- Too much of a stretch: US nixes copyright in yoga exercises [Bloomberg, earlier]
- “Know your rights dealing with cops” material construed as probative of criminality [Popehat] Is Justice Scalia really an “unlikely” champion of defendants’ Constitutional rights? [LATimes, Adler] “Overcriminalization: The Legislative Side of the Problem” [Larkin/Heritage, related Meese] When feds spring false-statements trap, it won’t matter whether you committed underlying offense being investigated [Popehat] “‘Clean Up Government Act’ sparks overcriminalization concerns” [PoL]
- Former Attorney General Mukasey on ObamaCare recusal flap [Adler]
- American Antitrust Institute proposals might be discounted given group’s longstanding pro-plaintiff bias [Thom Lambert]
- NYC: “The tour guide said that the way to get rich is to be a zoning lawyer.” [Arnold Kling]
- “Obama’s Top Ten Constitutional Violations” [Ilya Shapiro, Daily Caller] In at least two major areas, “Obama has broken with precedent to curtail religious freedom” [Steve Chapman]
- Ted Frank-Shirley Svorny med mal debate wraps up [PoL, Bader]
Posts tagged as:
land use and zoning
The Los Angeles suburb claims it adopted the ban because of dangers posed by chemicals, toxins and plastics present in artificial turf. Might there perhaps be an alternative motive, that of policing residents’ aesthetic taste in landscaping? Well, the ban applies only to front yards: “When asked why the fake grass would continue to be allowed in backyards, officials had no answer.” [CBS Los Angeles]
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The Washington Post offers an editorial caution to lawmakers in Montgomery County, the famously liberal slice of Maryland suburbia:
A bill before the Montgomery County Council would force big-box retailers such as Wal-Mart, Home Depot and Target to negotiate with neighborhood groups as a condition for getting their new stores approved. This is such a spectacularly bad idea, on so many levels, that it’s hard to imagine how it came to be taken seriously in the first place.
By contrast, the nearby District of Columbia, often seen as a challenging place to do business, seems to be making its peace with Wal-Mart, which has announced plans to open six new stores there.
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Following up on last week’s post, Gideon Kanner calls our attention to this summer’s case of Clover Valley Foundation v. City of Rocklin. As Prof. Kanner wrote at the time in the L.A. Daily Journal:
This was a lawsuit challenging a housing project on environmental grounds some 30 years after the subject property was zoned for housing development, 20 years after the developer’s request for a permit, and after 10 years of planning and environmental review, plus a nearly one-half reduction in the number of permitted dwellings, a five-fold increase in open space, and after millions of dollars were exacted for in-lieu payments. The city approved the project in 2007.
Then the NIMBYs attacked in court. To its credit, the court in effect said “enough already” and rejected the NIMBY challenge. But the court also said that this was a case in which environmental laws “worked.” I would hate to see what it would take for their Lordships to acknowledge a case in which those laws didn’t work.
For more of a flavor of the Clover Valley case, see the write-up from the Meyers Nave law firm.
Cato-intensive edition:
- David Bernstein’s Rehabilitating Lochner, recently praised by George Will, is part of Cato series challenging constitutional law myths [Roger Pilon, earlier; Bernstein's recommended-books list]
- Constitutional conservatism: the forgotten history [Johnathan O'Neill, Heritage] “Progressive originalism” a development to be welcomed, but faces uphill slog [Damon Root, Reason] Tim Lynch: constitution is too hard to amend ["Amending Article V", Tennessee Law Review] Toobin’s “startling reappraisal” of Clarence Thomas in The New Yorker [Walter Russell Mead]
- When it comes to abortion clinics, left and right swap usual positions on regulatory burdens [A. Barton Hinkle, Richmond Times-Dispatch] I’m quoted on courtroom battles over state anti-abortion enactments [Steve Weatherbe, National Catholic Register]
- Exhaustion of remedies: “Property Rights Are Not Second-Class Rights” [Ilya Shapiro, Cato at Liberty]
- Property ordinance in San Juan Capistrano bars Bible study groups and even regular bridge foursomes. Bill of Rights violation? [CBS-LA]
- For those in the D.C. area, a George Mason U. event Monday at 5: Roger Pilon (Cato) vs. Ed Whelan (Ethics and Public Policy Center) on judicial activism [Fed Soc]
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As Gideon Kanner points out, you don’t need to be a property rights advocate to see the California Environmental Quality Act as a lawsuit-intensive mess (quoting Prof. Robert Freilich):
Many attorneys, planners, architects, engineers, scientists, developers, small businesses, business associations and governments in the state, and many environmentalists are agreed that CEQA needs major reform. Delays in the system are causing projects to suffer delays of 2 to 9 years to get EIRs approved, especially for (but not limited to) the failure to compare the project with all “feasible” alternatives, establish vague baseline analysis for existing mitigation, and the tricky determination as to which parts of regional, general and specific plan EIR findings can be incorporated, to eliminate duplication of effort and cost. The law is so confused on these points that it is a miracle that any EIR can survive its first round in the courts without a remand to do it over again. Complicating this result is the establishment of a specialized group of attorneys that initiate litigation at the drop of a hat, primarily because the statute authorizes attorney’s fees for any remand or reversal. Many community associations and no growth environmentalists use the EIR litigation process to delay and in many cases kill projects for little or no environmental substance.
