It’s no secret that California courts have been rather adventurous in finding ways around the rule that a permit condition must relate in both size and scope to development impact the condition is designed to mitigate. The nexus and proportionality tests—established by Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994)—are intended to curtail the common municipal practice of using a permit application as an opportunity to exact unrelated public benefits. Continue reading
We have noted here and here that the question about which court has jurisdiction to hear the many challenges to the Clean Water Rule, that redefines “waters of the United States” subject to federal control under the Clean Water Act, is still unresolved. The Clean Water Act states that such challenges should be brought in the federal district courts, and not in the courts of appeals. However, the Sixth Circuit Court of Appeals has assumed jurisdiction in a highly controversial decision that will soon be appealed to the U.S. Supreme Court.
In addition to the Sixth Circuit, the Eleventh and Tenth Circuits have been asked to weigh in on the venue question. Yesterday, the Eleventh Circuit decided to defer to the Sixth Circuit so as not to duplicate judicial resources. But the court did not decide whether the Act required the rule challenge to be heard in the district or appellate courts. The Tenth Circuit has not issued an opinion yet. The challenge to the rule will therefore proceed in the Sixth Circuit–at least for now.
When Dart Cherk and his wife Esther, both 83 years of age, needed to raise funds to supplement their modest retirement, they looked to the only significant asset they had beside their home: a vacant piece of land in Marin County, California, left to the family by Dart’s father. The property had been in the family for roughly 60 years. Dart is an architect and he thought the best idea was to split the lot to maximize its value and sell a portion, to live on the proceeds. Continue reading
Last week we reported that 15 states had filed an amicus brief in support of our petition for rehearing by the entire Fifth Circuit to overturn a panel decision that would authorize federal control of any land in the country in the hopes that it may someday be used as habitat for protected species. In Markle v. U.S. Fish and Wildlife Service the government designated over 1500 acres of private land as “critical habitat” for the dusky gopher frog that the agency admits is unsuitable for habitat. Contrary to all reason, the service declared protecting the area does not create an undue burden on the landowners, although the area is not and cannot be used by gopher frogs and the loss of value to the landowners could exceed 33 million dollars. It’s not surprising, therefore, that the Fifth Circuit has shown an unusual interest in the case by directing the government to respond to our petition for rehearing. The response is due August 26. Shortly thereafter we expect the court to rule on our petition.
Most people associate Cape Canaveral with NASA and the Kennedy Space Center, but many licensed commercial fishermen and crabbers in Merritt Island rely on the waters of Florida’s “Space Coast” to earn a living and to support their way of life. Our friendly federal government has decided to threaten that way of life, for reasons that leave much to be desired. A trip down memory lane to the “Space Age” provides background for this ongoing story of government overreach.
Last week, the Destin Log published my opinion article about Edward and Delanie Goodwin’s challenge to a Walton County, Florida, ordinance that bans signs on the Goodwins’ private property. PLF is representing the Goodwins in a First Amendment lawsuit. As I explain in the article, the Goodwins’ right to speak is intertwined with their property rights:
“Freedom is indivisible,” as Ronald Reagan once said. “There is no ‘s’ on the end of it. You can erode freedom, diminish it, but you cannot divide it and choose to keep ‘some freedoms’ while giving up others.”
The truth of those words is on display right now in Walton County, in the Florida Panhandle, where some beachfront homeowners have just sued the local government over a new law that stops them from maintaining signs on their own private beach property.
Read the entire article at the Destin Log.
PLF will square off against the California Coastal Commission in an Orange County, Calif., trial court this week at a hearing that is open to the public.
At issue is the Wills family’s right to replace their coastal mobile home without knuckling under to the Commission’s permit condition that they never maintain, repair, or replace the seawall that safeguards their property in the future. As we argue in a motion for judgment and reply filed with the court, that demand not only exceeds the Commission’s authority under the Coastal Act but deprives the Wills of property rights guaranteed by the California and U.S. Constitutions. In just the last few years the Commission has made similar demands of more than a hundred property owners–and a win in the Wills’ case will go a long way to ending a lawless practice that threatens the security and prosperity of coastal landowners in California.
The hearing will be held at the Orange County Superior Court (Central Justice Center), at 700 Civic Drive West, Santa Ana, CA, in Dept. C18 on Thursday, August 18, at 1:30 p.m.
Marquette County, perched on the edge of Lake Superior, is one of the most populated counties in Michigan’s upper peninsula. In order to decrease traffic and to increase safety through the small towns in this area, the Marquette County Road Commission planned to build a road, County Road 595, through some undeveloped land. The County hoped to create a short-cut for heavy-duty trucks, most of which are used to transport ore from the local mine to its processing facility. Despite winning approval from the Michigan Department of Environmental Quality (“MDEQ”), the U.S. Environmental Protection Agency (“EPA”) said “no way” to the plans. The EPA vetoed the County’s permit application and authority to approve the Commission’s road plans transferred from the MDEQ to the U.S. Army Corps of Engineers. Although the EPA refused to ever provide a clear explanation for its decision making in the case, at bottom it rejected the County’s plan for environmental reasons despite the County’s intent to protect more than 26 acres of wetlands for every one acre of wetland filled by the planned road project.
Under the Clean Water Act, the federal government requires individuals, businesses, and municipalities to obtain CWA permits in order to fill land deemed to be a wetland. But all too often, the EPA abuses its power, forgetting about the practical effects of its decisions. In this case, Marquette County decided to fight back.
Wetlands by proxy
We filed this petition for cert in Foster v. Vilsack where we are asking the Supreme Court to take the Arlen and Cindy Foster’s case. At issues is whether the Department of Agriculture can impose a “wetlands by proxy” determination on the Foster’s farm. Because the Fosters have plowed their land, the Department claims it cannot determine whether it was once a wetlands so it insists it can use a pre-selected wetlands site 30 miles from the family’s farm as a fair comparison to make that determination. But by that method, every farm would be a wetland. 30 miles might be “close enough for government work” but not for the Constitution. For more, see our blog post here and listen to our podcast here.
States support critical habitat rehearing
Fifteen states filed this friend of the court brief with the Fifth Circuit urging it to rehear our Markle Interests v. U.S. Fish & Wildlife Service case — where the Fish & Wildlife Service imposed a critical habitat designation over our client’s property despite the fact that the land hasn’t seen a frog in over a half-century, the land is today totally unsuitable as frog habitat, and the landowner has no plans to make it suitable as frog habitat. For more, see our blog post here.
Tort reform — liability for third party actions?
We filed this amicus brief in Queens Village Committee for Mental Health for Jamaica Community Adolescent Program v. Oddo before New York’s highest appellate court. This case raises the question whether a halfway house can be held liable for the criminal acts of an evicted resident. For more see our blog post here.
Despite its mission to protect the coast, the Coastal Commission has adopted a strategy of eroding coastal property in order to make way for public access and new shoreline habitat. The Coastal Commission calls this “managed retreat.” Managed retreat stops cliff stabilization, seawalls, and beach nourishment, exposing coastal property to flooding and erosion.