February 10, 2018

Weekly update — February 10, 2018

By James S. Burling Vice President for Litigation
  • Coastal Property Owners argue that they do not need to jump through meaningless hoops to vindicate their rights
  • Eleventh Circuit hears PLF in takings case
  • Does forcing phone-sellers to post misleading warnings about their phones violate their free speech rights?
  • Washington’s assault on property rights will stand – for now.
  • PLF and supporters respond to Seattle’s defense of its war on landlords
  • Increasing Access to Federal Courts: Petition to Reform CA Bar Membership Requirement
  • Santa Barbara demands protection for speech…about its own unconstitutional actions

Coastal Property Owners argue that they do not need to jump through meaningless hoops to vindicate their rights

This week in Mark and Bella Greene v. California Coastal Commission, PLF filed an opposition to a Coastal Commission request to dismiss one of the Greenes’ claims in their lawsuit against the commission. A few years back, the Greenes bought their future retirement home in Playa Del Rey, Los Angeles, and planned to make some renovations. The Coastal Commission stalled those plans, imposing several conditions on the couple in exchange for a coastal development permit. One of those conditions required the Greenes to waive their right to ever build a shoreline protection device to protect their home, a right granted to them by the California Coastal Act. The Commission argued that the Greenes cannot litigate this condition because they failed to object to the condition at a hearing. Yet the Commission has imposed a similar condition on nearly every coastal property owner who sought a permit over the past few years, even when the property owner objected. The Greenes should not be required to make a fruitless objection in order to bring a lawsuit against the Commission.

 

Eleventh Circuit hears PLF in takings case

Chmielewskis’ one-story home and part of the beachfront parcel that has been invaded by the general public as part of the City of St. Pete Beach’s illegal take.

On Tuesday, the United States Court of Appeals for the Eleventh Circuit heard oral argument in Chmielewski v. City of St. Pete Beach. It is unusual for that court to allow an amicus curiae (friend of the court) to participate in oral argument, but the court allowed a PLF attorney to argue in support of property owners who just want to be paid for what the government took from them.  In this case, the City of St. Pete Beach invited the public to use the Chmielewski’s private property, but then denied any culpability. On Tuesday, the panel asked probing questions that indicate the three-judge panel understands that government must pay just compensation when it authorizes the public to use private property.  That the court allowed PLF to participate in oral argument speaks volumes about PLF’s excellent reputation for litigating in support of property rights. Read the amicus brief or the case page to learn more.

 

Does forcing phone-sellers to post misleading warnings about their phones violate their free speech rights?

Although the Federal Communications Commission adopted extremely protective cell phone radiation requirements and mandates warnings to consumers, it’s not enough for Berkeley’s city council. The city passed an ordinance requiring cell phone retailers to provide poster-sized warnings to consumers about cell phone radiation. CTIA, the trade organization for the retailers, sued because the misleading, mandated warnings violate the retailers’ First Amendment right to refrain from parroting the government’s preferred, alarmist speech. The Ninth Circuit rejected their claims and the retailers petitioned the Supreme Court to hear the case. As detailed on the blog, PLF filed an amicus brief supporting the petition in CTIA v. City of Berkeley.

Washington’s assault on property rights will stand – for now.

Earlier this week, the Washington State Supreme Court denied review of the very troubling appellate decision in Olympic Stewardship Foundation v. State of Washington Environmental and Land Use Hearings Office, in which PLF submitted this amicus brief. The appellate decision upheld an ordinance that requires all shoreline property owners to dedicate a 150-foot buffer as a mandatory condition on any new development. To reach that result, the appellate court ruled that, in adopting the Shoreline Management Act, Washington’s legislature rendered property rights “secondary” to the public’s interest in the environment—a position that conflicts with U.S. Supreme Court case law, including Palazzolo v. Rhode Island which recognized that states cannot extinguish property rights simply by enacting a law. The court also ruled that, when a lot is subject to regulation, the owner will have no fundamental, constitutionally protected right to make a reasonable economic use his or her property. The court, apparently, was not aware that the U.S. Supreme Court put this notion to rest nearly a century ago in Village of Euclid v. Ambler Realty Co. Based on these rulings, the court unsurprisingly denied a citizen group’s challenge that the buffers were not adequately supported by the scientific record and took more property than necessary to mitigate for any negative impacts caused by the regulated property. For more, see our blog post here.

PLF and supporters respond to Seattle’s defense of its war on landlords

PLF filed its response to Seattle in Yim v. City of Seattle, where we are challenging a Seattle ordinance that bans landlord choice over their tenants. Under the city’s “first-in-time” rule, landlords must offer their rental property to the first person who applies so long as they meet basic rental criteria like a credit score. This sweeping ban on basic judgment calls violates due process and core property rights. The Rental Housing Association of Washington also filed a brief in support of our suit.

Increasing Access to Federal Courts: Petition to Reform CA Bar Membership Requirement

Under the current rule adopted in 1995, membership in the District Court for the Northern District of California is restricted to members of the State Bar of California. California does not grant reciprocity to allow attorneys from other jurisdictions to be admitted to the California Bar on motion. Hence any attorney wishing to be admitted to the California Bar, for the purposes of practice within the state or just to conduct business in one of the state’s federal district courts, is forced to sit for the notoriously onerous California Bar Examination. We filed this petition, along with a diverse group of legal organizations and attorneys, urging the District Court for the Northern District of California to amend its local rule to eliminate the California bar admission requirement.

Santa Barbara demands protection for speech…about its own unconstitutional actions

Represented by PLF, the Santa Barbara Association of Realtors challenged a rule promulgated by the Santa Barbara City Council that requires homeowners wishing to sell their homes to waive their Fourth Amendment rights by allowing inspection of their property by a city worker preparing a Zoning Information Report (ZIR). Predictably the City responded by filing a demurrer, or motion to dismiss the association’s case. But that is not all. Surprisingly, the City also filed an anti-Strategic Litigation Against Public Participation, or anti-SLAPP motion, alleging that the basis for the suit is not resisting the imposition of an unconstitutional condition on the people of Santa Barbara, but a desire to stop the City from exercising its “free speech rights” to tell potential home buyers about the inspections through ZIR forms! We filed a response in opposition to the City’s demurrer, and a response to the City’s meritless anti-SLAPP motion.

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