Topics
Land Use & Property Rights
Land Use & Property Rights
Local TREND. Parking Space Limits. Meet Business TREND. Parking Space Innovators. Meet COVID.
Cities that are considering removing minimum parking space requirements:
- Los Angeles
- San Francisco
- Austin has waived the requirement
- Seattle gives out transit passes rather than requiring on-site parking at each residential building
- Dallas is turning parking lots into parks
How has parking been impacted by COVID? Demand down 90% since mid-March
What companies are innovating parking space industry?
- Parking Spotter
- Spacer
- SpotHero
- Curbstand via a valet solution
- AirGarage
- Partners with churches, hotels, restaurants- allowing the church or business to retain 70% of parking space rental fee
How have they pivoted after COVID?
- Utilizing parking spaces for pop-up grocery stores
- Empty parking lots have become pop-drive ins
TX Attorney General Opinion. School Districts Leasing Property to Private Parties.
What legal question needs clarification in Texas?
- May a school district lease property when the lease is:
- to a private party
- the value of the lease exceeds the value if the district sold the property
- the property will be used for non-educational purposes
COVID Local Response: Local Only. Adieu 2nd hone owners.
Where: Gunnison County, Colorado
What: On April 3rd the County ordered owners of second homes in the county to leave or stay away
Supporters say: Local governments have police powers to protect health and safety. The County has one of the highest rates of COVID and limited hospital resources.
Opponents say: Violates the rights of Americans to travel freely
What did other Colorado local governments do?
- Aspen: Self quarantine for 14 days
- Clear Creek County closes to out of county visitors
COVID Attorney General Opinion. Occupancy of 2nd Homes
Which State Attorney General: Texas
What question will the Texas Attorney General answer?
- whether a local governmental entity under an emergency declaration has the authority to (1) prevent an owner of a second home from occupying their property and (2) limit occupancy of housing based on length of the occupancy’s term.
How a Property Rights Bill Became a Limit for County Land Use v. Cities
Where: Florida
What: SB 410 (2020 | FL)
How did SB 410 begin? As a requirement that local governments include private property rights in their comprehensive plans
What does the bill do now?
- Prohibits counties from making any land use decision “that serves as a limitation” on a cities’ land use and zoning practices.
- Cities can offer express consent for the county’s land use decisions
- This need to express consent applies to current city limits but also any land that may annexed by a city
- Applies to counties under 750,000
Professional Licensing. Staff Leasing Offering Payroll Services a Texas Attorney General Opinion.
The Texas Attorney General Opinion Request: RQ-00348-KP
Who requested the Attorney General Opinion? The Commissioner of Banking
What question will be answered? whether a licensed PEO ( a staff leasing company) that collects payroll funds in advance from an employer-client to be remitted to covered employees at a later time is subject to the licensure requirements ofthe Money Services Act ifthat entity holds a PEO license under the Labor Code.
Why did this issue pop up?
- Texas Department of Banking also regulates PSPs, payroll service providers
- traditional PSPs receive compensation from Texas employer-clients in exchange for the receipt and subsequent transmission of payroll wages and taxes to employees
- traditional PSPs require a money transmission license
COVID Attorney General Opinion. Pawnshops & Interest Rates.
The Attorney General Office: Texas
What question will Texas Attorney General Opinion answer? Whether or not Dallas County Commission has authority to change interest rates charged by pawn shops
What limitations did Dallas County Commissioners impose on pawn shops?
- Limit customers to 1 in the facility at a time
- maximum 15% APR
- extend how long a pawn shop must hold property
- with penalties of up to 180 days in jail and a $1000 fine
COVID Beach Closings. Local v. State. Compare. Contrast.
State leaving beach closures to local officials: Texas
State closing beaches statewide: Florida
Did all local entities close Texas beaches? No
- City of Galveston closed since March 29
- Non incorporated Galveston opened beaches on April 13th
- Galveston Island State Park re-opened as all state parks did by Governor declaration on April 13th
- Corpus Christi beaches closed for Easter weekend, continue to be open until 8 p.m. daily
- South Padre Island beaches are only open for “active exercise”
- Rockport beaches are closed until April 30
Did Florida pivot to locals for re-opening? Yes, the decision to re-open will be that of local officials
Spectrum news | Florida Beaches Facing Criticism but Some in Texas Never Fully Closed
Parks & COVID. The Esport & Virtual Classes Pivot.
Where: Illinois’ Naperville Park District
How is the park district adopting esports while athletic fields remain closed?
- created a six-week eSport competition
- based on Rocket League
- open to players of all ages and all skill levels
- no cost for participation
Benefits of incorporating esports into parks?
- not every parent can cover the cost of sports
- gender and disabilities become irrelevant in virtual games
What virtual classes is the park offering?
- virtual services at NaperParks2You
- dance lessons
- yoga for children
- art, nature and learning activities
- Zumba class for seniors
3 Post-COVID Reforms from Property Rights Advocates
Which property rights advocates? The Institute for Justice
What COVID related reforms is the Institute for Justice working on?
- Regulatory barriers for professional licensing
- Medical licenses scope of practices issues identified in 7 states: CA, TX, FL, GA, NC, VA, OK
- Regulatory barriers for small businesses
- Supporting Michigan independent garden centers and nurseries ability to operate during COVID
- Limit government overreach during the crisis
Local TREND. Commandeering Hotel Rooms. When Paying Rates Isn’t Enough.
Where: San Francisco, CA
What: The city has been paying for hotel rooms. City Controller estimates that the 7,000 rooms could cost over $105 M over 90 days
What’s Phase 2? Commandeering hotel rooms which prompted this memo from the City Attorney Office
Curbed San Francisco | SF mayor, county may seize private buildings for coronavirus relief
COVID Regulatory Changes for Businesses.