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A neat idea for reclaiming abandoned city land, but it labors under a “cloud of extralegality” arising from a century’s worth of zoning and other regulations [Kristin Choo, ABA Journal]
If you run a home office in Nashville, you mustn’t let clients visit, while in Montgomery County, Maryland, employees may not pick up paychecks at a home-based business [Radley Balko; Harvey Jacobs, WaPo]
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“D.C. Mayor Vincent D. Gray delivered an ultimatum in a face-to-face meeting with Wal-Mart officials at a real estate convention Monday: If the chain wants to enter the District at all, it had better commit to opening at Skyland Shopping Center, the long-delayed redevelopment project in Gray’s home ward…. Gray indicated he would be willing to go so far as to nix the company’s requests for building permits on privately owned sites, even for neighborhoods where residents favored Wal-Mart’s opening.” [Washington Post, earlier]
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A moratorium on new liquor licenses in Washington, D.C.’s popular Adams-Morgan neighborhood might account for why an existing license appears curiously valuable. [Matthew Yglesias]
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As readers will recall, Texas developer H. Walker Royall sued journalist Carla Main and her publisher, Encounter Books, over Bulldozed, a critique of eminent domain which includes commentary critical of Royall’s dealings. (Note: Encounter Books is also the publisher of my forthcoming book, Schools for Misrule.) The case is now before a Dallas judge, and getting more publicity. (Dallas Observer, including brief and response by the parties, and more; David Rittgers at Cato). The WSJ’s William McGurn interviewed Royall and quotes him as saying that he objects (inter alia) to being portrayed as someone who “wants to silence anyone who wants to talk about [the controversy].” Why might anyone have gotten that impression of him? Well, one reason might be that, in addition to filing a suit demanding that Carla Main’s book be pulled off the market, and another suit against a local paper and its book reviewer over a review of the book — that one was settled — Royall also sued famed law professor Richard Epstein, who’d given a blurb to the book. (A judge dismissed Epstein from the case.)
From the Dallas Observer’s reporting:
John Kramer, with the Institute for Justice, says defamation suits against people speaking out against eminent domain are increasingly common. “We’ve actually seen an unfortunate trend across the country, in Tennessee, Missouri, and Washington State,” he says, over speech, a newspaper ad and a “multi-story permanent sign that said, ‘End eminent domain abuse.’”
More from IJ here. And Morgan Smith at Texas Tribune discusses efforts in the Texas legislature to secure more protection for free speech against aggressive lawsuits.
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The court ruled a while back that an elderly Claysburg, Pa.-area couple, Donald R. and Janet Burket, are legally obliged to hook into the Greenfield Township water system. “They have done that and they are paying the standard monthly rate for township water, but the Burkets contend that while they are hooked into the system, they should not be required to actually use the water for daily living purposes.” Janet Burket says the chlorine bothers her, and the township has gone back to court in search of a court order compelling them to use public water “for all human consumption in the residence,” on pain of contempt fines. [Altoona Mirror, editorial; mediator assigned]
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As reader R.T. sums up this story from the Hanover (Pa.) Evening Sun: “Smell from BBQ smoker is an advertisement, and ’signs’ fall under sign ordinance….”
$150,000 in legal costs to defend challenges to a newly constructed stone wall is admittedly on the high side, but it points up a wider problem that besets the much-envied Connecticut community:
…the dispute opens a window into life in a wealthy suburb, where neighbors have enough money to fight for years over an issue that may have been quickly resolved in a less well-off town. In fact, Westport officials say such cases are not all that unusual.
“More than 50 percent of my day is dealing with these disputes,” said Gordon Joseloff, the first selectman. “In Westport, the people are very wealthy, and at the first indication of anything, they’ll threaten or file a lawsuit.”
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Brian Doherty at Reason on a rather powerful environmental regulator. More: Coyote.
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Because without some sort of barriers to entry, how are you supposed to make the really big bucks? [Antiplanner via Coyote]
Greenwich, Connecticut, has forbidden clotheslines — in an elderly-housing complex — as a purported safety hazard. Its director not very convincingly cited “liability issues – someone running around in the backyard in the dark”. [Christopher Fountain, For What It's Worth]
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