
Where: Colorado
The legislation: HB 20-1202 (2020 | CO)
How would it work?
- Before a park owner can sell. 1 year advance notice to residents.
- Resident Opportunity to purchase. The notice to residents must include a reasonable offer for the land.
- 3 month opening to buy. for the mobile home residents
Denverite | A proposal to help mobile home owners buy their parks advances at the Capitol
Local TREND. Property Rights > Tree Protection
Where: North Smithfield Rhode island
What: City Council was considering a tree protection measure, but defeated the measure
What did opponents to the tree protection measure say?
- overreaction to a 400-acre solar project
- more difficult for landowners to take down trees on their property that pose a hazard during storms
- we don’t want to restrict how landowners use their land
The Valley Breeze | Citing property rights, council rejects law to protect trees
Anatomy of a Pit Bull Ban. Local Preemption
Where: Michigan
Is this a new issue for the Michigan Legislature? No.
The legislation for 2020: HB 4035 (2020 | MI)
The goal: Prohibit cities from enacting dog breed specific bans
What have other states done to address dangerous dogs?
- 8 states prohibit any local breed-specific regulations
- 13 prohibit breed-specific classification of dogs as dangerous
Michigan Live | Pit bull ban debate reemerges in Michigan legislature
Lege TREND. Garden Regulation.
Where: Illinois
What: HB 4704 (2020 | IL)
What entities would have regulatory authority over gardens? State and local officials
What specific regulatory authority?
- restrictions on water use during droughts
- property set backs
- maximum lot coverage
- utility safety
- fertilizer use
- invasive species control
- regulated substances like hemp and cannabis
3 Arguments Eminent Domain not for Sale in Legislation
Who: Missouri Farm Bureau
What reasons does the Farm Bureau give for eminent domain not being for sale in Missouri?
- Eminent domain isn’t for projects that enrich the owner, that’s not a public benefit
- There is no public benefit for the flow of goods or things through a state
- An eminent domain project that has no clear public benefit but pays local governments to support local public use projects is nothing more than corruption
Missouri Times | Opinion: Eminent domain is not for sale in Missouri
+1 State Right to Build Legislation
Where: Wisconsin
What does Wisconsin’s Right to Build legislation allow? owners of waterfront property would have the right to build docks and other structures even on other people’s land
How does the bill address the right to build on water front property over another’s property?
- owner of land abutting a navigable waterway “is presumed to be a riparian owner” (OWNER A)
- OWNER A is entitled to the same rights as OWNER B “even if the bed of the waterway is owned in whole or in part by another, unless those rights are specifically prohibited by the deed to the land.”
Who is backing it? Realtors
What exceptions are included?
- special protections for hydroelectric dam operators to
- deny dock requests
- charge “reasonable” fees
- impose restrictions to comply with state & federal dam regulations
WindStorm Insurance Meet WildFire Insurance.
California is considering AB 2367 (2020 | CA) would require insurance companies to cover homes in wildfire risk areas
Why is the legislation necessary? Wild fire policies are being cancelled by insurers
What else is included in the legislation in addition to the required policy coverage option?
- state will develop standards for reducing fire risks
- applies only to existing homes
- will discourage new developments in fire-prone zones
- homeowners and entire communities must “harden” properties against wildfires
California Insurance Commissioner | Mandatory Moratorium on Non-Renewals After Recent Wildfire Activity
Lege TREND. UPDATE Building without Permits Legislation.
Arizona House has passed HB 2084 (2020 | AZ) that would allow private property owners to build a wall without permitting.
The Daily Courier | Arizona House: Border-dwellers can build walls without permits
State Legislation. Border Walls on Private Property.
- January 9, 2020
Which state? Arizona
What is Arizona allowing with border walls on private property? HB 2084 (2020 | AZ) will allow:
- The goal is to preempt “overzealous local officials will block construction by erecting procedural barriers.”
- Border walls on private property would not be subject to building codes or safety inspections
- To prevent what happened in Texas when local officials were awarded a cease and desist order for a private border wall that was ultimately subject to local building & safety codes
Right to Build Constitutional Amendment in the West
Where: California
Constitutional Proposition creating the Right to Build would:
- address the housing affordability crisis
- encourage rapid building
- prevents builders from offloading costs onto 3rd party residents
- costs: necessary private roadways, roadway repairs, and/or utility connections
- costs could be born by a private associations
Lege TREND. Property Rights + Wildfire Prevention
Where: Oregon
What: SB 1536 (2020 | OR)
How does Oregon’s SB 1536 protect private property while tackling wildfire prevention?
- Creates a program for the state fire marshall to work with local non profits
- the local non profits will educate property owners on plants and clearing lower limbs on trees in a 100-foot perimeter around a home.
- There will be NO FINES. Only education.
KATU | Oregon Legislature considers bill to work with homeowners ahead of wildfire season
Eminent Domain to Stop Disease
What? China has granted 2 cities the power of eminent domain to stop the spread of Coronavirus
To acquire the property, the cities have to do 3 things:
- provide official requisition documents to the property owners
- return the items, as necessary
- compensate owners, as necessary
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