January 22, 2015

NY and NJ courts both reject property rights

By Mark Miller Senior Attorney
Not the Statue of Big Government

Property owners in New York and New Jersey learned again this week that their state courts often reject property rights in favor of creative ways to take private property in a manner that violates the Fifth Amendment.

In New York, the court upended a centuries-old settled question of law in the case of Friends of Thayer Lake, LLC v. Phil Brown. The Brandreth family has owned thousands of acres of real property deep in the Adirondacks since 1851. For the more than a century and a half that the Brandreths owned this land, New York law held that the Brandreths owned the non-commercially navigable streams within that land.

But in 2009, a trespasser decided to traipse across their private property and canoe through portions of the streams, and walk across the Brandreths’ property when the streams became too rapid. Based on that rather preposterous series of facts, an appellate court in the state of New York concluded that these streams were now—presto change-o!—public property. In a remarkable footnote, the court acknowledged that everyone would have understood in 1851 that the Brandreths owned the streams, and that further they recognized that their decision “may destabilize long-established expectations as to the nature of private ownership.”

Pish posh to readers who think a court “destabilizing long-established expectations as to the nature of private ownership” should give that court pause. After all, how often does a court get to overturn hundreds of years of settled law? And transfer property from private owners to public trespassers at the same time?

So that’s the state of things up the Hudson.

Unfortunately, it doesn’t get much better south of the Hudson, either. In Griepenburg v. Township of Ocean, the New Jersey Supreme Court held that a local government can zone a property in a manner to benefit everyone else but the property owners, and those property owners can do little other than afterwards ask their government to ignore the very zoning it imposed specifically to limit their property in the first place, and grant them a variance.  Frankly, the court’s suggestion reminds me of a scene from Animal House.

Pacific Legal Foundation filed an amicus brief supporting the New Jersey property owners in this case last summer.  PLF hopes these property owners pursue their local government in court for unconstitutionally taking their property by way of this targeted zoning scheme, as PLF explained in the pages of the Newark Star-Ledger earlier today

Believe it or not, New York and New Jersey once fought over ownership of the Statue of Liberty. They both may want to own her, but neither state apparently understands what she means. PLF will continue to remind the courts of those states, and the other 48, that Lady Liberty stands for freedom from big government, not subjection to it.

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