Tag: property rights

The Rule of Law and Property Rights

Respect for the rule of law cannot simply mean a moral obligation to obey legislation. History is replete with too many examples of tyrannical legislation for that notion to pass muster. But if the rule of law does not mean obeying whatever legislators enact, what does it mean?

Murray Rothbard argued that this question must be answered by reference to ethical guidelines, which he constructed around the concepts of self-ownership and property rights. Rothbard conceptualized property rights as inalienable and absolute natural rights. Seen in that light, eminent domain legislation is unethical and unjust. The example of New York illustrates the significance of this point, as explained by the Institute for Justice:

“In New York, eminent domain gives the government the power to take your property, even if you don’t want to sell. But under the Fifth Amendment, eminent domain must be for a ‘public use,’ which traditionally meant projects like roads or bridges. Meanwhile, the government must pay the owners ‘just compensation’ for their property.

“Unfortunately, the U.S. Supreme Court gutted federal protection against unconstitutional eminent domain when it handed down its decision in Kelo v. New London in 2005. By a vote of 5-4, the Supreme Court dramatically expanded the definition of ‘public use’ to include private economic development. In other words, local governments can condemn homes and businesses and transfer them to new owners if government officials think that the new owners will produce more taxes or jobs with the land.

“As Justice Sandra Day O’Connor warned in her dissent: ‘The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.’”

South Africa has gone even further with its expropriation laws, by providing in its constitution that “public purpose” can include anti-racism, equity and protection of “vulnerable groups.”

“In terms of section 25(4)(a) of the Constitution ‘public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources.’ Section 25 (8) further states that the state may take ‘legislative steps and other measures … in order to redress the results of past racial discrimination.’”

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The Chevron decision may also apply to federal land policies in the West

By now most who watch such things are familiar with the opinion issued by the Supreme Court in the case Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. on June 28, 2024. Loper overturned an opinion issued by the court in 1984 titled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.

The Chevron “precedent” required federal courts to defer to federal agency interpretations of law when the law at issue was ambiguous and, therefore, subject to interpretation. The effect of the Chevron “precedent” was to transfer certain authority for statutory interpretation away from the court and deposit it in the hands of unelected and, therefore, unaccountable bureaucrats. Stated otherwise, Chevron tended to reverse the role of the court in the process of “judicial review” which was established in 1803 in the case Marbury v. Madison.

Since Congress has a particular knack for writing vague or ambiguous law and letting the agencies “figure it out,” the Chevron “precedent” is said to have transferred substantial quasi-judicial power to agency staff at the expense of the judicial role. Chevron is, therefore, credited with accelerating growth of the “administrative” or “deep” state — a “shadow government” of sorts functioning, in effect, according to its own interpretation of its enabling statutes.

The point to be made here is that the Chevron ruling arguably represented a measurable breach of constitutional structure, as that structure was established by the court in Marbury v. Madison. The effect of this breach may be likened to the breach of a dam impounding a river. With this breach of constitutional structure, an unelected shadow government, arguably extraconstitutional and with expansive powers, unleashed a regulatory flood upon the land.

After 40 years, the Loper ruling has righted this historical wrong. The net effect of this remedy is that Congress will be compelled to exercise its legislative authority with greater particularity, agency staff will be disinclined to engage in regulatory adventurism, and the impartial interpretive role of the court is substantially restored. As more precise laws must now be made through the legislative process, thereby restricting regulatory latitude, democracy itself is substantially restored. However, in the nature of a wounded beast, these restorative consequences have given rise to shrill wailing and charges of “judicial power grabbing” coming from those whose power has been diminished.

Now bring this narrative around to the matter of federally owned public lands. An impartial review of the formative history of the federal territorial system will affirm two essential facts.

First, congressional authority for establishment of local governments within federal territories is derived from the Northwest Ordinance, not from the treaty power of the United States or from congressional Property Clause authority as originally maintained by the court in the case of Sere v. Pitot. Under authority of the Northwest Ordinance, Congress is authorized to establish and supervise temporary local territorial governments, but it is not authorized to be the local municipal government over them. From Benner v. Porter, “[Territorial governments] … are the creations, exclusively, of the legislative department, and subject to its supervision and control.”

