President's weekly report — November 6, 2015

November 06, 2015 | By ROB RIVETT

Property rights — mapping the property away

We filed this amicus brief in Kirby v. North Carolina supporting the rights of landowners. In a scenario common in many states, transportation agencies know they will likely be building new roads and highways, they have a pretty good idea where those roads might go, but they don’t have the budget or population density to do it today. But when that day comes, the agencies don’t want to condemn and pay for valuable developed property — especially when the property may be undeveloped and worth only a little today. So transportation agencies sometimes “map” future transportation corridors so everyone is on notice of where future roads might go.  And in the meantime, “mapped” property may not be developed in order to keep the price and disruption down.

In this case,the government of North Carolina is freezing some 4500 different properties, with a value of around $600 million dollars, indefinitely, or at least for sixty or so years. Then it might decide to buy the frozen properties. Or not.

This all makes sense — if agency budgets and convenience were to the highest end of government.  But not to the poor landowners who are often saddled with undeveloped and undevelopable property for decades.

In Kirby, the landowner is arguing this sterilization of use is a taking. Twenty-five years ago, in Joint Ventures v. Department of Transportation, the Florida Supreme Court said this scheme was an unconstitutional violation of the right of just compensation for a taking.  For more, see our blog post here.

Another opportunity for school choice

A petition for certiorari is being filed in LaRue v. Douglas County School District.  This case involves a Choice Scholarship Program in Douglas County, Colorado.  The Program provides parents of qualifying students with monetary scholarships to offset tuition at participating private schools.  The school district gives parents, whose children are accepted into the Program, a restricted check payable to the parents, but which must be signed over to the private school.  The Program was struck down in the Colorado Supreme Court to the extent that it provides scholarships to schools affiliated with a particular religion.  The Colorado court ruled that the Program violates a provision in Colorado’s Constitution, which precludes the District from including religious schools in its scholarship program.    The provision at issue is Colorado’s version of a Blaine amendment, which forbids the state from providing any funding to sectarian schools.

Similar amendments have been struck down in other states, as applied to neutral scholarship programs where the parents, not the state, determine where their children will go to school.     Three petitions for certiorari were filed in the US Supreme Court, requesting that the Court decide once and for all whether state Blaine amendments, in the context of school choice, discriminate against religious institutions, thereby violating the First and Fourteenth Amendments.     PLF participated as amicus in this case when it was before the Colorado Supreme Court and are looking to help before the United States Supreme Court as well. It should be noted that Douglas County School District, Colorado State Board of Education, and parents represented by our friends at the Institute for Justice.