Where: California
What new rules may be imposed on restaurant owners?
- disposable menus
- temperature testing patrons
- increased cleaning and sanitation
- reduced in restaurant capacity
- mask requirements for what staff
How property space and limits factor into States Re-opening
California Governor listed 6 factors to consider in re-opening the state for business:
- Expanding testing
- Protecting high risk groups, including seniors, the medically vulnerable and people in facilities like nursing homes
- Ensuring hospitals have enough beds and supplies to care for patients
- Progress in developing treatments
- Ability of schools and businesses to support physical distancing
- Ability to decide when to reinstitute stay-at-home orders if needed
The 3 that concern property rights:
- whether schools can support social distancing
- whether businesses can support social distancing
- the ability to have additional stay at home orders (which may or may not trigger compensation)
Anatomy of a Governor’s Executive Order to Take Property during COVID
Where: New Jersey
What does the Executive Order permit?
- The New Jersey Civilian Defense and Disaster Control Act allows the Governor to permit the taking of property with compensation
- Including the state commandeering/taking personal services by the State Director of Emergency Management
How will compensation be decided for these takings?
- The Act allows the Governor to establish emergency compensation boards in each county
- Each county board will have 3 persons appointed by the Governor
Legal TREND. Close + Block Beaches to prevent COVID.
Where: Florida
Why are courts are deciding whether the Governor can be forced to close beaches statewide?
- The Governor only closed beaches in Broward and Palm Beach counties
- Local officials would like to close other local beaches
- Property Rights activists got involved
- Lawsuits ensued
- Uhlfelder v. DeSantis, Fla. Cir. Ct., 20-CA-552, 4/7/20
- Mike Huckabee, filed a federal lawsuit on Monday over local beach closures that they claim violate their privacy and private property rights.
Bloomberg Law | Florida Judge Won’t Force State Beach Closures to Halt Virus
COVID + Government Commandeering Hotel Rooms
What government actions support the government taking hotel rooms?
- Presidential Declaration included the Stafford Act authorizes FEMA to exercise the right of eminent domain to acquire both physical facilities and supplies
- California Governor’s executive order allows the commandeering of any hotel or medical facility in California and use it to treat COVID-19
Compensation? Yes, but is limited to applicable federal law, state law, or the agreement a hotel reaches with the government.
Hotel Management | Can the government commandeer hotels to fight COVID-19?
Private property regulatory TREND. COVID + Drones
Where are drones being used as a method to combat the pandemic?
- France, Italy & China use drones to monitor public places
- Chula Vista, California is using drones to communicate with people who live in remote areas
- Police in Derbyshire, U.K. has used drones to take photos of people engaged in nonessential activities like at the beauty shop
How are state legislative acts matching drone use for pandemics?
- Drones will require warrants, without an exception for pandemics in Minnesota SF 3704 (2020 | MN)
- Tennessee’s SB 1791 (2020 | TN) allows drone use by law enforcement without a search warrant to investigate the scene of a crime or to “enhance security” of public events attended by more than 100 persons. Video of public events must be posted online within 1 day.
- New Jersey Assembly bill A2301 (2020 | NJ) prohibits law enforcement from using drones for surveillance
- South Dakota bill, HB1059 (2020 | SD), signed by the governor, makes it a misdemeanor to use a drone “to kill or attempt to kill a wild bird or animal,” or to use one to locate, spot or drive prey.
Governing | Legislative Watch: The Rise of Drones During the Pandemic
TX Attorney General Opinion. Occupational Licensing of Physicians & Optometrists
KP-0297 (2020) clarifies which licensing agency has authority when a physician, a retailer and an optometrist co-exist in one space.
The takeaways:
- Physicians without a doubt can practice optometry
- just because an act is done at the physician’s direction does not create a blanket exemption from the Texas Optometry Act
- without this view, the Optometry Act is negated, an optometrist remains regulated by the Optometry Board.
Anatomy of Dallas Short Term Rental Ordinance
How did Dallas begin taxing short term rentals? When a company the City hired to collect back taxes sent bills for unpaid hotel occupancy tax to short term rental owners
How will Dallas collect the hotel tax from short term rentals moving forward?
- hosts will pay quarterly taxes
- will not allow rental apps to collect the tax like the State of Texas and other municipalities do
How will regulation move forward? A task force will make recommendations to City Council
What are the challenges?
- Distinguish between individual property owners & corporate entities operating multiple properties
- San Francisco-based Sonder intends to rent an entire 27-story apartment building in Uptown and run all 270 units as short-term rentals for 10 years
Avocate OakCliff | How will the City regulate Airbnb rentals?
TX Attorney General Opinion. Disasters + Commandeering Property.
Who is asking for an attorney general opinion? The Hood County Attorney
What questions does the Hood County Attorney want answered?
- May local governments commandeer private property under Government Code Section 418.108, when this authority is only vested in the governor under section 418.017(c)?
- Is temporarily closing business or access to a business a depravation of private property without the due course of law under the Fourteenth Amendment to the U.S. Constitution and Section 19 of the Texas Bill of Rights?
- Are the state and local executive orders unconstitutional under the Texas and United States Constitutions?
Local COVID TREND. Converting vacant buildings to homeless shelters
Where: San Francisco
What: A “swanky” tennis club slated to be redeveloped will temporarily house homeless to limit the spread of coronavirus.
TX Attorney General Opinion: Essential Business
In KP- 0296 Texas Attorney General offers this rational for including firearms sales as an essential business:
- Cities and local governments are limited by this phrase in the Texas Local Government Code: “notwithstanding any other law.”