Second, the Property Clause is a delegation of constitutional authority and duty to dispose of federal territorial and public lands. “The power being given, it is the interest of the nation to facilitate its execution,” according to McCulloch v. Maryland, speaking of constitutionally enumerated federal powers.

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Fight Erupts When City Takes Private Property for ‘Park’

A fight has erupted over a decision by the Long Island town of Southold to take private property that the owners of a chain of hardware stores bought for a new location.

The problem is that the town took the land against the wishes of the owners using eminent domain, but it had no legitimate reason for doing that.

According to officials at the Institute for Justice, that’s known because the city insisted it needed the land for a “park,” but that turned out to be a “passive park” with no cleanup, no improvements, and the remnants of an old home and greenhouse left there.

The IJ explained, ‘When every legal effort to stop someone from using their property has failed, can the government simply take the land using eminent domain? That is the question at the heart of a new U.S. Supreme Court petition filed by a family-owned hardware store business whose property was taken by a small Long Island town.”

It is the Brinkmann family whose members already have five Long Island stores and obtained the Southold property for another.

“The town did everything it could to stop construction. After failing to drive the Brinkmanns away by attempting to interfere with the Brinkmanns’ land purchase, then imposing an exorbitant fee for a market impact study that the town never performed after being paid, and even deploying a selectively enforced moratorium on building permits to stifle the Brinkmanns’ permit application; the town voted to take the land by eminent domain for a park,” the IJ said.

At the 2nd U.S. Circuit Court of Appeals, the judges said, “the government can take your property for almost any reason at all—including because it just doesn’t like you—so long as the government lies about why it is using eminent domain,” explained IJ lawyer Jeff Redfern.

“This is a dangerous precedent, and the Supreme Court should take this opportunity to clarify that it is unconstitutional to use eminent domain in bad faith, simply to stop someone from making a lawful use of their property.”

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Zoning Regulations Empower Control Freaks—and Bigots

Imagine you’re a member of a religious minority that’s on the receiving end of a lot of hate, and the local zoning board is giving you a hard time over plans to expand your house of worship. Is it regulators being their nitpicky selves? Are the neighbors weaponizing rules to squeeze out the cars and foot traffic that accompany any successful endeavor? Or could it be hostility directed at your faith? Zoning has been used and abused in all these ways, which underlines the need for reform.

Bigotry Through Red Tape

“A proposal to dramatically expand Harvard Chabad’s Banks Street headquarters failed to win approval from the Cambridge Board of Zoning Appeals during a contentious Thursday public hearing,” The Harvard Crimson reported last week. “The rejection leaves the Jewish student organization to revise and clarify the proposal before a follow-up hearing in June.”

Harvard Chabad’s Rabbi Hirschy Zarchi told me that opposition to the group’s expansion has featured many “inappropriate comments” including suggestions that the group is “too visibly Jewish.” Other criticism, he says, is more “classic NIMBY,” though it sometimes touches on the nature of Chabad in the former of objections to the presence of security often required by Jewish organizations after October 7.

Zarchi and company aren’t alone. Just last month, the U.S. Department of Justice warned officials in Hawaii about their efforts to block operation of a Chabad house. The plaintiffs in a lawsuit against Hawaii County “have established a likelihood of success on the merits” of their claims of bias, according to Kristen Clarke, assistant attorney general of the U.S. Justice Department’s Civil Rights Division.

Part of the problem in Cambridge could be general opposition to houses of worship, which draw crowds but don’t generate much money for revenue-hungry governments.

“Many land-use disputes aren’t about explicit bigotry,” Emma Green wrote in 2017 for The Atlantic. “They arise from concerns about noise, lost property taxes, and Sunday-morning traffic jams. The effect is largely the same, and can be just as devastating as outright hatred: A religious community is dragged into a lengthy, and costly, dispute with a city or town.”

Use of zoning laws to block churches, synagogues, and mosques has been such a problem that it inspired the passage of the Religious Land Use and Institutionalized Persons Act in 2000. “Zoning codes and landmarking laws may illegally exclude religious assemblies in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes,” notes the Department of Justice in a commentary on the law. That the effort wasn’t fully successful is apparent from the fact that the Justice Department is still cautioning jurisdictions over land use regulations that, as in Hawaii, explicitly discriminate against religious groups.

