Author:  Paul Beard II On Thursday, June 23, 2011, a full-day conference on the California Coastal Commission will take place in Sacramento, California.  Sponsored by UC Davis and Capitol Weekly, the conference's goal  is "to provide a balanced and rigorous … Continue reading →

The post PLF to participate in Coastal Commission conference appeared first on PLF Liberty Blog.

Last week I attended the California Coastal Commission meeting at the Taj Mahal in Newport Beach. On Wednesday, the meeting attracted a crowd full of union and environmental activists, to discuss Poseidon Water’s application to build a $900 million desalination … Continue reading →

The post Coastal Commission November wrap-up appeared first on PLF Liberty Blog.

As Coastal Land Rights Week concludes, it is important to recognize that a tremendous amount of work remains to be done. Governments around the country seem set on taking property along the coast at no cost. Currently the greatest publicity … Continue reading →

The post Agencies use global warming anxiety to strangle property rights appeared first on PLF Liberty Blog.

The shoreline of the Great Lakes has given rise to many interesting property rights disputes between property owners and hungry governments looking to take private property without obeying the Constitution. Add the case of LBLHA, LLC, v. Town of Long Beach, Indiana, to that … Continue reading →

The post State and local Indiana governments are hungry appeared first on PLF Liberty Blog.

We are thrilled to report that former PLF client, Roc Sansotta, has reached a settlement agreement with the Town of Nags Head, North Carolina, to the tune of $1.5 million! Under the agreement, the Town will essentially buy Sansotta’s beachfront … Continue reading →

The post Victory in Sansotta v. Town of Nags Head appeared first on PLF Liberty Blog.

Should the public have the right to cross private property simply because it is next to a navigable water body? The California Court of Appeal may decide just that when it takes up the ongoing controversy over access to Martins … Continue reading →

The post PLF enters Martins Beach access controversy appeared first on PLF Liberty Blog.

Today, PLF filed an amicus brief in the California Court of Appeal defending the property rights of La Jolla coastal landowners Ure and Dianne Kretowicz. The Kretowiczs purchased their blufftop home from a bank after a foreclosure in 1994, unaware … Continue reading →

The post Can the Coastal Commission attach a dormant easement as a condition to a permit? appeared first on PLF Liberty Blog.

For several years now, PLF attorneys have been following Marin County’s efforts to amend its Local Coastal Program. In the past, we have submitted comment letters both to the Coastal Commission and the Marin County Board of Supervisors detailing our … Continue reading →

The post PLF comments again on Marin County coastal plan appeared first on PLF Liberty Blog.

Indiana Wants Me is a great pretty good not-half-bad not awful reasonably memorable Top 10 song from the 1970s. In light of Pacific Legal Foundation‘s recent experiences in the Hoosier State, methinks an enterprising pop artist could reprise the song and … Continue reading →

The post Indiana wants to take private property for free appeared first on PLF Liberty Blog.

The San Francisco Daily Journal published my op-ed today on last week’s California Court of Appeal decision in the Friends of Martin’s Beach case. As I have written before, in this case an advocacy group sued property owner Vinod Khosla claiming that the public … Continue reading →

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Author:    Damien M. Schiff

PLF runs a Coastal Land Rights Project, whose principal goal is to fight on behalf of coastal property owners against big and abusive government.  One of the most frequent violators of individuals' property rights in coastal areas is the California Coastal Commission.  PLF has been successfully fighting against the Commission since its landmark 1987 Supreme Court victory in Nollan v. California Coastal Commission.

But PLF is not the only one that has noticed the abusiveness of this state agency.  Richard Oshen, a California filmaker, has recently produced a documentary entitled Sins of Commission that details the many rights violations committed by the Commission.  Reason Magazine has this fine article on the film.

The post Reason article on California Coastal Commission abuses appeared first on Pacific Legal Foundation.

Author:  Paul Beard

Thanks to all who participated in our first-ever webchat last week concerning PLF's Coastal Land Rights Project.  It was a great success, with a large number of participants signed into the chat, and a host of excellent questions and comments! 

