President's weekly report — December 12, 2014
Property Rights — California Coastal Commission
The California Coastal Commission has never been happy with our 1987 victory in Nollan v. California Coastal Commission where the United States Supreme Court held that its practice of demanding exactions in exchange for development permits to be “an out-and-out plan of extortion.” For years, commission staff gave speeches blasting PLF and the Court for destroying the “commutarian spirit” of the State. And, whenever possible, the Commission tries to ignore or sidestep the ruling, hoping that landowners will often just give up and give in, rather than fight. Thus in Lynch v. California Coastal Commission the Commission demanded that in exchange for a permit to rebuild a storm-shattered seawall, the owners had to agree to tear the wall down in 20 years – or obtain a new permit. And in exchange for rebuilding a private stairway across private property to the beach, the owners had to agree to open up the stairs to the public. After a divided lower court upheld these conditions, the California Supreme Court this week granted review. For more, see our blog post here.
Property Rights — And a property in our rights — but not in the 11th Circuit
James Madison once famously wrote in an essay that “as a man is said to have a right to his property, he may be equally said to have a property in his rights.” The essay continues with an enumeration of a vast and dynamic understanding of what property is — to include everything from our opinions to our occupations. And Madison along with the other drafters of the Bill of Rights wrote that no person shall be “deprived of life, liberty, or property, without due process of law.” Under Florida law, riparian landowners have a right to build a dock, subject of course to reasonable regulation. So when Sanibel Island prohibited all new docks, a landowner sued, claiming that the denial violated his right of due process. But the 11th Circuit ruled in favor of the town, saying that the because the property right at issue here was defined by Florida law, it was not a fundamental right protected by the Constitution! Thus in Kentner v. Town of Sanibel Island, we’ve asked the United States Supreme Court to review this decision in order to ensure that the Constitutional protection of “property” is not destroyed based on the crabbed notion that property isn’t property if it’s defined by state law. This week we filed our reply brief. For more detail, see our blog.
Property Rights — Plan Bay Area
We filed our opening brief in Bay Area Citizens v. Association of Bay Area Governments, our challenge to the highly flawed “Plan Bay Area” the overarching plan designed to force communities to “stack and pack” residents into super high-density high rises next to transit hubs. The purported result of this will be a lowering of greenhouse gas emissions; but the plan ignored all the tailpipe pollution regulations that will accomplish similar reductions without the pain of turning neighborhoods into Manhattans-by-the-Bay.
Equality Under the Law Project
In Texas Department of Community Affairs v. Inclusive Communities Project, oral argument has been set for January 21, 2015, in this United States Supreme Court challenge to the use of “disparate impact” theory in the enforcement of the Fair Housing Act.
Tort Reform — Turning from deep pockets to just about anyone’s pockets
We filed this amicus brief in In re New York City Asbestos Litigation. As explained here in our blog, it seems that plaintiffs lawyers are running out of defendants to sue in asbestos litigation suits, having run just about anyone with anything to do with asbestos into bankruptcy. So they are about done looking around for businesses that actually mined or used or touched or promoted or handled or repaired or managed or distributed or sold or bought or traded or bartered or manufactured or [add your favorite action verb here] asbestos or any product containing asbestos. Instead they are casting about for folks who made things that contained zero asbestos but could have been used with asbestos. Thus in this case, Crane Company manufactured valves out of metal that were used in Navy boiler rooms. The equipment in these boiler rooms, including some of Crane’s all-metal valves, were insulated with asbestos by the purchasers of the valves. Crane never added or touched the insulation. But because Crane didn’t recommend that people buying its valves not use asbestos (the insulator of choice for decades) a jury found it 99% responsible for injuries to workers. Why 99%? Presumably because there is no one else left to sue. As our brief asks, what’s next, will jam and jelly makers have a duty to add warning labels about peanut allergies? We’re hoping that our brief will promote a restoration of sanity to this broken system.