Category Archives: Pacific Legal Foundation

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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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

City apologizes after violating First Amendment rights

What started as artistic expression in Mount Dora, Florida, escalated into a bureaucratic nightmare for Nancy Nemhauser and Lubomir Jastrzebski. When the couple painted a van Gogh-style “The Starry Night” mural on a wall outside their house, the city declared the art “graffiti” because it didn’t match the color of the house. But when Nancy and Lubomir responded by painting a similar mural on the house, the city branded both as illegal “signs,” and fined them hundreds of dollars per day with orders to paint over the mural. On behalf of Nancy and Lubomir, PLF is challenged the city. We argued that banning such artistic murals is an abusive interpretation of the city’s sign ordinance, and violates the First and Fourteenth Amendments. In July 2018, Nancy and Lubomir declared victory when the city council voted to settle the lawsuit and allow the mural to remain. Continue reading

Can an administrative agency strip you of your right to put on evidence?

How to destroy constitutional rights:
Step 1: Force property owners to try their cases before an agency that CAN’T DECIDE constitutional issues.
Step 2: If the property owners appeal to a court that CAN decide them, just block the owners from submitting ANY evidence about them.

In Washington state, property owners who want to challenge the constitutionality of a new land-use or critical area restriction must first try their case to the Growth Management Hearings Board—an administrative agency that lacks the authority to decide constitutional issues. Although this requirement was meant to streamline the ordinary types of legal challenges arising from land-use regulation, it is a frustrating and often futile endeavor for anyone asserting constitutional claims. A recent decision from a Washington trial court took that process from the realm of the frustrating to the unconscionable.

In 2014, the City of Bainbridge Island recently adopted one of the most aggressive shoreline protection ordinances in the State. Among other onerous provisions, the City enacted laws forbidding homeowners from gardening without permit approval and generally declaring “all human activity” within 200 feet of a shoreline illegal without government approval. Back in 2014, several shoreline residents challenged the ordinance as violating a number of constitutional provisions in the case Preserve Responsible Shoreline Management v. City of Bainbridge Island.

The case went to the Growth Board first, which unsurprisingly upheld the ordinance against PRSM’s statutory challenges. The case then went to the superior court to hear PRSM’s constitutional claims. That’s where things went terribly sideways. Several of PRSM’s constitutional claims require evidence of the ordinance’s impact on fundamental rights. That type of evidence can be very simple. For example, PRSM offered a brief statement from a local resident that gardening and landscape design is expressive conduct—a statement that could be accomplished in a 3-page declaration.

The City, however, argued that because the case was technically “on appeal” from an administrative agency, PRSM had no right to put on any evidence of its constitutional claims. PRSM called the City out on its nonsense, pointing out that every citizen has a right to put on evidence necessary to prove the elements of a constitutional claim when that claim is properly raised for the first time before the court that has exclusive and original jurisdiction. Without addressing this argument (or the law requiring evidence), the trial court refused to allow PRSM to submit any evidence.

PLF attorneys sought immediate appellate review of the trial court’s decision because trying its constitutional case without the ability to offer the evidence required would be futile. PLF argued that fundamental notions of due process demand that litigants be provided a fair opportunity to put on evidence. The fact that land-use challenges must go through an administrative agency before they can be filed in the superior court does not strip individuals of that fundamental right. Earlier this week, the Court of Appeals granted direct review of this important question. We expect the issue to be briefed and argued by the end of the year.

Pacific Legal foundation Article by Brian Hodges

Supremes examining city’s decision to take woman’s private land

The Supreme Court has agreed to take a case in which a town has threatened to turn a woman’s private 90 acres into public property.

The justices said Monday they will hear arguments in the case Knick v. Scott Township, on which WND reported last year.

The Pennsylvania dispute developed when Scott Township officials abruptly adopted an ordinance that requires landowners to open their property to the public if there are claims that a historical gravesite exists on the land.

The 90 acres owned by Rose Mary Knick has been in her family for half a century, and someone claimed there was on old gravesite on the land.

No proof was necessary, according to the law, which requires that the landowner provide daily public access to the site.

Knick went to court, but the state courts said they won’t act because the township said Knick shouldn’t worry, because officials won’t enforce any requirement against her.

Federal courts said that by precedent they cannot act until state courts do.

“Police State USA: How Orwell’s Nightmare Is Becoming Our Reality” chronicles how America has arrived at the point of being a de facto police state, and what led to an out-of-control government that increasingly ignores the Constitution. Order today!

“Scott Township’s graveyard law forces property owners to allow warrantless searches by government and unbridled trespassing by the public,” said Pacific Legal FoundationSenior Attorney J. David Breemer.