For those who weren't able to attend, you can access the transcript of the chat on our website.

Stay tuned for future webchats on the Coastal Commission and other PLF projects.

The post California Coastal Commission webchat follow-up appeared first on Pacific Legal Foundation.

Author:  Paul Beard II

On Thursday, June 23, 2011, a full-day conference on the California Coastal Commission will take place in Sacramento, California. 

Sponsored by UC Davis and Capitol Weekly, the conference's goal  is "to provide a balanced and rigorous discussion of the Commission's policies and operations."  There will be four panels, with an array of speakers from the entire political spectrum.  The Commission's Executive Director, Peter Douglas, will deliver the keynote address.

I will be participating on the second panel, which is scheduled for 10:45 a.m. and is provocatively entitled "Private Property Rights v. The Public Interest." 

If you're in the area and are interested in a lively debate about one of the State's most controversial bureaucracies, it's not too late to sign up.  Hope to see you there.

The post PLF to participate in Coastal Commission conference appeared first on Pacific Legal Foundation.

Last week I attended the California Coastal Commission meeting at the Taj Mahal in Newport Beach.

On Wednesday, the meeting attracted a crowd full of union and environmental activists, to discuss Poseidon Water’s application to build a $900 million desalination plant. The proposed facility would produce 50 million gallons of drinking water a day by recycling water used by a power plant. The project has been moving through the regulatory process since 1998, and is supported by most Orange County officials. Unfortunately for Poseidon, Coastal Commission staff recommended a $270 million modification that could kill the project. While the Commission claimed support for desalination throughout the day, its underlying tone was palpably hostile. So, as is common with applicants for coastal permits, Poseidon withdrew its proposal before it could be rejected.

On Friday, the Commission, on behalf of a labor union, denied an application to replace the Beach Plaza Hotel in Long Beach. The application, which had already been approved by the Long Beach planning commission and city council, would have allowed the transformation of a run-down building into a 72-room complex with 33 residential units. Several commissioners claimed that this proposal would reduce coastal access. As a result, the commission told the developer it could either negotiate with the union or risk a vote. Once the developer declined the negotiation proposal, the Commission effectively rejected the application.

Another controversy involved an application to subdivide a former power plant site in Orange County, in order to create an open space park and 32 homes. The proponents of the plan agreed to give the City of Seal Beach 6.4 acres of land for a park near the beach, and the mayor of Seal Beach testified in support of the plan. However, the commission thought it knew better, and said that a hotel should be built on the site. The developer was forced to withdraw its application.

In addition to these contested issues, I was struck by the many decisions made without public awareness. Important issues were quickly approved or disapproved based solely on staff reports. Additionally, in the face of the Commission’s recently attempted power grab, the enforcement report was a disheartening reminder of the many structures the Commission forces people to remove.

Pacific Legal Foundation remains the only organization that consistently monitors the Coastal Commission’s meetings and activities. In fact, PLF’s first US Supreme Court win, Nollan v. California Coastal Commission, involved a lawsuit to block an attempted extortion. To learn more about PLF’s efforts to protect coastal property rights, you can subscribe to our monthly newsletter, the PLF Coastal Guardian, follow us on twitter @TheCoastWatch, or check out our blog. If you are experiencing issues with the Commission we would love to hear from you.

The post Coastal Commission November wrap-up appeared first on Pacific Legal Foundation.

As Coastal Land Rights Week concludes, it is important to recognize that a tremendous amount of work remains to be done. Governments around the country seem set on taking property along the coast at no cost. Currently the greatest publicity tool these governments have is the prospect of climate change and global warming. In a recent report, the Little Hoover Commission went so far as to call for paramilitary tactics. Just as agencies use global warming fears to justify policies in areas as diverse as food processing, bullet trains, and defense they also threaten to use the fear of sea level rise to increase coastal regulation.

The California Coastal Commission’s draft guidance on sea level rise exemplifies these changes. Under these proposals, large sections of property will be taken from owners as public access and conservation easements. And not only if those owners live at the beach, but also if they are located as much as five miles inland. These policies would also prevent property owners from maintaining and protecting their land from erosion, forcing them to essentially abandon their properties to the forces of nature. The Commission would even, under certain circumstances, require people to abandon or remove their homes entirely! This would occur if or when the home faced erosion.