- This prevents local governments from restricting the sale of firearms
- Texas Government Code also limits local government ability to interfere with firearm sales in times of emergency
Update to : Texas Attorney General Opinion: Essential Business? What is it?
What question will the Texas Attorney General will answer?
whether a firearm retailer is an essential business for purposes of an emergency declaration
Who requested the opinion? State Representative Dustin Burrows
New Kid on the Block. COVID 19. Connecting Small Business to Consumers.
Who: Institute for Justice Clinic on Entrepreneurship at the University of Chicago
What: www.ShopInPlaceChi.com
How does it work? Connects people to neighborhood small businesses that are still selling products essential for residents sheltering at home
Airbnb & COVID 19
Airbnb is offering “free or subsidized housing” for 100,000 people working as frontline healthcare.
How will the offer be executed?
- fees will be waived
- include new protocols around cleanliness to account for COVID-19
- minimum of 72 hours between stays
- a fund established for those who want to provide monetary support, with 100 percent of all proceeds going to nonprofits working on COVID-19 relief
- partnerships with Red Cross, the International Rescue Committee, the International Medical Corps & other non-profit groups
TechCrunch | Airbnb to provide free or subsidized housing for 100,000 COVID-19 healthcare workers
COVID-19 Shutdowns + the US Constitution = Compensation? Bonjour, the Takings Clause.
3 Reasons for no compensation for COVID-19 shutdowns?
- Precedent. US Supreme Court precedent doesn’t support it. Remember Kelo?
- Police Powers. Government has police powers to protect health & safety that are excepted from the Takings Clause
- History. During the 1918-19 Flue epidemic, the last time of a health epidemic, there was no compensation.
Reason | Does the Takings Clause Require Compensation for Coronavirus Shutdowns?
What is the Legal Footing Behind Governor Abbott’s Coronavirus Executive Order? | The Texan
Texas Attorney General Opinion: Essential Business? What is it?
What question will the Texas Attorney General will answer?
whether a firearm retailer is an essential business for purposes of an emergency declaration
Who requested the opinion? State Representative Dustin Burrows
Texas Attorney General Opinion. Occupation Battle. Do property inspectors need plumbing certification?
The Attorney General Opinion: KP-0294 (2020)
What question did the Attorney General Opinion answer? Whether real estate inspectors need regulatory go ahead from the State Plumbing Board to conduct camera inspections of sewer lines.
Why is this an issue? The Texas Real Estate Commission passed a rule requiring inspectors to also have a plumbing license & the State Plumbing Board defined service of a plumber to include camera inspections
The answer: The Plumbing Board rule goes too far because it impermissibly imposes an additional burden, limit, or condition in addition to what the Legislature has required
Regulatory Solution for the Housing Crisis: Vacancy Fines
The legislation: SB 1079 (2020 | CA)
What would SB 1079 do?
- Allow cities to impose vacancy taxes on housing that is vacant for more than 90 days
- Allow the cities to use eminent domain to use the property for affordable housing
Has this been tried another cities? Yes,
- vacancies dropped 22% in Vancouver
- Vancouver also provides the following 3 types of property owners varying exemptions from the tax:
COVID19 + Condemnations. How is this possible?
2 types of property that can be condemned under a federally declared emergency like the COVID19 declaration:
- real property for physical facilities the government may need
- supplies such as medicine, food, equipment, parts, etc.
What allows the condemnations? The Stafford Act
Lexology | Faegre Drinker Biddle & Reath LLP | Condemnation and COVID-19: When National Emergencies and Eminent Domain Collide
Local Pawnbroker Rules for Personal Property? Texas Attorney General Opinion.
Do municipalities have authority to set the amount of time a pawnshop holds personal property? No
Do municipalities have the authority to require pawnshops to electronically report personal property to law enforcement? No
Why?
- Texas Pawnshop Act preempts municipal regulation
- Section 371.005 specifically gives the Legislature exclusive authority over the operation of pawnshops
- The ordinance also expressly conflicts with administrative regulations authorized by the Pawnshop Act
Is there wiggle room for municipal regulation? yes
- municipalities can regulate things related to pawnshops that are not the operation of the pawnshop
- municipalities can reduce the amount of time pawnbrokers must retain purchased goods to less than 20 days
Airspace Easement Legislation + Eminent Domain
Where: Rhode Island
What: Specify that eminent domain can be used for airspace easements by the state Department of Transportation to remove trees and other property that obstruct incoming aircraft at the state’s five general aviation facilities
Why legislation? conform eminent domain laws to FAA mandates
Newport this week | Proposed Legislation Creates Airspace Easements
What does the eminent domain opposition to Texas High Speed Rail look like?
Why is there opposition: “People in the middle are getting all of the negative and none of the positive,”
What has Congressman Brady said? “My concern is not with the concept of high-speed rail. I just want to make sure our communities are protected.”
What would allow the company to use eminent domain? Approval from the state to operate as a railroad
What Texas Central Rail is saying about eminent domain: “Our goal is that payments go to landowners and not attorneys.”
Incentivizing the Use of Eminent Domain for Flood Zones
How is the federal government incentivizing eminent domain? By tying federal climate change funds to local governments agreeing to use eminent domain to remove homeowners from flood zones
New York Times | Trump Administration Presses Cities to Evict Homeowners from Flood Zones
Eminent Domain Bill to Support Hospitals
How would an eminent domain bill help hospitals?
- When a hospital is being sold, for bankruptcy or other reasons
- The bill would ensure hospital real estate owners can’t block hospitals from continuing to serve the community
Becker’s Hospital Review | New Jersey officials slam Alaris Health owner for blocking hospital sale
Property Rights + Animal Abuse
Illinois is proposing a court-appointed system of advocates in animal cruelty cases.
