President's weekly report — March 27, 2015
Eminent domain — New Jersey Supreme Court abandons precedent
In this 3-2 decision, the New Jersey Supreme Court upheld the use of eminent domain in 62-64 Main Street v. Mayor and City Council of the City of Hackensack. The question here is how much blight is just pretext and how much is really enough to justify condemning property for redevelopment. We filed this amicus brief, along with the National Federation of Independent Business, Institute for Justice and Professor Ilya Somin arguing for a meaningful blight standard. Several years ago, the New Jersey Supreme Court held that for a condemnation to be justified by a blight finding, the government must prove the property both has “deterioration and stagnation” and “negatively affects surrounding properties.” The three member majority here adopted a rather lenient “either-or” standard for properties deemed “in need of redevelopment.” Two dissenters accused the majority of abandoning precedent. In the words of the dissent, “Today, the Court permits privately owned property to be designated for redevelopment — and ultimately for a taking — even though local officials have not found that the land has a negative effect on surrounding properties. … The Court’s responsibility, though, is to apply the law in accordance with the Constitution and protect the individual rights our Constitution guarantees. Those rights serve as an important check on the power of eminent domain and extend to residents, homeowners, and businesses that do not want to be removed from their property and community against their will.” For more, see our blog post here.
Property rights — Settlement in North Carolina
We learned today that the Town of Nags Head has settled with our former client Roc Sansotta in his beach property takings case rather than go to trial. The town will pay him $1.5 million. Sansotta will in turn hand over title to his 6 dilapidated cottages to the Town, which will then tear them down to make the land part of the public beach.
This settlement was negotiated by local counsel following PLF’s work in saving the case and sending it to trial. Three years ago Sansotta had vacant, damaged and unusable beach cottages due to Town actions, was subject to hundreds of thousands of dollars in civil finesfor refusing to remove his cottages. He sued the Town but lost his suit in district court under Williamson County.
Then came PLF. We won Sansotta’s appeal in the Fourth Circuit. Then we continued to represent Sansotta after his case got sent back to the trial court. There, we defeated the Town’s claim for civil fines on due process grounds, and beat back its summary judgment on the takings claims in district court, forcing it to face a takings jury trial -where it stood to lose millions of dollars. At that point, the case was handled by local trial counsel.
Property rights — Public trust doctrine in Indiana
The Indiana Court of Appeals issued this decision in LBLHA, LLC v. Town of Long Beach. In a nutshell, Indiana has begun to take an aggressive approach to the public trust doctrine, claiming that it supersedes the rights of lake front owners. In other words, it is arguing that the public can traipse across what was once considered private beachfront property. When the Town of Long Beach stopped enforcing its trespass ordinances, the lakefront owners sued. When the owners sought to bring the state into the case, the trial court refused. We filed this amicus brief suggesting that the public trust doctrine cannot be expanded by government whim. The Court of Appeals reversed. As our blog explains, this week’s decision represents a victory for the property owners.
Property rights — Compensation for lost access
We filed this amicus brief in Alderwoods v. Oregon Department of Transportation before the Oregon Supreme Court. As our blog explains, after Alderwoods property was taken for a highway project, the Oregon Department of Transportation tried to prevent the introduction of evidence of the loss of use and value caused by the blocking of Alderwood’s access to a public road. Quite obviously, the loss of access can have severe adverse impacts to commercial property. So the state’s attempt to keep such evidence out is simply an affront to the constitutional guarantee of just compensation.
Wetlands enforcement — Government loses another motion
The trial court rejected the government’s latest motion to dismiss our complaint in Duarte v. Corps of Engineers. As our blog post explains in more detail, Duarte has sued the Corps after the Corps sent out a “cease and desist” letter ordering Duarte to stop farming because he had allegedly disturbed wetlands. Duarte is supposed to “restore” the property and spend up to a few hundred thousand dollars seeking a permit. Duarte would rather litigate the basic question of whether he did indeed harm any wetlands before wasting time and money for a permit that isn’t necessary. The first time the government moved to dismiss, it claimed that telling Duarte to “cease and desist” under threat of fines and incarceration was not really an order, but a merely a friendly suggestion. The court didn’t buy it. This time, the government argued the case was moot, because there was no more harm being done to Duarte — after all, he had voluntarily stopped farming when he received the order. The court didn’t buy that one either. The case should now proceed to trial.
Wetlands — Government wins one
The Supreme Court this week denied our petition for writ of certiorari in Kent Recycling v. Corps of Engineers. That’s the case where a landowner has been arguing it is not required to obtain a permit to use property that is subject to an agricultural exemption. The owner has been seeking judicial review of the Corps decision that the property is subject to its jurisdiction, despite the exemption. There were a number of amicus briefs in support of our petition, including one from Senator Vitter. Despite the denial, we will continue to press this issue in other cases until the Court takes up a case and rules that landowners are entitled to judicial review of Corps wetlands determinations without first having to spend a small fortune and years to obtain a permit — and where the permit might not be required in the first place.
Equality under the law project — Adverse Supreme Court opinion
The Supreme Court issued a narrow but negative decision this week in Alabama Legislative Black Caucus v. Alabama. PLF filed this amicus brief before the Court. The plaintiffs here challenged Alabama’s 2010 redistricting plan as an unconstitutional racial gerrymander. We filed this amicus brief, arguing that racial classifications must always be subject to strict scrutiny. The majority here turned back the case on procedural grounds and did not reach the merits. For more on this, see our blog post here.
Equality under the law project — adverse district court decision
The trial court issued an adverse decision in Midwest Fence v. United States Department of Transportation. We had filed this amicus brief arguing that racial preferences in government contracting such as the ones here fail the strict scrutiny test that should apply to all instances of government sanctioned discrimination. An appeal is expected.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›