2007

There’s still time to register for Practical Guide to Zoning and Land Use Law, to be held on April 5, in Honolulu.  Details, including the complete agenda and registration form are here. 

I’ll be leading a session on “Appealing an Administrative Zoning Decision,” in which we will go over the ins-and-outs of taking a case from a state or county agency to the courts.

Other speakers will present an overview of Hawaii’s land use and zoning scheme, how to challenge a zoning decision, and the constitutional limitations on land use regulations. 

For any inversecondemnation.com readers who attend, please stop by and say hello.Continue Reading ▪ April 5: Hawaii Land Use and Zoning Seminar

Check out this AP photo and the accompanying story “China’s ‘stubborn nail’ stands firm” —

Reminds me of the Warner Bros. classic “Homeless Hare,” where Bugs Bunny objects to a developer’s efforts to evict him from his hole: “Hey ya big gorilla, didn’t you ever hear about the sanctity of the American home?”

Wu Ping owns a home in Chongqing and apparently doesn’t want to get out of the way for redevelopment:

A legal battle has raged since she rejected the compensation offer as she has maintained that she cannot be forced to move out.

A local court ordered her to allow the structure to be torn down by Thursday, although she continued to refuse and it was not immediately clear what steps authorities would take next.

Property disputes are rife in China, often involving illegal land grabs by developers in collusion the government.

The national parliament…

Continue Reading ▪ The Eminent Domain “Holdout,” Graphically Illustrated

An interesting decision from the Kansas federal district court, Mount St. Scholastica, Inc. v. City of Atchison, No. 06-2208-CM (Mar. 12, 2007), contains a land use trifecta: historic preservation, religious objections to a denial of a permit, and regulatory takings.  (No link yet to opinion, which currently is only available via Westlaw; email me if you want a copy.  Update: Becket Fund for Religious Liberty has posted a copy of the opinion on its web site.)

Mount St. Scholastica, a “monastic community,” owns property that includes a building constructed in 1924 that has in the interim been used for classrooms, administration, and a community center.  By 1989, however, it had apparently outlived its usefulness to Mount St. Scholastica, which in 2005 sought a demolition permit from the city. 

The building itself apparently is not landmarked, but is near to historic properties, so under Kansas law, the owner needed a…

Continue Reading ▪ Land Use Trifecta: Historic Preservation, Religious Uses, and Regulatory Takings

Steven Greenhut’s opinion piece at the Orange County Register, “The powerless have always been targets of eminent domain,” makes some good points about eminent domain abuse, and the recently-argued Wilkie case (regarding the right to be free from government retailition for defending a Fifth Amendment right), and is worth reading:

“Cities use code words,” explained Supervisor Chris Norby, a longtime foe of eminent domain abuse. “In the 1950s and 1960s, governments used the term ‘urban renewal,’ but critics knew that it was widely called ‘Negro removal.’ These days, we’re looking at forced gentrification,” as cities try to redevelop poorer areas into wealthy areas.

. . . .

Today’s code words and attitudes may be different than they were in the 1920s, but by giving government so much power to drive people off their land, we all are subject to the whims and rationales of officials. In the 1920s…

Continue Reading ▪ Eminent Domain Abuse and Retaliation

Martin Kasindorf at USA Today has written a story Land-use debate ugly in paradise about the competing sides about a proposed development on Molokai:

“There is trouble in paradise,” says Annie VanEps, 59, an art gallery manager who moved from California five yearsago. “This has split our island. Can’t we have one island that’s notdeveloped?”

Opponents of the proposal say Molokai needs toguard its stoplight-free rural lifestyle and scarce water more than itneeds 200 millionaires and 100 more jobs. Wariness toward moneyednewcomers who don’t adopt Molokai’s laid-back pace can have racialovertones, too.

On the other side of the coin:

John Sabas, vice president of Molokai Ranch, says the cattle operationis losing money and needs to sell land. To win community support, theranch is offering to give control of 51,000 of its 65,000 acres to aland trust for conservation, and to reopen a resort that closed in 2000with the loss of…

Continue Reading ▪ USA Today on Hawaii’s Land Use Dynamics

Which issue is more important when it comes to utilizing scarce federal judicial resources:

  • Can a student who unfurls a sign that says BONG HITS 4 JESUS sue his principal for suspending him? 
  • Which farting plush doll is the genuine one?  Does “Pull My Finger Fred®” or “Fartman” have the exclusive right to fart and say “did somebody step on a duck?” and “silent but deadly” when its finger is pulled?
  • Can federal officials be held liable when they retaliate against a property owner who refuses to surrender an easement across his land by cancelling the landowner’s easements across public property, filing false criminal charges against him, harassing the landowner’s guests, and  “inciting a neighbor to ram his truck into the [landowner] while he was on horseback.”

I juxtapose these issues — all presented in cases argued or decided on Monday —  not to disparage the importance of…

Continue Reading ▪ Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations

While Tribe said he sensed the justices were sympathetic to his Fifth Amendment argument, they were wary of creating new ways to sue government employees.

“There is a considerable amount of hostility for the possibility of opening up the floodgates of litigation against government officials,” Tribe said.

For most other constitutional rights, there is already well-established Supreme Court precedent holding that it is unconstitutional for the government to punish people for exercising those rights. For example, prosecutors cannot punish defendants for exercising their Fifth Amendment right to remain silent. Government officials are forbidden to harass citizens for exercising their free speech rights or their rights to practice their religion. The actions that the federal Bureau of Land Management officials allegedly took to punish Frank Robbins for…

Continue Reading ▪ Links to Further Wilkie Analysis

More background on the Wilkie v. Robbins case, argued yesterday.

The Jackson Hole (WY) Star Tribune posts more details about the landowner Harvey Frank Robbins in this story, and sums up the issue before the Court:

Among other considerations, the high courtwill have to decide whether the 5th Amendment, like the 1st and the4th, protects citizens from unlawful retaliation for exercising apresumed right.

I’d say that’s just about so.  It should seem unremarkable that the express personal right of property is as much a part of the Bill of Rights as other, perhaps more familiar constitutional rights such as free speech, a free press, and freedom of belief.  It’s all right there in the Fifth Amendment, which provides “nor shall private property be taken for public use, without just compensation.”  The personal nature of the right is reinforced by the Fourteenth Amendment, which provides “nor shall any…

Continue Reading ▪ More on Wilkie: Is Property A Personal Constitutional Right?

While there was much more attention devoted to today’s argument in the school free speech case, another appeal argued today — Wilkie v. Robbins — deserves some light since it addresses a core constitutional issue: can the government retailiate against a property owner for refusing to surrender a Fifth Amendment right? 

Whether “BONG HITS 4 JESUS” is protected by the First Amendment may be important (and certainly more headline-grabbing), but landowners and regulators should pay special attention to Wilkie, as it may be as critical is 2005’s infamous Kelo decision.  The transcript of the oral arguments is posted here.  The Solicitor General’s office argued for the BLM officials; Professor Laurence Tribe argued for the landowners.

In Kelo v. City of New London, a bare majority of the Court held that a property owner is nearly powerless to object to a government demand that she…

Continue Reading ▪ Property Rights in the Supreme Court: Today’s Argument in Wilkie