Agencies in other parts of the country are pursuing similar policies to take property and return it to the ocean. In fact, recent EPA guidance encourages governments throughout the country to take beach property. Here at Pacific Legal Foundation we have successfully fought efforts to stop property owners from protecting their homes in both North Carolina and Texas.

In addition to using novel legal theories to defend unconstitutional takings, several other coastal agencies are engaged in outright power grabs. In California for example, the Coastal Commission recently spent the legislative session lobbying for the power to not only determine that someone had violated the law but also to enforce monetary penalties without having to go to court. This drive for power is present not only in California but in other states. For example, in New Jersey, where the state wants easements to build a 50 mile sand dune, government officials, including the governor, have applied pressure on landowners to cede their rights to the government. In these cases the government has encouraged individuals and businesses to harass those who do not kowtow to its demands. In the face of these threats, PLF remains committed to protecting coastal property rights.

The post Agencies use global warming anxiety to strangle property rights appeared first on Pacific Legal Foundation.

The State of Indiana and Town of Long Beach want to gobble private property for free. Photo licensed via a Creative Commons 2 license at Wiki Commons by Bobisbob.

The shoreline of the Great Lakes has given rise to many interesting property rights disputes between property owners and hungry governments looking to take private property without obeying the Constitution. Add the case of LBLHA, LLC, v. Town of Long Beach, Indiana, to that list.

The states bordering the Great Lakes have a history of trying to grab land for free from private property owners (see here for an example in Michigan, and here for an example in Ohio). Like its neighbors, Indiana recently tried to take this land upland of the waterline on Lake Michigan, all the way to a fictional, administratively created “ordinary high water mark” that encroaches well into private property all along the lake in Indiana.

Not surprisingly, the Indiana town of Long Beach—which borders Lake Michigan—then followed the State’s lead. Long Beach told its law enforcement officers to stop enforcing trespassing laws upland of the water line below that fictional “ordinary high water mark.”

In turn, the private property owners along Lake Michigan sued Long Beach for declaratory relief regarding their ownership of the land in dispute and for a regulatory taking. When they asked the trial court to add the State of Indiana as a necessary party, the court refused. The property owners appealed and Pacific Legal Foundation filed a friend of the court brief in support of the property owners.

This week, the Indiana Court of Appeals granted relief to the private property owners. In a detailed, 30-page opinion, the Court explained that the trial court erred as a matter of law when it refused to add the State of Indiana as a party to the lawsuit.

This article at the Indiana Lawyer describes the decision well. The article explains:

Property owners along Lake Michigan will have another chance to make their arguments in a dispute over which part of the beach belongs to them and which belongs to the public.

The Indiana Court of Appeals overturned an order for summary judgment in LBLHA, LLC, Margaret L. West, and Don H. Gunderson v. Town of Long Beach, Indiana, Alliance for the Great Lakes and Save the Dunes, Long Beach Community Alliance, Patrick Cannon, et al., 46A05-1404-PL-146. The unanimous panel found the LaPorte Circuit Court had improperly granted summary judgment to the town.

*****

The Court of Appeals said[:] “… the trial court did not determine the ownership rights of the Lakefront Owners or public rights to the beach area at issue and thus did not rule on the substantive allegations set forth under Count I of the Lakefront Owners’ complaint,” Judge Elaine Brown wrote. “While the trial court stated that it did not reach that determination because it had determined there was no taking, we observe that the Town did not establish that the Lakefront Owners are precluded from requesting the court to determine their relative property rights notwithstanding whether the designated evidence may or may not establish as a matter of law that there was not an impermissible taking.”

Consequently, the Court of Appeals concluded the trial court should have joined the state as a party to the proceedings. Indeed, the panel noted even the town and the intervening defendants, Alliance for the Great Lakes and Save the Dunes, asserted the owners’ claims are actually against the state.

