The Sackets sought to build a home several lots away from a lake in a developed area which they reasonably assumed could not be deemed a wetland. However, the Environmental Protection Agency has been given broad powers to regulate anything it concludes is a “wetland.” If EPA believe someone has developed property that includes a wetland, they have authority to order that property owner to restore the property and levy sanctions of over $35,000 a day. The EPA concluded the Sackets were building on a wetlands and ordered them to restore the property to its original condition. The Sackets asked for a review of the decision, but the EPA refused. The EPA has asserted it could take these action and not be subject to any judicial review of its administrative decision. The EPA asserted successfully in a US District Court and the Ninth Circuit that the Sackets were limited to indirectly challenging the decision by seeking a permit to develop the property and challenging the denial of that permit, which gives them the choice of destroying what they built or risking penalties of $35,000 a day. The Supreme Court today issued a unanimous decision reversing the the Ninth Circuit, which had agreed with EPA that there was no right of review. It seems even the liberals on the Supreme Court recognized the abusive nature of the power exerted by EPA and deservedly slapped down the Ninth Circuit (again). Let’s hope the California Coastal Commission gets the message. For a more full discussion on the case, see the statement by Pacific Legal Foundation who represented the Sacketts.
The Supreme Court Unanimously Slaps Down the EPA and the Ninth Circuit
Posted in Current Decisions
Will the Supreme Court Decide Whether Rent Control Can Cause a Taking?
The U.S. Supreme Court is currently considering a cert. petition in Harmon v. Kimmel (Appeal No. 11A871) Robert Thomas at inversecondemnation.com has posted a link to the cert. petition and amicus briefs here. It is commonly assumed that the Supreme Court has affirmed the constitutionality of rent control in the 1988 case of Pennell v. City of San Jose It really didn’t. It did uphold the ordinance against a facial substantive due process challenge, but the Court actually dodged the crucial question of whether rent control could be used to force individual property owners to effectively subsidize rents at below market rent without causing a taking. The Court held that because it was a facial challenge ” . . .it is premature to consider appellants’ claim under the Takings Clause.” If the Court actually takes Harmon, it is bad news for the advocates of rent control, which has survived because courts have simply refused to correctly apply the standards for takings analysis to rent control. A perfect example is this is the just decided First District Court of Appeals decision in Besaro v. Fremont, which assumes that the fact that a park earns a “fair return” (applying a substantive due process standard) forecloses any taking claim. This is just wrong as the district court recognized in Los Altos El Granada Investors v. City of Capitola case I handled. It is hard to imagine that the Supreme Court has not addressed this issue–perhaps it finally will.
Posted in Uncategorized
Any dolts for a volt?
Our federal government “invested” billons of dollars in GM with the understanding that GM would be developing the volt. Way back in February, the Obama administration touted its goal of a millon electric cars on the road by 2015. With all manner of government support, the volt has been a tremendous failure, as noted by Columnist Eric Peters at EricPetersAuto.com. His description of the Volt is priceless. “… a $41,000 “economy” car that costs as much to buy as a fully loaded BMW 3-Series but which can’t match the day-to-day performance of a $15,000 Toyota Corolla.” When government confiscates private property, it typically does so with the assumption that it has a use for the property that better serves the greater good. When these government supported debacles fail, they are not abandoned, but must be “rescued.” If the green industry cannot succeed on its own, let it fail.
Posted in Uncategorized
California Tax Plan Foiled By the Law of Unintended Consequences
The controversial California state budget signed by Governor Brown included 200 million dollars in expected revenue from a new tax of internet sales in California. As a result, Amazon immediately terminated its relationship with all of its California affilliates, preventing the collection of tax and actually resulting in a reduction of income (and thus income tax) to California. Of course, this tax is not a land use regulation, but it is a great illustration of the law of unintended consequences. Even regulations which have their desired effect have the tendency to result in other unintended negative consequences. These negative consequences then lead to more regulation and more unintended consequences. California’s internet tax is a useful lesson, as we rarely see the unintended consequences of regulation so quickly and directly.
Posted in Regulation Nightmares
Guggenheim Reply Brief
The Reply in support of Guggenheim’s cert. petition was filed on Friday. The basic point the brief makes is that the City has attempted to re-write the Ninth Circuit’s decision, rather than attempt to defend it on the merits. We expect to hear some time in June. Click below to see the brief. I am cautiously optimistic, but cert. review is always an uphill battle.
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Posted in Current Decisions, Rent Control