The case puts the court into one of the thorniest areas of property rights.

Back in 2012, the township adopted an ordinance requiring owners of cemeteries to allow public access. Officials contend there’s a “cemetery” on Knick’s land.

State courts refused Knick’s plea for help because the town “had withdrawn its notice of violation and agreed not to enforce the law,” an analysis said. But the requirement still would exist and could be enforced at any point.

Federal courts then said a state adjudication was required before they could act.

Knick’s land is used for grazing for cattle, horses and other animals. It’s bounded by fences, stone walls and “No Trespassing” signs.

“There is no cemetery mentioned in the chain of title going back hundreds of years,” said Pacific Legal Foundation, which has won numerous property rights cases at the Supreme Court.

“Nevertheless, in 2013, a town enforcement officer entered the property searching for graveyards. Soon after, Ms. Knick was issued a notice of violation claiming her property contained an old burial ground that had not been kept open to the public. She later received a second notice of violation.”

Knick said: “It was unbelievable that the town would trample all over my rights this way, making it open season for trespassing on my land. I am very hopeful that the Supreme Court will take a stand for the Constitution, and for everybody’s property rights, by striking down this outrageous law.”

Isolated grave sites are not uncommon in parts of the country where there is no ban on burials on private ground. And, indeed, sometimes burials date back to before rules and regulations were in place. So the plains of Pennsylvania contain small burial plots for families.

However, the records don’t show any such location on Knick’s land, PLF said.

The township simply adopted procedures for its “code enforcement” agents to search her land without permission, and while trespassing, they claimed to have found stone evidence of burial plots.

The lower courts then decided the township had created a “right of way” for the public.

The demand for access to Knick’s land came after an anonymous “citizen inquiry” claimed there was a burial ground there.

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People for the Ethical Treatment of Property Owners

In Utah, the Federal Government Puts Prairie Dogs Over People

The question for the U.S. Supreme Court is whether protecting rodents counts as ‘interstate commerce.’

In southwestern Utah, federal regulations are artificially pitting people against prairie dogs—to neither’s benefit. There are about 80,000 Utah prairie dogs in the region, and the species is listed as threatened. State biologists would like to move the creatures from backyards and playgrounds to public conservation lands, but that’s forbidden under federal rules. The result of the regulations has been conflict but little progress toward lasting recovery for the species.

For years, towns like Cedar City have been stuck in what Greg Sheehan, principal deputy director of the Fish and Wildlife Service, has called “a quagmire of federal bureaucracy.” Washington’s heavyhanded regulations make it a crime for these Utahns to do things that the rest of us take for granted, like building homes in residential neighborhoods or starting small businesses. Cedar City can’t even protect its playgrounds, airport and cemetery from the disruptive, tunneling rodent.

Tired of being ignored, local residents banded together to form People for the Ethical Treatment of Property Owners. The group, represented by the Pacific Legal Foundation, filed a lawsuit in 2013 arguing that the federal regulations were unconstitutional. Where did Congress get the power to pass such intrusive rules? Whenever this kind of question arises, the stock answer is the Constitution’s Commerce Clause, which allows lawmakers to regulate commerce “among the several States.” But this species of prairie dog is found only in Utah, and it has no conceivable connection to interstate commerce. Continue reading

California City Asserts Right to Search Residence Without Warrant

‘Putting your home on the market should not mean mortgaging your constitutional rights’

Real estate agents in Santa Barbara, California, are suing their city over a law that gives city inspectors full access to homes, arguing it violates the U.S. Constitution’s Fourth Amendment privacy protections.

“Santa Barbara singles out home sellers and coerces them into giving up their vital Fourth Amendment privacy protections,” said Meriem Hubbard, a senior attorney for the Pacific Legal Foundation.

“They’re pressured to allow city agents to roam through their living rooms, kitchens, bedrooms, closets and attics without any evidence that the house has any problems,” he said. “Putting your home on the market should not mean mortgaging your constitutional rights.”

Hubbard said Santa Barbara’s “targeting of home sellers for searches and snooping must end, and the unconstitutional law that sanctions it must be struck down.”

The Fourth Amendment protects citizens against unreasonable searches and seizures. It’s why police must have a warrant or other legal adjudication to enter a residence.

But in Santa Barbara, the city law “requires home sellers to apply for a zoning inspection report and pay a $475 fee for the inspection process within five days of a sale agreement.”

“The inspections are open-ended, covering a variety of city codes – even though the Zoning Department staffers who conduct them aren’t licensed as building inspectors or surveyors,” the legal team argued. Continue reading