Tag: property rights

More on Columbia’s Abuse of Property Rights

Six weeks ago, Cato filed an amicus brief supporting a challenge to Columbia University’s strong-armed attempt to condemn and take over certain land in Upper Manhattan.  Tomorrow, the Supreme Court will consider the cert petition our brief supports, with a decision on whether it hears the case expected Monday.

In what is probably not a coincidence, then, the Columbia Spectator today came out with a lengthy feature story examining the story behind the dispute, controversial “blight” designations and all.  This is excellent student journalism – heck, excellent journalism, period – and here are some key excerpts (full disclosure: the author interviewed me for the piece):

Since it proposed the expansion, Columbia has rapidly made deals with property owners and gained control over nearly every lot in the zone – except for two who have fought to hold on to their land….

And Columbia has repeatedly said that those parcels, which represent a total of around nine percent of the expansion zone, are vital to the vision. 

Eminent domain – the process by which the state seizes private property for the “public good,” providing just compensation for the owner – officially came into the picture in 2004, when the University asked the state to consider condemnation.

And here’s the crux of the legal dispute:

Some neighborhood tenants and owners – most no longer in Manhattanville as Columbia continues to break ground and demolish properties – have strongly contested this blight label.

Nuss remembers a community vibrant enough to support his improvisational group – the No-Neck Blues Band – local businesses, and his family. He raised his daughter in the Hint House….

But it’s sometimes hard to believe Nuss is talking about the same area as other residents who say they agree with the determination of blight….

This disparity in views on Manhattanville’s conditions touches upon a fundamental question when evaluating the process that paved the way for Columbia’s expansion: Was the neighborhood really blighted, and given the process by which the criteria of blight were determined, was the state’s designation of blight an appropriate justification for the use of eminent domain for a private university?

My sense is that whatever ”blight” there is was caused by Columbia itself:

“It’s akin to the kid who kills his parents and begs the court’s mercy for being an orphan,” says Ilya Shapiro, senior fellow with the Cato Institute, which filed an amicus brief to the U.S. Supreme Court supporting the Manhattanville property owners. “You’re creating your own blight. It doesn’t pass the smell test.”

Read the whole thing.

How Capitalism Saved the Pilgrims

When I was growing up, my father would occasionally tell me the story around this time of year of how private property rights saved the Pilgrims from starvation.

When the Pilgrims first arrived in 1620, as my father told the story, they tried to live communally according to the spirit of the Mayflower Compact. What crops they grew were put in a common storehouse and then apportioned according to each family’s need. The small colony struggled to survive for two or three years until its leaders declared that every family henceforth would be responsible for growing its own food. The new system proved much superior at putting food on the table.

Years later, when I was writing editorials for the Colorado Springs Gazette, I would tell the story in print on Thanksgiving Day, this time quoting from Governor William Bradford’s first-hand account. One of my fellow editors objected to my version, claiming it was Squanto the friendly Indian who saved the Pilgrims by teaching them how to fertilize their crops with dead fish. We agreed to disagree and I stuck to my version.

Earlier this year, as I was reading Nathaniel Philbrick’s bestselling book, Mayflower: A Story of Courage, Community, and War (New York: Penguin Books, 2007, paperback edition), I came across a passage that weighs in decisively on our editorial dispute. It appears my father did know best after all.

From page 165 of Mayflower:

The fall of 1623 marked the end of Plymouth’s debilitating food shortages. For the last two planting seasons, the Pilgrims had grown crops communally–the approach first used at Jamestown and other English settlements. But as the disastrous harvest of the previous fall had shown, something drastic needed to be done to increase the annual yield.

In April, Bradford had decided that each household should be assigned its own plot to cultivate, with the understanding that each family kept whatever it grew. The change in attitude was stunning. Families were now willing to work much harder than they had ever worked before. In previous years, the men had tended the fields while the women tended the children at home. “The women now went willingly into the field,” Bradford wrote, “and took their little ones with them to set corn.” The Pilgrims had stumbled on the power of capitalism. Although the fortunes of the colony still teetered precariously in the years ahead, the inhabitants never again starved.

Among the many things I’m thankful for this week is that I live in a country that was founded on the solid rock of property rights and free markets.

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If Only Hawaii’s Government Were as Beautiful as Its Beaches

Throughout history, people have fought over beaches, including in the legal arena. In the latest case in which Cato has filed an amicus brief, a state has once again redefined property rights to take possession of highly-valued beachfront property.

In 2003, Hawaii passed Act 73, which took past and future title to accretions (the slow build-up of sediment on beaches) from landowners and gave it to the State, changing a 120-year-old rule. While waterlines are unpredictable, the original rule — common to most waterfront jurisdictions — helped establish legal consistency. Indeed, without such a rule, beachfront property becomes beachview property in just a few years.

In response to Act 73, homeowners sued the state, claiming that the law violated the Takings Clause of the Fifth Amendment or, in the alternative, the Due Process Clauses of the Fifth and Fourteenth Amendments. The state appellate court held that compensation was owed only for the accretions that had accumulated before Act 73’s enactment because the right to subsequent accretions had not “vested” (the legal term for when an expectation becomes an actual property right). Hawaii’s Supreme Court declined to review that ruling, so the property owners asked the U.S. Supreme Court to do so.