The legislation: HB 3995 (2020 | IL)
How would the court appointed animal advocates work?
- The list would be compiled by the Dept. of Agriculture
- It would include pro bono attorneys and law school clinics that can offer pro bono legal services
- The advocate would ” represent the interests of justices regarding the health or safety of the dog or cat”
Opponents say cats and dogs are a property right.
The Hill | Protecting the most vulnerable: A proposed law to create animal advocates
State Pulls Back from Short Term Rental Preemption
Where: Arizona
What: Since 2016 has had taste preemption over short term rental ordinances, chipping away at this preemption is HB 2875 (2020 | AZ)
How will HB 2875 limit preemption?
- Allow cities to limit the number of people who can occupy a house to 2 per bedroom
- Allow cities to require the installation of safety and noise-monitoring equipment
- Allow cities to require that renters use any available off-street parking
Tucson | Arizona House votes to restore some local rights to regulate short-term rentals
Local TREND. Balanced Development Plan. What is it? How does it work?
In March 2020, San Francisco, California voters approved the Balanced Development Plan to tie office space development to affordable housing goals.
What does this mean? No more available office space, if affordable housing goals are not met in San Francisco.
What did the City’s economist say about the proposition?
- it will cost the city tens of millions of dollars in revenues
- it will cost the city thousands of jobs per year
- it will limit the city’s GDP growth by tens of billions over the next 20 years
Lege: Stronger Property Rights by Disincentivizing Gun Free Zones.
If this isn’t a mouthful- disincentivizing gun free zones to strengthen property rights.
Who is saying this? A Republican Minnesota State Rep.
So what does he want to do to disincentivize gun free zones? Allow anyone injured by a gun on property that has established a gun free zone to be able to sue the property owner.
The Neighbor | Legislator’s bill would disincentivize gun-free zones
Lege TREND. New Route for Short Term Rental Legislation. Redefine RENTAL.
Where: Georgia
What is Georgia’s HB 523 (2020 | GA) goal? To differentiate between a homeowner who wants to rent out their house for a total of less than 30 days & long term rentals, for properties that are rented for cumulative periods that exceed 30 days.
How did the bill address this? By defining “short term rental” and “long term rental”
Georgia Recorder | Lawmaker rethinks bill to prevent local short-term rental restrictions
Lege TREND. Assist Mobile Home Owners to Buy Their Parks.
Where: Colorado
The legislation: HB 20-1202 (2020 | CO)
How would it work?
- Before a park owner can sell. 1 year advance notice to residents.
- Resident Opportunity to purchase. The notice to residents must include a reasonable offer for the land.
- 3 month opening to buy. for the mobile home residents
Denverite | A proposal to help mobile home owners buy their parks advances at the Capitol
Local TREND. Property Rights > Tree Protection
Where: North Smithfield Rhode island
What: City Council was considering a tree protection measure, but defeated the measure
What did opponents to the tree protection measure say?
- overreaction to a 400-acre solar project
- more difficult for landowners to take down trees on their property that pose a hazard during storms
- we don’t want to restrict how landowners use their land
The Valley Breeze | Citing property rights, council rejects law to protect trees
Anatomy of a Pit Bull Ban. Local Preemption
Where: Michigan
Is this a new issue for the Michigan Legislature? No.
The legislation for 2020: HB 4035 (2020 | MI)
The goal: Prohibit cities from enacting dog breed specific bans
What have other states done to address dangerous dogs?
- 8 states prohibit any local breed-specific regulations
- 13 prohibit breed-specific classification of dogs as dangerous
Michigan Live | Pit bull ban debate reemerges in Michigan legislature
Lege TREND. Garden Regulation.
Where: Illinois
What: HB 4704 (2020 | IL)
What entities would have regulatory authority over gardens? State and local officials
What specific regulatory authority?
- restrictions on water use during droughts
- property set backs
- maximum lot coverage
- utility safety
- fertilizer use
- invasive species control
- regulated substances like hemp and cannabis
3 Arguments Eminent Domain not for Sale in Legislation
Who: Missouri Farm Bureau
What reasons does the Farm Bureau give for eminent domain not being for sale in Missouri?
- Eminent domain isn’t for projects that enrich the owner, that’s not a public benefit
- There is no public benefit for the flow of goods or things through a state
- An eminent domain project that has no clear public benefit but pays local governments to support local public use projects is nothing more than corruption
Missouri Times | Opinion: Eminent domain is not for sale in Missouri
+1 State Right to Build Legislation
Where: Wisconsin
What does Wisconsin’s Right to Build legislation allow? owners of waterfront property would have the right to build docks and other structures even on other people’s land
How does the bill address the right to build on water front property over another’s property?
- owner of land abutting a navigable waterway “is presumed to be a riparian owner” (OWNER A)
- OWNER A is entitled to the same rights as OWNER B “even if the bed of the waterway is owned in whole or in part by another, unless those rights are specifically prohibited by the deed to the land.”
Who is backing it? Realtors
What exceptions are included?
- special protections for hydroelectric dam operators to
- deny dock requests
- charge “reasonable” fees
- impose restrictions to comply with state & federal dam regulations
WindStorm Insurance Meet WildFire Insurance.
California is considering AB 2367 (2020 | CA) would require insurance companies to cover homes in wildfire risk areas
Why is the legislation necessary? Wild fire policies are being cancelled by insurers
What else is included in the legislation in addition to the required policy coverage option?
- state will develop standards for reducing fire risks
- applies only to existing homes
- will discourage new developments in fire-prone zones
- homeowners and entire communities must “harden” properties against wildfires
California Insurance Commissioner | Mandatory Moratorium on Non-Renewals After Recent Wildfire Activity
Lege TREND. UPDATE Building without Permits Legislation.