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Democrat Arizona Governor Katie Hobbs Vetoes Bipartisan Anti-Squatter Bill Designed To Protect Homeowners

Democratic Arizona Governor Katie Hobbs has taken the decision to veto a bill designed to bolster the rights of homeowners seeking to evict squatters from their properties.

This action comes despite the bill receiving bipartisan support and amidst a surge of squatting cases causing distress among homeowners nationwide.

Fox News reports that the legislation in question, SB 1129, aimed to empower homeowners by allowing them to request law enforcement intervention for the immediate removal of squatters from their premises if the squatter had unlawfully occupied the property and asserted a false right to reside there.

Police would have been authorized to swiftly intervene under the proposed law and facilitate the eviction process based on the homeowner’s affidavit.

Hobbs, however, took a decisive step on Tuesday, rejecting the bill in a succinct letter addressed to the president of the State Senate.

“Today I vetoed Senate Bill 1129,” Hobbs penned. “This bill fails to leverage existing legal mechanisms, respect the due process rights of lawful tenants, and minimize unintended consequences such as for victims of domestic violence.”

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It’s Time to End Squatter’s Rights

Last month, New York City homeowner Adele Andaloro was arrested after changing the locks on a house that had been seized by squatters. According to The New York Post: “Andaloro was charged with unlawful eviction because she had changed the locks and hadn’t provided a new key to the residents. The residents, however, are squatters.

Fortunately, Andaloro’s arrest was filmed and went viral, reviving an ongoing debate over squatters “rights,” under which trespassers can take over an unoccupied house or piece of land and attempt to establish legal ownership.

Not long after the Andaloro video surfaced, an immigrant TikToker with 500,000 followers posted a video encouraging other migrants to squat in private residences in the United States. The immigrant, Leonel Moreno, explained to potential squatters that under US law, “if a house is not inhabited, we can seize it.”

These videos have fueled increasing concern among property owners who have witnessed the explosion in the numbers of aggressive homeless residents in both central cities and suburbs. This, coupled with millions of new foreign nationals flooding into US cities in recent years, has further increased concerns about a sizable, rootless and impoverished population searching for opportunities to seize unoccupied homes.

These recent examples have prompted many Americans to wonder why squatter’s rights exist at all. Historically, there have been some arguably reasonable justifications for the practice, such as in times past when real estate records were far less precise and well preserved. In modern times, however, squatter’s rights have little purpose beyond redistributing property to favored interest groups. Moreover, squatter’s rights in modern settings bear less and less resemblance to the squatter’s rights of history.

Thanks to all this, it is becoming increasingly clear that squatter’s rights have outlived whatever usefulness they may once have had. The time has come to end squatter’s rights altogether.

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Californians Take Squatting Crisis Into Their Own Hands

Agroup of Californians has taken the squatting crisis in the state into their own hands and created a business in which you can hire someone to get rid of illegal tenants on your property.

During the COVID-19 pandemic, several states updated their rules to allow renters more leniency if they were unable to make their monthly payments. However, in states like California and Washington, this has given rise to unforeseen problems in which squatters stay on property they don’t own permanently, and the homeowners lose thousands of dollars in the process.

Lando Thomas, one of the business owners behind Southern California-based Squatter Squad, has been removing squatters since 2018. In 2023, though, he decided to team up with a few others and start a branded company all about removing unruly and illegal tenants from homeowners’ properties.

“Because squatting seems to be on the rise, the courts are backed up from months to years, police can’t or won’t help, property owners feel helpless and are told taking the squatters to court is the only path to getting their property back,” Thomas told Newsweek. “Even the neighbors can be victims because where there’s squatters, there’s usually bad activities going on such as drug dealing and other crimes.”

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Proposed L.A. Ordinance Would Require Airbnb Hosts To Get Police Permission To Operate

Los Angeles Airbnb hosts would need permission from the police to do business under an ordinance being considered by the Los Angeles City Council.

A “responsible hotel” ordinance that earned the unanimous support of the council Tuesday would require hotel and short-term rental operators to obtain a police permit each year to do business. Getting that permit, in turn, would require a criminal background check, the payment of fees totaling hundreds of dollars, and possibly submitting fingerprints to the police.

The new regulations come as part of a “compromise” between hotel owners and the hotel workers union Unite Here Local 11, which has been engaged in strikes against individual hotels over this past year.