Yet, the court maintained that adding the state as a defendant does not mean the property owners have no separate claim against the town. The 2012 resolution is a policy for enforcement of the town’s public property ordinances in the disputed area, the appeals court held, and the owners are objecting to the town’s ordinances.

The Court of Appeals remanded for further proceedings with the state of Indiana to be added as a party.

Read the whole thing. So to sum up: Indiana needs to answer for whether it thinks it owns the private property of Lake Michigan property owners, and the Town of Long Beach needs to answer for whether its actions amount to a taking of those property owners’ property.  In our book, that counts as a win.  We look forward to seeing what comes next.

The post State and local Indiana governments are hungry appeared first on Pacific Legal Foundation.

We are thrilled to report that former PLF client, Roc Sansotta, has reached a settlement agreement with the Town of Nags Head, North Carolina, to the tune of $1.5 million! Under the agreement, the Town will essentially buy Sansotta’s beachfront property and cottages, and tear them down to make the land part of the public beach. This is a great outcome, both for the Town and for Sansotta. As PLF has said all along: if the Town wants Sansotta’s beachfront property, it must pay him for it. Now, after five years of litigation, the Town is finally doing just that.

This case began when the remnants of a hurricane struck the Town of Nags Head. Sansotta, the owner and manager of several beachfront cottages, was prepared to defend his property from the elements. As with prior storms, he had his contractors on the beach, keeping the cottages’ septic tanks covered with sand, and reinforcing the structures to make sure they didn’t suffer damage. But the Town had other ideas. Under the auspices of the Town mayor—whose election platform included a promise to remove the cottages from the beach—the police forced Sansotta’s contractors to stop their work during the storm and kept them from re-entering the property. Predictably, the storm then damaged the cottages.

After the storm, the Town sent Sansotta a notice stating that the cottages were nuisances and that if he did not demolish them within 18 days, he would start accruing daily fines. The Town claimed that the cottages were nuisances not only because of their damaged state, but more significantly, because of their location. Although Sansotta held title to the property, the Town claimed that because the storm moved the vegetation line inland, the cottages were now located on a “public trust” easement, and therefore, had to be removed.

Sansotta originally filed suit in 2009 in North Carolina state court, challenging the Town’s scheme as an unconstitutional taking of his property, and a violation of his due process rights. The Town then removed the case to federal district court. After litigating the case for some time, the Town claimed that Sansotta’s takings claim was unripe for adjudication in federal court under Williamson County’s “state litigation” ripeness doctrine. Under that bizarre and misguided rule, plaintiffs must first litigate their takings claims in state court, before bringing them in federal court. The federal court in Sansotta’s case agreed with the Town and dismissed his takings claim as unripe.

That’s when PLF got involved. Given our history of battling the injustices that Williamson County inflicts on takings litigants, we joining local counsel Keith Anthony at Morningstar Law Group to appeal the district court’s decision to the Fourth Circuit. There, the court established a crucial limiting principle on Williamson County: where a defendant in a takings case removes the case from state to federal court, he waives the right to argue that the case is unripe for failure to litigate in state court. As such, the Fourth Circuit reversed the lower court and remanded for a resolution on the merits of Sansotta’s claims.

Once back in federal district court, PLF continued to represent Sansotta where we won several important claims on summary judgment. These include: (1) establishing that the Town had no authority to declare Sansotta’s cottages nuisances because of their location on the beach; (2) getting the fines the Town charged Sansotta for his refusal to demolish the cottages dismissed as unlawful; and (3) wining the right to have a jury decide whether the Town’s actions had caused an unlawful, temporary taking of Sansotta’s property.

PLF then handed back the reigns to local counsel Keith Anthony to handle the trial. The Town’s fear that it would lose the trial prompted it settle. As the Town’s Mayor explained: “Our Board feels that settling these lawsuits at this time is in the best interest of the town. If this had gone to a jury trial, we may have faced potential liability for plaintiffs’ attorneys’ fees and costs, along with any damages the jury may have awarded.”

Congratulations to Keith Anthony and Roc Sansotta. And we’ll give ourselves a pat on the back too for our role in helping to bring about this happy ending!