Arizona House has passed HB 2084 (2020 | AZ) that would allow private property owners to build a wall without permitting.
The Daily Courier | Arizona House: Border-dwellers can build walls without permits
State Legislation. Border Walls on Private Property.
- January 9, 2020
Which state? Arizona
What is Arizona allowing with border walls on private property? HB 2084 (2020 | AZ) will allow:
- The goal is to preempt “overzealous local officials will block construction by erecting procedural barriers.”
- Border walls on private property would not be subject to building codes or safety inspections
- To prevent what happened in Texas when local officials were awarded a cease and desist order for a private border wall that was ultimately subject to local building & safety codes
Right to Build Constitutional Amendment in the West
Where: California
Constitutional Proposition creating the Right to Build would:
- address the housing affordability crisis
- encourage rapid building
- prevents builders from offloading costs onto 3rd party residents
- costs: necessary private roadways, roadway repairs, and/or utility connections
- costs could be born by a private associations
Lege TREND. Property Rights + Wildfire Prevention
Where: Oregon
What: SB 1536 (2020 | OR)
How does Oregon’s SB 1536 protect private property while tackling wildfire prevention?
- Creates a program for the state fire marshall to work with local non profits
- the local non profits will educate property owners on plants and clearing lower limbs on trees in a 100-foot perimeter around a home.
- There will be NO FINES. Only education.
KATU | Oregon Legislature considers bill to work with homeowners ahead of wildfire season
Eminent Domain to Stop Disease
What? China has granted 2 cities the power of eminent domain to stop the spread of Coronavirus
To acquire the property, the cities have to do 3 things:
- provide official requisition documents to the property owners
- return the items, as necessary
- compensate owners, as necessary
What does a Renters Bill of Rights look like in a Red State?
Where: Utah
What? A package of legislation that will require:
- landlords to disclose early on an itemized list of fees a prospective renter could have to pay HB 211 (2020 | UT)
- allow local governmental entities to adopt rent control HB 131 (2020 | UT)
Local Goverment + Eminent Domain + Utility = Our City Our Power
Where: San Francisco, CA
What: San Francisco is considering eminent domain to acquire PG&E local wires and taking over electricity service within the city
5 Reasons why the city wants to take over the utility service:
- Local control of the entire San Francisco electric system
- increased affordability
- safer
- more reliable
- more accountability
Bloomberg | San Francisco Tries to Rally Public to Buy Piece of PG&E
Local TREND. Eminent Domain to Control Housing Costs
Where: Los Angeles
What: L.A. is considering using eminent domain to stop rent spikes
Why: To retain affordable housing in L.A.
Reason | L.A. Politicians Want To Seize Private Apartment Building to Prevent Rent Increases
New Lege. New Eminent Domain Ban
Bonjour to eminent domain prohibitions for HyperLoop Projects
Where is this happening? Missouri
What does the legislation look like? HB 1963 (2020 | MO)
Is there a boot and suspender approach to the eminent domain ban? Yes, the bill expressly prohibits eminent domain and prohibits the use of public funds
St Louis Post Dispatch | Hyperloop gets boost in Missouri House after backers add eminent domain ban
Lege TREND. More Competitive Bidding. Housing Rebuilt after Disaster.
The State: West Virginia
Why does West Virginia want to increase the competitive bidding process for rebuilding after a disaster?
- Increase the number of bids by local companies
- Streamline the purchasing process after a declared disaster
- Stop the inefficient process of bidding out large projects out in a lump sum
Metro News | Legislature passes bill aimed at increasing competitive bids for post-disaster housing
+1 State. No Eminent Domain for Trails & Rec.
Utah + Ohio = States that want to stop eminent domain for recreational purposes.
Ohio wants to stop unelected officials from using eminent domain for trails.
Utah’s HB 133 (2020 | UT) prohibits the use of eminent domain for trails that are not regionally significant.
What is a regionally significant trail? a trail that goes through multiple municipalities or counties
KSL | Lawmaker to counter use of eminent domain for trails, other recreation uses
118:42 the vote to deny eminent domain to transmission lines
Where: Missouri
Why: The line connects Kansas and Indiana by traveling through Missouri
Lege TREND. Truth in labeling legislation for milk and meat. What’s happening?
Which states have passed truth in labeling laws for milk and meat? Arkansas and Mississippi
What happened to these laws? Overturned in courts as violating the first amendment
Capital News Service | Bill defining milk advances in Virginia legislature
Lege TREND. Dairy Farmers. Property Rights in Milk.
Where: Virginia
What: A bill to define what constitutes milk
The legislation: HB 119 (2020 | VA)
How does the bill define milk? As coming from hoofed animals to exclude Oat “milk” and Rice “milk”
The opposition: Plant Based Foods Association
Virginia Capital News Service | Bill defining milk advances in Virginia legislature
Lege TREND. Public Property + Drones + Eradicate Evasive Species
Florida’s HB 659 (2020 | FL) would allow drone use to eradicate evasive species and help fight wild fires.
Who would be permitted to use the drones?
- non law enforcement staff of their parks department and their forestry service
- firefighters
What evasive species is being targeted:
- Pythons in the Everglades
- lygodium, a climbing fern smothering native vegetation
Property Development TREND. New Homes. No Parking. Fewer Golfers.
Where: Tokyo
What: A property developer is building homes without parking but with membership to a ride share program
The benefits to home buyers: reduced costs from eliminating parking space
Japanese Researchers say decreased auto ownership has led to less interest in golf.