One of the union’s demands had been that hotel owners support an initiative the union placed on the Los Angeles city ballot in March 2024 that, if passed, would require hotels to give vacant rooms to the homeless.

In exchange for the passage of Tuesday’s ordinance, the union has agreed to pull that initiative from the ballot.

The bulk of the Responsible Hotel Ordinance layers additional regulations on new hotel developments.

It requires that city planning officials, before issuing permits for new hotels, study how the new hotel’s employees will impact housing, public transit, and child care services.

Per the ordinance, city planning officials will also have to produce findings on whether the new hotel is hiring from the surrounding neighborhood as a means of reducing additional traffic, whether it’s agreed to support nearby small businesses, whether it encourages its employees to ride transit or bike to work, and whether the hotel will negatively impact affordable and rent-controlled housing.

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Can an Unconstitutional Law Force You To Sell Your Home to a Private Investor?

Can the law force you to sell your home to other property owners? What if that law was declared unconstitutional after you agreed to be bound by legislation in place at the time? Those questions, along with the security of private property, are at stake in a case before the Arizona Supreme Court.

In 2018, Jie Cao and Haining Xia purchased a condominium at Dorsey Place in Tempe, Arizona. Over time, PFP Dorsey, an investment company, acquired 90 of the 96 units in the complex. According to the covenants, conditions, and restrictions (CC&Rs) that applied to the complex, owners were subject to state regulations regarding condominiums, and each unit had one vote within the association. That meant that PFP Dorsey controlled 90 out of 96 votes.

At the time, Arizona law (Section 33-1228) allowed an 80 percent supermajority (later increased to 95 percent) to terminate a condominium agreement and to “provide that all the common elements and units of the condominium shall be sold following termination.” PFP Dorsey exercised its votes to force the remaining individual owners to sell their units to the investment company.

Outraged, Jie Cao and Haining Xia sued.

“Defenders of Arizona’s law say it’s necessary to prevent the ‘holdout problem’—property owners who supposedly strategically refuse to sell at market price to compel extra compensation. In theory, such holdouts hinder economic development projects and their alleged trickle‐​down effects,” comment Anastasia P. Boden and Nathaniel Lawson of the Cato Institute. “The fact that some people would rather see private property go to a supposed ‘better use’ can’t justify confiscating it. The Founders were very worried that private interests might coopt government power for their own ends.”

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Phoenix Allows NFL to Determine What Residents Can Display on Their Property During Super Bowl

The Arizona-based Goldwater Institute (GI) has called out the city of Phoenix for imposing free speech restrictions on residents in a “Special Promotional and Civic Event Area” (Clean Zone) leading up to and through the 2023 Super Bowl.

“By delegating unfettered censorship power to private entities, the city of Phoenix has launched a blatant attack on its own citizens’ free speech rights under both the U.S. Constitution and the Arizona Constitution. It’s simple: Phoenicians shouldn’t need to ask the NFL for permission to communicate with the public on their own private property,” said GI Staff Attorney John Thorpe in a statement emailed to The Arizona Sun Times.

The Sun Times reached out to the city of Phoenix for additional comments but did not hear back.

Thorpe sent a letter Tuesday to the city regarding this issue. He explained that under Resolution 22073, passed by the city, all temporary signage in the Clean Zone “not authorized by the NFL or the Arizona Super Bowl Host Committee” (ASBHC) are restricted. According to Thorpe, these restrictions cover nearly all of downtown Phoenix and will be in effect until February 19th, 2023.

The city of Phoenix states that the final day to get any temporary sign applications approved is December 15th.

This ordinance has allegedly caused trouble for one Phoenician business and property owner, Bramley Paulin. The GI represents Paulin in this situation and shared that he reached out to potential partners about leasing and advertising but was rejected because of the city’s restrictions.

Aside from the aforementioned free speech violations, Thorpe argued that the city is also improperly delegating its government power. As established in Industrial Commission v C D Pipeline, the government “may not delegate its authority to private persons over whom [it] has no supervision or control.” Therefore, the city violates this by giving private entities, the NFL and ASBHC, regulation over private citizens’ free speech. Additionally, the city’s ordinance may violate the Equal Privileges and Immunities Clause and the Gift Clause.

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