The post Victory in Sansotta v. Town of Nags Head appeared first on Pacific Legal Foundation.

Should the public have the right to cross private property simply because it is next to a navigable water body? The California Court of Appeal may decide just that when it takes up the ongoing controversy over access to Martins Beach. As we have blogged about before, for decades the owners of the coastal property in San Mateo County south of Half Moon Bay allowed the public to park on their land for a fee in order to access Martins Beach. The owners had even installed a convenience store and public restrooms and advertised access to the beach. But eventually the cost of maintaining the operation was too much. Rather than continue losing money, the owners sold it to Vinod Khosla, a wealthy venture capitalist.

Mr. Khosla initially intended to carry on the parking operation, but wanted to raise the price to pay for some much-needed improvements. San Mateo County balked at his plan; the County told him that he had to charge the same for access as the prior owners had in 1973. With no other alternative other than to run a money-losing operation, Mr. Khosla decided to end the program. Since the public has no right to park on Mr. Khosla’s private property, that should have been the end of the story.

But an organization called the Friends of Martins Beach thinks otherwise. The Friends filed a lawsuit against Khosla, claiming that the public has a constitutional right to cross his property. They cited Article X, Section 4, of the California Constitution, which says that nobody “shall be permitted to exclude the right of way” to navigable water and that “the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.” Because of the broad language in that Section, the Friends argued that the public has the right to trespass across Mr. Khosla’s property to get to the Pacific Ocean.

Under the “public trust” doctrine, the state holds title to navigable waters and the “wet” beach, up to the mean high tide line. The state holds this land and water in trust for the people, to use for things like fishing and recreation. But the state does not own the “dry” beach. Private owners therefore may exercise their right to prevent the public from trespassing on their property, including dry sand beach. California courts dating back to the late 19th century have always agreed. But the Friends of Martins Beach hope to establish the public’s right to trespass across coastal property to reach the beach. The trial court rejected their arguments, but the Friends appealed.

PLF, along with the California Farm Bureau Federation and the California Cattlemen’s Association, filed this amicus brief yesterday in the Court of Appeal. We emphasized that this case is not just about a dispute between Mr. Khosla and one advocacy group. It has the potential to impact every property owner with land adjacent to a body of water, particularly when the only way to reach the water is through the property. If the public has the right to cross Mr. Khosla’s property, the fundamental right to exclude trespassers from private property would mean very little to these property owners. They would be unable to keep the public from using their land as a right-of-way to the water. As we detail in the brief, even states with broad public trust doctrines have recognized these issues and rejected similar arguments for public access.

Even if the Court of Appeal agrees that the California Constitution or the public trust doctrine gives the public access to Mr. Khosla’s property, he should still prevail. The Supreme Court of the United States has consistently said that the right to exclude trespassers is one of the most important components of private property rights. And the California courts have never held that the presence of public trust waters next to property provides a right of access. A reversal of these precedents, in the face of legitimate expectations of property owners, would be an unconstitutional taking of private property without just compensation. If the public wants an easement across private property, the state should pay for it.

The post PLF enters Martins Beach access controversy appeared first on Pacific Legal Foundation.

Today, PLF filed an amicus brief in the California Court of Appeal defending the property rights of La Jolla coastal landowners Ure and Dianne Kretowicz. The Kretowiczs purchased their blufftop home from a bank after a foreclosure in 1994, unaware of any restrictions on the title. But when they tried to get a permit to build a swimming pool and make some minor improvements to their house, they unwittingly provoked a long battle with the California Coastal Commission. The Commission said that a public easement across the property had been dedicated across the property back in 1979. So, if the Kretowiczs wanted their permit, they would have to acknowledge the easement and allow the public to cross their property.

In 1979, the Commission had demanded from prior owners that they dedicate a public access easement in return for a building permit. But, by the time the Commission made that decision, the house had already been built in reliance on an earlier permit issued by a regional Coastal Commission. And the owners’ attorney told the Coastal Commission that if it wanted a public easement, it would have to use its eminent domain power. As a result, no dedication of a public easement was ever recorded. Nor did the Commission attempt to enforce the easement until the Kretowiczs applied for a permit nearly two decades later.