Nikkei Review | New Tokyo homes ditch parking spaces but offer car sharing
Property Rights. Cattle Industry. vs. Plant based “meat”
The legislation: LB 594 (2020 | NE) Provide for a deceptive trade practice relating to meat under the Uniform Deceptive Trade Practices Act
Where: Nebraska
Why? Support for the cattle industry
What stalled the bill? A call for federal guidance
The opposition: Impossible Foods & the Plant Based Foods Association
Lege TREND. Preempt Local Short Term Rental Rules
Where: Florida
What: HB 1011 (2020 | FL)
What is the author (R) saying saying?
- “some local governments have forgotten this foundational principle of our country and are infringing on citizens’ rights.”
- need a ” fair and consistent approach for vacation rentals”
Are there exceptions? yes, grandfathers in local rules that were in effect before June 2011
Framework for the statewide requirements for short term rentals:
- property owners must display their license
- sales tax will be collected
- tourist development tax collected
FLAPOL | Bill preempting local vacation rental regulations gets first House hearing
Lege TREND. No Eminent Domain by unelected officials.
Where: Ohio
What: HB 476 (2020 | OH)
What limits are placed on eminent domain?
- prohibit eminent domain by un-elected government entities
- for the purpose of recreation
WFMJ | Rep. Manning introducing legislation to fight eminent domain for Bike Trails
Prohibiting Masks and Hoods on Private Property
What? Tennessee’s HB 1629 (2020 | TN) would prohibit the wearing of masks and hoods on public property and on private property, unless the owner consents
Exceptions? Holidays, sporting activity, trade, occupation, theatrical production, parade or masquerade ball or during an emergency drill or emergency event
WVLT | Bill seeks to make wearing hoods, masks illegal in Tennessee on public property
State regulation of Rising Sea Levels. What do you do with land that both private land owners & the state can claim?
Where: Lousiana
What has happened in Louisiana?
- 2018, Legislature rejected a push to allow fishing boats onto land that has any private ownership claim
- In 2018 Lousiana studied the issue in the Public Recreation Access Task Force
- In 2020, the Public Access Task Force report offers suggestions for regulation:
- BALANCE INTERESTS. Its recreation sportsmen VS. respect for landowners’ legitimate interests in “managing the use of their land and in the development of mineral rights associated with that land.”
- STATE FISCAL IMPACT.
- Don’t cut mineral tax revenues
- Don’t increase administrative costs for new access regimes from new access pathways
What would regulatory proposals look like?
- state government could buy recreational access servitudes from landowners
- give private landowners tax incentives to allow recreational access
- strengthen landowner immunity to lawsuits in exchange for allowing recreational use of their properties
- allow the state to negotiate permanent boundary settlements
- guarantee access to all surface waters that ebb and flow with the tide
- let landowners donate surface ownership of a tract of land to the state & reserve mineral rights in perpetuity
Minden Press Herald | Louisiana lawmakers try to balance property rights with public land use
Dallas Short Term Rental Ordinance. By the Numbers.
- 20% of short term rental properties are remitting taxes
- 1,200 rentals are subjected to Dallas ordinance
- 371 have registered
- 237 have begun remitting taxes
Dallas Observer | About 20% of City’s Short-Term Rentals Are Paying Required Tax
3 Reasons Eminent Domain Stops High Speed Rail in Texas.
Who is making these arguments? REP. RON WRIGHT (R-TEXAS)
What 3 reasons does he give for eminent domain stopping Texas Central, a Texas high speed rail line?
- The entity has been denied, so far, state eminent domain authority
- The entity has been denied, so far, federal eminent domain authority
- The high speed rail can’t break ground until the land issue is resolved, as it has only acquired 1/3 of the needed property
The Hill | Proposed Texas rail line has the look of a high speed fail
Lege TREND. Property Rights Protections for Pet Owners.
Where: New Hampshire
What: Preventing discrimination in the sale or rental of property to pet owners
How? HB 1391 (2020 | NH )
4 Policy reasons to support this legislation:
- reduce killing and costs at the local animal shelter
- increase adoption revenues & tax revenues
- improve civic engagement and public health
- encourage both individuals and businesses to relocate to a community.
Concord Monitor | Editorial: An avalanche of bills – with a bunch of bad ones
Private Property Rights. Permit Later. Build Water Abatements Now.
Where: Michigan
What: SB 714 (2020 | MI)
How does the bill help property owners? The bill allows property owners to build approved water abatement measures to protect their property before obtaining a permit.
When can you build before permitting? During an emergency when lake levels reach dangerous heights
Holland Sentinel | Letter: Dangerously high water levels require immediate action
Lege TREND. Private Property Rights. Excepting Farms from Nuisance Statutes.
Where: Georgia
Why? high-dollar verdicts against hog producers in North Carolina concerned Georgia farmers and ranchers
How did they protect farms? HB 545 (2019 – 2020 | GA) by limiting who can file nuisance suits to those who own property within 5 miles and limit the time for which suit can be filed to 1 year from start of farm/ranch operations
Georgia Recorder | Online sales tax, other 2019 bills due for return engagement this year
Refreshing Recollection. Model Eminent Domain Legislation & Local Ordinances.
What’s touted as model eminent domain legislation? Arizona’s Property Ownership Fairness Act
Who says so? Right and Libertarian groups like CATO, Goldwater Institute + Urbanity Project of the Mercatus Center at George Mason University
Why is the Property Ownership Fairness Act popular? Some say it is middle ground where neither property rights nor local government action are absolute. The Act says if a local government action diminishes the value of land by imposing new limitations on the use of the property, like increasing the minimum lot size or changing the zoning to lower-value uses, it must compensate the property owner for their loss.
CATO | Property Ownership Fairness Act: Protecting Property Rights
Legislative TREND. Reimbursing Property Owner Attorney Fees.
Where: Missouri
What’s the Missouri legislation look like? HB 1412 (2020 | MO)
Why is the author motivated?
