President's weekly report — August 29, 2014

August 29, 2014 | By ROB RIVETT

Property Rights — double-secret easements in Hobe Sound

Like the fictional Delta House double secret probation, the Flash Beach Grill in Hobe Sound, Florida, finds itself subject to a secret unrecorded conservation easement.  Unbeknownst to Robert and Anita Breinig, when they purchased land for their restaurant that land was allegedly burdened by a secret unrecorded conservation easement that a prior owner, two owners back, had supposedly agreed to and which the county never bothered to record.  No title search could have discovered the easement.  There were no signs on the property noticing the easement.  It was a secret from the public, absent from the recorder’s office, and known, apparently, only to the keeper of some obscure maps in the planning department. But now the County is threatening to enforce the easement with huge fines (up to $1000 per day) solely because the Breinigs are trying to use their own property for their restaurant.  As explained in more detail in our blog here, Martin County should have recorded the easement so subsequent buyers of the property would be on notice of its existence. That’s the law in Florida: easements must be recorded.    And without that recorded notice, the easement cannot be enforced.  The restaurant isn’t breaking the rules, the county is. We filed this complaint in Breinig v. Martin County seeking to put an end to such Animal House worthy double-secret easements.  You can also listen to our podcast on the case here.

Victory for school choice in New Hampshire

This week, New Hampshire Supreme Court tossed out in this decision in Duncan v. New Hampshire, a suit filed by opponents of school choice  After the state adopted a tax-credit program that allowed businesses to donate to scholarship program that students could use in any school of their choice, certain “taxpayers” sued, arguing that the chance that the children might use the scholarships at religious schools violated the state constitution.  As our blog explains, the court tossed out the suit because the plaintiffs did not prove that they had a unique and sufficient interest in the outcome to give them standing — or the right to sue.  Being a taxpayer in New Hampshire is not enough to sue a state program. We had filed this amicus brief on behalf of the sponsors of the tax-credit program.

Economic Liberties Project — Absurd Licensing Laws

We filed this opposition in Young v. Heineman to a motion for summary judgment to our challenge to Nebraska’s irrational law that requires a real estate web advertisement entrepreneur to obtain a real estate broker’s license before her service can place advertisements for homes for sale by their owners.  And in another Catch-22, even real estate brokers cannot advertise homes for sale by their owners!

Law Students — This writing contest is for you!

If you are law student and would like to put an extra $3000 in your pocket (or use to pay some of your next tuition installment) then you should consider entering our Law School Writing Competition.  We try to encourage publishable articles on subjects that are near and dear to PLF.  In the past, our winners have had their submissions published in law reviews and some winners have even been invited to join our College of Public Interest Law Fellowship program — which is, by the way, another great resource for law school graduates.