Category Archives: Legal Matters

Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.
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The Consequences Of Land Ownership

“If a man owns a little property, that property is him.…it is part of him….in some ways he’s bigger because he owns it.” 
                                                              —John Steinbeck, The Grapes of Wrath

Property rights are the most fundamental institution in any economy and society. They determine who makes decisions about valuable resources and who captures the economic gains from those decisions; they mold the distribution of income, wealth, and political influence; they set time horizons and investment incentives; and they define who will take part in markets. These attributes are well recognized among economists for spurring economic growth.

But economists have missed another equally important characteristic of private property rights that has long been emphasized in philosophical, legal, and historical literatures and is captured in the quote from John Steinbeck above. Individual owners are more confident, self-reliant, and entrepreneurial than non-property owners. Where access to property is widespread, politics are more stable. Owners have a stake in the existing political regime. Moreover, people acquire property through the market and do not mobilize for forced redistribution using the power of the state through revolution and revolt. They expect property rights to be secure and view government regulation with suspicion. The use and trading of property assets is seen as a positive sum game. With broad property ownership and market participation, the state is less important than the market, and the economy in turn is less centralized, more atomistic, market-based, and supportive of entrepreneurship. This description characterizes the United States from its colonial beginnings through the 19th century and generally on to today.

In contrast, in countries where property ownership is highly skewed and access to ownership open only to elites, non-owners view things differently. Acquisition of property, wealth, and political power can only occur through capture and then enlistment of the state, as occurred in the extreme in 1789 France or 1917 Russia, or is reflected in recurrent political upheaval and redistributions characteristic of Latin America with its many disaffected populations, military revolts, and coups that have occurred since colonial times. This political uncertainty and lack of overall optimism and entrepreneurship has contributed to slower long-term economic growth than a region so rich in natural resources might have otherwise enjoyed. Why has the southern half of the hemisphere had such a different long-term experience than the northern half? Why has there been more ongoing economic growth and political stability in the North than in the South? Differences in the ownership of land is the key. Continue reading

Congress must do its own job—make laws

The Constitution gives Congress the power to make laws, but not to delegate that power to the Executive Branch. Doing so allows unelected, unaccountable bureaucrats to make rules in violation of the Non-Delegation doctrine. In Gundy, the U.S. Supreme Court will review whether Congress violated the Non-Delegation doctrine by empowering the Attorney General to unilaterally make law. PLF’s supporting brief urges the Court to revive the Non-Delegation doctrine, so Congress can no longer dodge accountability by sloughing off its lawmaking responsibilities. Continue reading

Crosscut proposes that Property Owners pay for salmon mitigation

The liberals have come up with a “new” solution to save the orcas and salmon. Rather than identifying the problem and solving it (See attached). They have launched another fund raising campaign.

To save salmon, orcas: Make landowners pay
Too few property owners are choosing to improve habitat. Their alternative should be annual payments.

Mitigation for continuing impacts could be accomplished in the form of periodic compensatory habitat enhancements on site or off site, or annual payment of a fee in lieu of physical mitigation. Calculating required mitigation for the continuing impacts of each land parcel would be a big job, but it’s feasible if done in increments.

For example, the first phase could evaluate the impacts on salmon from bulkheads and buffer clearing identifiable via remote sensing. We could then assess annual mitigation for this harm to salmon while work proceeded to evaluate other impacts. Bank hardening missed by remote sensing but identified by inspection from boats could be the second phase. The third could be evaluation of the degree to which each land parcel controls stormwater runoff as well as the presence of mature forest that controls stormwater. (That is, we would check that the runoff rate does not hurt salmon.) Additional impacts could be added to the records of parcels as the evaluation phases continue. Landowners could request site inspections and corrections of the records if they disagree with the assessments calculated from remote sensing or local property records.

This overall effort could quantify the harm to salmon being caused by each land parcel relative to other land parcels in the Puget Sound watershed, allowing equitable assessment of the annual mitigation needed from each parcel. Fees collected in lieu of physical mitigation could be used to pay for the program’s administration, fund habitat projects, and lower property taxes of land that is achieving adequate biological functions.

Read the full article
Crosscut Article by Doug Hennick dated October 15 2018

 

What Is The Bundle of Legal Rights of a Real Estate Owner?

Owning real estate carries with it a traditional “bundle of legal rights” transferred with the property from the seller to buyer. These are the recognized rights of the holder of title to the property. Continue reading

Government can’t force tenants for life

Mr. Pakdel is a small business owner in Ohio. In 2009 he bought what’s known as a “tenancy in common” (TIC) apartment in San Francisco and leased it to a residential tenant. As part of the purchase, Pakdel signed an agreement with the other owners to convert the building’s six units into condominiums. But the City of San Francisco requires that property owners doing this conversion must offer lifetime leases to any tenants. Rather than allow the city to trample his property rights by dictating the use of his own property, Pakdel is fighting the unconstitutional mandate in federal court. Continue reading

Title 2 is back under discussion

Title 2 is the county ordinance dealing with Code Compliance. It is the directive on what is and is not allowed during the course of a county investigation of a property for compliance with county ordinances.

The proposed revision  DCD_Update Title 2 July 25 2018 states “In the performance of that investigation, an authorized official may enter upon any land and make examinations and surveys, provided that such entries, examinations and surveys are carried out in accordance with all applicable laws and do not damage or interfere with the use of the land by those persons lawfully entitled to the possession thereof.”

While this segment is true it provides no guidance to the county inspectors or it’s citizens/ property owners what those rules actually are.  In absence of an emergency, service of a warrant or building permit the county needs permission to enter on a property.

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