- Court rulings in the Grain Belt Express transmission line/eminent domain case
- Eminent Domain is too powerful of a tool and is unfair to land owners
State Legislation. No Eminent Domain for Grave Sites. No Eminent Domain for Historical Property.
Where: Missouri
What’s the Legislation? HB 1751 (2020 | MO), the Right to Remember Bill
What eminent domain use would be prevented?
- No eminent domain for historical marked lands and grave sites
- Unless a local governmental entity hold. public hearing and the action receives majority approval
State Legislation. Border Walls on Private Property.
Which state? Arizona
What is Arizona allowing with border walls on private property? HB 2084 (2020 | AZ) will allow:
- The goal is to preempt “overzealous local officials will block construction by erecting procedural barriers.”
- Border walls on private property would not be subject to building codes or safety inspections
- To prevent what happened in Texas when local officials were awarded a cease and desist order for a private border wall that was ultimately subject to local building & safety codes
Anatomy of a Rural Rights Association
What is this group? Rural Rights Association of British Columbia
Why did the group form?
- Property rural property rights from urban rules
- Special district rules that limited RVs on private property
- A greater voice for rural residents who are overshadowed by urban voices
Clearwater Times | Rural Rights Association begins expansion
Business TREND. Land Sharing. Church Sharing App.
What: Church Space connects churches with available space in a church sharing app
Where is it operating? Dallas TX
CBN News | Churches Join the Hottest New Business Trend: The ‘Sharing Economy’
Land Use. Shooting Range Local Ordinance Requirements.
Where: Jefferson County, Washington
What ordinance would limit shooting ranges? An ordinance to require that all shooting ranges be indoors and applies to commercial and industrial zoned land
Peninsula Daily News | Jefferson County planners want to limit shooting ranges to indoors
Business TREND. Farm Branding by Drone & Blockchain to Support Sustainability
Where: Eugene Oregon
What is farm branding? Supporting farms that tout regenerative, sustainable and organic methods
What’s the company? AgCheck
How does it work?
- Drones will photograph farming practices
- A database will be created
- Blockchain will store the farm database
- Allows suppliers & consumers to verify that farmers are living up to practices they preach
Governing | Oregon Believes Drones, Blockchain Can Better Support Ag
Campaign TREND. Data ownership is a property right
The Campaign: Andrew Yang
What would ownership of your personal data mean? You could make money off of letting companies use your data
Why? using Americans’ personal data has become a $198 billion industry
Local Building Codes + Homelessness = Mandatory Rest Locations
Where: Portland
What: New proposal from Portland’s planning and sustainability commission would require new builds to have “opportunities to rest and be welcome” for people who do not live on the property
Daily Wire | Portland Wants Private Property Owners To Add ‘Mandatory Rest Spaces’ For The Homeless
Redefining Owner Occupied for Short Term Rental Ordinances
Where: Colorado Springs, CO
How is Colorado Springs choosing to define owner occupied? An owner must inhabit the property for more than 185 days per year
What if an owner does not occupy property for more than 185 days per year?
- Not be allowed in single-family residential or single-family planned unit development zoning districts
- In other zoning districts, nonowner occupied units must be separated by 500-foot buffers
Will existing properties be grandfathered in and excepted from the new rules? Yes, as long as they timely file their annual application and fee
Colorado Springs Gazette | Colorado Springs City Council approves more rules for short-term rentals
Local TREND. Bird Friendly Building Ordinances
Where: NYC
What is a bird friendly building ordinance? An ordinance that reduces the number of birds injured by flying into buildings
How?
- the use of special materials along facades to avoid avian strikes
- applies to under under 75 feet, the maximum height of most bird flight
What construction projects will it apply to?
- all new construction
- all major alterations to buildings
Are other jurisdictions doing this? Yes
The City | HOW BIRD-FRIENDLY BUILDING RULES WILL FLY IN NEW YORK
Eminent Domain + More Considerate Discourse
Where: Texas
Who: Texas State Representative Burns
Why? Division and partisanship accomplish little
How does this relate to eminent domain? He will continue to push his eminent domain reforms HB 991 (2019 | TX)
Cleburn Times Review | State Rep. Burns calls for more considerate discourse
Business TREND. Reigning in Short Term Rental Nuisances
Who: Airbnb
What is Airbnb doing to address short term rental nuisances?
- prohibit “open invite” parties at all of its accommodations
- Open invite parties are open to anyone and advertised on social media
- prohibit large parties at apartment buildings & condos
- identifying listings globally that may be violating the party house ban
- issuing new guest behavior rules
- 1 warning for excessive noise, unauthorized guests, unauthorized parking, unauthorized smoking or excessive messiness reported by a host or a neighbor
- After 1 warning, violations will result in account suspension or removal
- dedicated hotline for mayors and city officials
Mercury News | Airbnb introduces new rules to rein in parties, nuisances
Lege TREND. Stronger Trespass Laws for Farms.
Where: Ontario Province, Canada
What: Trespass and Protecting Food Safety Act increases fines and penalties for people who trespass on farms or interact with livestock being transported.
How would the farm trespass enforcement be enforced?
- $15,000 fine for first offenders
- $25,000 for subsequent offenses
Do farms get increased liability protection too? Yes increased protection against civil liability if a trespasser is hurt on farm property
Woodstock Sentinel Review | Legislation proposes stiffer penalties for farm trespassers
Lege TREND. Attorney Fees & Eminent Domain Proceedings.
Where: Missouri
The legislation: Pre-filed HB 1412 (2020 |MO)
What attorney fees would be awarded?