In our brief, we argue that the Commission cannot enforce the purported 1979 easement against the Kretowiczs. First, if the Commission had attempted to condition a new public access easement on the granting of the Kretowiczs permit, it would surely be unconstitutional. Under PLF’s case of Nollan v. California Coastal Commission, the government cannot exact a new public easement as a permit condition unless it bears an “essential nexus” to the effects of the planned project. Of course, the Kretowiczs’ swimming pool and improvements had no effect on public beach access, since public access through the property had been non-existent since at least 1979. So, if the Commission is to win, it must be because the 1979 easements are valid.

But the easement was never recorded. The recording acts provide stability and certainty both to property owners and those looking to purchase property. For purchasers, it is essential that any restrictions on title, like a public easement, be discoverable in the public record through a title search. If that were not true, no buyer could know for sure that a third party with a competing claim would not show up and challenge the title. That is why the California courts have recognized only narrow exceptions to the general rule that people may rely on record title. For example, if a purchaser buys property for a “grossly inadequate” price, or one that is currently occupied by a third party, a court may infer that the purchaser should have known the title was not perfect.

The narrow exceptions do not apply in this case. The Kretowiczs purchased the property for a significant sum and, because the public easement had never been enforced, there was no indication that public access was allowed. But the trial court still found that, because Mr. Kretowicz is a real estate developer, he should have known to go to the Commission’s office to check for any permit conditions that may have been imposed. There is no authority for such an expanded duty to investigate, and we hope the Court of Appeal will reject it. The Commission cannot use a dormant easement to opportunistically require the Kretowiczs to give up the right to exclude trespassers from their property.

The post Can the Coastal Commission attach a dormant easement as a condition to a permit? appeared first on Pacific Legal Foundation.

For several years now, PLF attorneys have been following Marin County’s efforts to amend its Local Coastal Program. In the past, we have submitted comment letters both to the Coastal Commission and the Marin County Board of Supervisors detailing our concerns with the proposed amendments’ effect on property rights. For example, we noted in 2013 that portions of the proposed Land Use Plan unduly restricted the rights of property owners to make productive use of their land and required them to make unconstitutional dedications of property in return for development permits. Now, the Board of Supervisors is set to consider the final Implementation Program for Agriculture – a set of County ordinances to bring the new LCP into effect. Should the Board approve the Implementation Program, it would go to the Coastal Commission for certification along with the LCP.

Yesterday, joined by our friends at the California Cattlemen’s Association, PLF submitted this comment letter on portions of the Implementation Program. We principally expressed our concerns about the Program’s curtailment of development rights. The ordinances, if approved, would essentially create a stealth downzoning of agricultural land. They permit only three structures per “farm tract,” which is defined as all commonly-owned contiguous parcels. Even if one family owned connected lots totaling over 1000 acres, they could only build three structures on their land. As the California Court of Appeal has held, this sort of extreme downzoning may cause a taking when applied to particular tracts. We pointed out that the County could expose itself to significant liability if it goes through with these changes.

The Program also includes a curious provision that appears to require land within the Coastal Zone to be owned by a farmer and engaged in agriculture. Most zoning laws prohibit certain uses of property, but this one purports to require a particular use. Should farmers decide to sell their land, they are restricted from selling to anyone who will not use the land for agriculture. And if a farmer decides to retire and just use the land as a residence, it appears from the text of the Implementation Program that he would then be in violation of County ordinances. These provisions are a significant limitation on the right to reasonable use of property, and we asked the County to reconsider them.

Finally, the Program requires property owners to enter into restrictive covenants that bind all future owners to these potentially illegal restrictions. Once a covenant is signed, it can become very difficult to challenge even the most burdensome regulations of property rights. These provisions would be bad enough if imposed on today’s property owners, but are far worse when compounded over many years. That is why we urged the Board in our letter to reconsider all of these provisions.

The post PLF comments again on Marin County coastal plan appeared first on Pacific Legal Foundation.