Cato, joined by the Pacific Legal Foundation, filed a brief supporting that petition and argues that the appellate court’s decision was contrary to long-standing definitions of waterfront property rights. Our brief highlights the increasing need for the Court to establish and enforce a judicial takings doctrine.

More and more states are using backdoor tricks — like legislative “guidelines” and judicial creativity — to take property in violation of constitutional rights: This Hawaii case is distressingly similar to last term’s Stop the Beach (in which Cato also filed a brief). In that case, Florida took property by adding sand to the beach and then laying claim to the newly created land — in essence asserting that property that was defined by contact with the water (in technical terms, “littoral” or “riparian”) had no right to contact the water. The Court ruled that while Florida’s actions did not rise to the level of a judicial taking, a large enough departure from established common-law rules could constitute a constitutional violation.

In this latest brief, we highlight both the largeness of Hawaii’s departure from established law and the spate of such actions in recent years — which circumstance calls out for Supreme Court review.  The case is Maunalua Bay Beach Ohana 28 v. Hawaii and the Court will decide later this fall whether to take it up.

Another Judicial Takings Case Headed to the Court

The Montana Supreme Court overturned more than 100 years of state property law concerning navigable waters by effectively converting the title in hundreds of miles of riverbeds to the State. The majority of that court ruled that the entirety of the Missouri, Clark Fork, and Madison rivers were navigable at the time of Montana’s statehood, producing a broad holding that eradicates property rights to the rivers and riverbanks that Montanans had enjoyed for over a century.

Before this case, the hydroelectric energy company PPL Montana and thousands of other private parties exercised their property rights over these non-navigable stretches that the state never claimed.  Today, Cato joined a brief filed by the Montana Farm Bureau Federation supporting the PPL Montana’s request that the U.S. Supreme Court review the Montana high court’s ruling for possible Takings Clause violations under the Fifth Amendment.

We argue two main points.  First, that the Court should adhere to its standard for navigability rights set out in Utah v. U.S. in 1933. Unlike the approach taken by the Montana Supreme Court’s majority — that entire rivers were navigable simply because certain reaches of the river were navigable — the U.S. Supreme Court in Utah used an approach of meticulously analyzing the rivers at issue section-by-section. Second, this arbitrary ruling against rights long protected by Montana law amounts to a “judicial taking,” as explained last term Stop the Beach Renourishment v. Florida Dept. of Environmental Protection (in which Cato also filed a brief). There, a plurality of the Court held that there is no “textual justification” for limiting takings claims deriving from executive or legislative action, thereby extending it to a judicial action of the same nature (and two other members of the Court found potential relief in the Fourteenth Amendment’s Due Process Clause). Here, the Montana court did exactly that, violating due process rights that the Montana legislature could not and further violating the procedural due process rights of the thousands harmed by the decision in not affording them notice or a hearing.

The U.S. Supreme Court should thus review the case to reinforce its Utah precedent and ensure that arbitrary judicial takings of this sort cannot continue.  The name of the case is PPL Montana, LLC v. Montana.  The Court will decide later this fall whether to take it up.

Bulldozing Homes, Billing Homeowners

Officials in Montgomery, Alabama, are bulldozing homes in their historic civil rights district – and billing the homeowners for the cost of demolition:

Christina Walsh of the Institute for Justice writes about this injustice at the Daily Caller:

Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you.  Oh, and you’re paying for it.

This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.”  It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).

Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days … the city can sell your now-vacant land to the highest bidder.

The rest of her article is here.  Also, see ABC News, Big Government and Reason magazine.  And you can find Cato’s work on property rights here.

Fifth Anniversary of Kelo v. New London

With all the property rights news coming out of the Supreme Court and New York Court of Appeals in the last week, I almost missed Wednesday’s fifth anniversary of the dreadful Kelo v. New London decision.  Justice Stevens’s  opinion in Kelo sanctioned a transfer of private property from homeowners to a big company in the name of (promised but, as we’ve seen, never realized) job creation and increased tax revenue. 

This was a Pyrrhic victory for eminent domain abusers, however, given:

  • 9 state high courts have limited eminent domain powers;
  • 43 state legislatures have passed greater property rights reform;
  • 44 eminent domain abuse projects have been defeated by grassroots activists;
  • 88 percent of the public now believes that property rights are as important as free speech and freedom of religion.

To learn about these and other fascinating developments that turned a property rights lemon into at least some type of lemonade, see the Institute for Justice’s new report and video.

No One’s Property Is Safe in New York

Sad to say, but as expected, New York State’s highest court, the New York Court of Appeals, has just upheld yet another gross abuse of the state’s power of eminent domain, exercised by the Empire State Development Corporation on behalf of my undergraduate alma mater, Columbia University, against two small family-owned businesses, one of them owned by Indian immigrants. Details can be found in the press release just issued by the Institute for Justice, which filed an amicus brief in the case and has been in the forefront of those defending against such abuse across the country.

IJ has had success in obtaining eminent domain reform in over 40 states, but New York remains a backwater, where collusion between well-connected private entities and government is rampant, and the courts play handmaiden to the corruption by abdicating their responsibilities. Just one more example of why New York is an economic basket case, with a population that continues to flee to more hospitable climes. I’ve discussed the property rights issues more generally here.