- Fees incurred by a property owner
- Actual reasonable attorney’s fees and costs incurred
Webster County Citizen | Solon filing bills ahead of next month’s session
Business TREND.Forest Land Management.
Who: Ikea
Where: East Texas
What: 42,000 of acres of pine forest
Why: “high standards related to responsible forest management” & the company goal to become self-sustaining
Dallas Morning News | Why is IKEA buying up thousands of acres of forestland in East Texas?
What happened when $4M was spent to overturn a crack down on short term rentals?
Where? Jersey City, New Jersey
What happened? After $4.2M spent on a local elections, formed a PAC called Keep Our Homes, and this week voters approved short term rental restrictions
What’s the background between the city and Airbnb?
- 2015 they reached an agreement on short term rentals in the city
- In 2015 there were 300 listings, within a year 2000 listings, & 3000 listings today
- June 2019 the city passed a 60 day cap, prohibition of renters listing on airbed, and limits on multifamily building airbnbs
Wired | How Airbnb’s Fight to Overturn a New Jersey Law Imploded
New Kid on the Block. Database for Available Property Rights from air rights to mineral rights.
Who: RealX Ventures Inc.
What: An online database of available property rights
How does it work? Owners list their property rights & offers can be made and accepted through the platform
Expansion: other states, timber rights, solar rights
Pittsburgh Business Times | Startup takes high-tech approach to a low-tech industry
Update on the Brothel + Water District + Eminent Domain
How much time is too much time to have no enforceable conflict of interest in Nevada? 2 decades
What changes are being considered?
- Part ways with the developer who also employs all the board members of the water district
- Establish procurement procedures
- Clear conflicts of Interest Disclosures
Update to this gem from earlier this month:
Where: Storey County, NV
How did this come about?
- The owner of the Mustang Ranch is a developer at the Industrial Park
- This same person is also a Water District Commissioner
- This person signed development agreements as both the developer and the water district representative
- All employees of the Water District work and live at the brothel
The governance issue with the water district: Simultaneous Public and Private Benefit
Why is Repeal of Statewide Airbnb Law the 1st bill to be filed in this state?
Where: Arizona
What: HB 2001 (2020 | AZ)
How long has Arizona prohibited AirBnB bans? Since 2016
What arguments are lawmakers in support of the repeal?
- investment groups are buying properties for short-term rental use
- “pricing out Arizonans”
- creating housing shortages
- neighborhoods are becoming businesses
- no one intended for this to happen
- return to local control
The Center Square Arizona | First Arizona bill for upcoming session seeks to repeal Airbnb law
TREND spotting. US Supreme Court. Special Districts and Eminent Domain.
What: the Institute for Justice has asked SCOTUS to review WOODCREST HOMES, INC., v. CAROUSEL FARMS METROPOLITAN DISTRICT,
Why? A developer formed a special municipal district, legally under state law, and then exercised eminent domain
What’s the private property right at issue? Whether eminent domain can be used by a private entity for the private entity’s benefit.
The Neighbor | Libertarian law firm asks SCOTUS to consider Colorado eminent domain case
Anatomy of Private Property Rights Group
Where: Tulsa OK
What project served as the catalyst for this private property rights group? A drainage proposal that the group believes disguises a redevelopment plan
Private Property Rights Group moniker: Save the Pearl Coalition
What end result does the group want? For the project to be prohibited from using eminent domain.
+1 City. No Eminent Domain Resolution
Where: San Antonio TX
What: Resolution opposing a pipeline’s use of eminent domain
What legislative changes are in the mix?
- No pipelines over the environmentally sensitive regions
- Give landowners and communities a stronger voice and more input for pipeline routes
Houston Chronicle | San Antonio becomes latest city considering anti-pipeline resolution
Local TREND. Adverse Possession Against City Land.
Where: Pennsylvania
What: PA’s Supreme Court ruled that a person may take by adverse possession land that is owned by a city
Is there anything unusual about the property?
- It was taken by eminent domain
- Nothing was built on the property
- The City did not maintain the property
The Court’s rational:
- Cities should have ” limited responsibility to monitor their properties at some point during the twenty-one-year prescriptive period”
- This will “promote the goals of municipal efficiency and the active and efficient use of the land by motivating municipalities to either use the retained property for the public benefit or sell it to the private individuals”
- If the city sold the property, the property could be “taxed for the municipality’s and the public’s financial benefit”
Lege TREND. Taxing Empty Houses.
Where: Wyoming
What legislation? Draft legislation by WY Rep. Yin
How is the tax levied?
- On Property that is vacant 6 months or more per year
- Flate fee
- 5% of revenue stays with county
- 95% goes to the state Property Tax Refund Program
Policy Supporting argument: This incentivizes more housing in the community by encouraging renting vacant houses
Have other cities tried this? YES
- Vancouver say a 15% decline in the vacancy rate
- Paris raised the tax rate on vacant homes
Lege TREND. Lessons on How to Balance Eminent Domain and Oil & Gas Industry.
Where: Texas
What can we expect? Recommendations that “ensure stability between private property owner protections and emergent oil and gas infrastructure.”
Why? Like other areas of the Country, Texas landowners and pipeline companies are at loggerheads over siting pipelines
Law to Force Lenders to Maintain Property During Foreclosure
Where: Washington State
What: a 2018 law that allows cities to require lenders to maintain properties that are in foreclosure
Why? To limit the number of blighted properties
Eminent Domain. A Water District. The Largest Industrial Park + a Brothel
Where: Storey County, NV
How did this come about?
- The owner of the Mustang Ranch is a developer at the Industrial Park
- This same person is also a Water District Commissioner
- This person signed development agreements as both the developer and the water district representative
- All employees of the Water District work and live at the brothel
The governance issue with the water district: Simultaneous Public and Private Benefit
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