California Property Rights Journal » Uncategorized

Will the Supreme Court Decide Whether Rent Control Can Cause a Taking?

Mark Alpert — Thu, 15 Mar 2012 22:21:40 +0000

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.

Any dolts for a volt?

Mark Alpert — Thu, 01 Sep 2011 17:22:14 +0000

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.

9th Circuit En Banc Panel Reverses–Supreme Court Cert. Petition To Follow

Mark Alpert — Wed, 02 Feb 2011 21:40:44 +0000

Those of you who follow property rights are likely aware of the En Banc decision of the 9th Circuit in Guggenheim v. City of Goleta, which effectively reversed the three judge panel decision finding that the City of Goleta’s adoption of mobilehome rent control caused a taking. We think the decision was wrongly decided, but that is not surprising since we represent Dan Guggeneheim. The dissent joined by three judges does an excellent job identifying the flaws in the majority decision–so I won’t write about them on this blog. I will say I am very surprised that the majority decided the case in a way that seems to directly reject U.S. Supreme Court guidance.

We are happy to announce that Dan Guggenheim has made the decision to file a cert petition. We are thrilled that Dan has been able to retain former Solicitor General Ted Olson and his appellate team at Gibson, Dunn to lead the effort along with myself and Rob Coldren at HKC.

Another Example of “Political Science”?

Mark Alpert — Fri, 08 Oct 2010 15:27:15 +0000

I was a political science major in college. We learned about various forms of government and political philosophies. I am starting to wonder whether our universities have developed a whole new discipline of “political science”: The study of how to influence political policy by manipulating science. The credibility of the global warming movement was undercut by the discovery of errors and downright fraud from the United Nations Intergovernmental Panel on Climate Change (“IPCC”) reports. It is hardly a coincidence that the “errors” almost inevitably overstate the risk of harm. The latest example of ”political science” is the pollution level estimates of the California Air Resources Board, which over-estimated air pollution by 340 percent. These over-estimates were used by the Air Resources Board in developing regulations for the “landmark” Global Warming Solutions Act of 2006. In my view, the entire global climate change movement is driven by politics and money and hurts the credibility of all science.

Are Property Rights the Solution to Land Use Problems?

Mark Alpert — Thu, 08 Jul 2010 17:12:46 +0000

That is the argument I make in the soon to be published article in the WMA Reporter. Rather than spending billions on wasteful goverment programs, the government should just stay out of the way and let the free market work.

Detroit Silverdome sells for $583,000

Mark Alpert — Sat, 21 Nov 2009 15:56:47 +0000

This isn’t so much a property rights story, as much as a story of what is happening to our economy. The Silverdome, which was built for 55.7 million dollars 35 years ago, just sold for $583,000. That is an amazing statement about how bad Detroit’s economy is doing today. Frankly, its downright scary.

Racetrack Development A Threat to Poppyseed Fields a Mile Away

Mark Alpert — Mon, 27 Jul 2009 17:19:37 +0000

Tom Malloy owns 320 acres of property in the Mojave Desert. He would like permission to create a fields wants to carve out a course for racing, driving and testing cars. The proposed Fairmont Butte Motorsports Park would be used primarily for events sponsored by car clubs and racing organizations. One would think the middle of the Mojave Desert would be an ideal location for such a project. Apparently not. Local environmentalists complain the site is a threat to poppyseed fields a mile away. The LA Times quotes Milt Stark, president of the Poppy Reserve/Mojave Desert Interpretive Assn., a volunteer group that gives tours and talks at the wildflower sanctuary. He complains: “It’s a terribly inappropriate business for that area. Visitors who come to see the poppies come out there to have peace and quiet.” Never mind that Malloy promises to clean up a site that is littered with shell casings and trash from trespassers. Never mind the construction and operation of the project would likely boost the local economy. We can’t disturb the poppy watchers!