Real Estate & Property Law

Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole

By Robert Thomas (inversecondemnation.com)

Several items of interest:

• California Coastal Commission: "You must farm" - As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an "agricultural easement" on their 143-acre parcel.  In other words, as a condition of use, the Commission requires a family that has never farmed its land to use its land for farming.  More about the case from the Half Moon Bay Review here. The complaint is posted here.
  

  "What the Coastal Commission is asking us to do in return for a building permit is to put the remaining acreage into agriculture easement," Dan Sterling said. "But it doesn?t stop there. They want control of what and how we farm. And even then, they can come in here whenever they want." That?s Sterling?s biggest issue. He says he?d lose control over all but 10,000 square feet of his property but still be liable to keep it up to state standards. And as far as he?s aware, no one has ever farmed any portion of the property ? terrain marked by steep hills of trees and brush.

• WSJ op-ed: Riverboat Robbery - When does a tax become an illegal 'taking'? - The Opinion Journal's thoughts on the pending cert petition in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009), a case we discussed here. 
  

In a time of fiscal pressure, Illinois-type actions may be increasingly tempting for state and local governments to get money to prop up politically favored businesses. In the long run, it will only encourage corruption and deny business the kind of transparency they need to operate and expand. As with all takings, for railroads or schools or highways, if the state believes that the increased purses of the Illinois racetrack are in the public interest, the state must be willing to pay for it.

• Closing a big loophole in RLUIPA - RLUIPA and Eminent Domain: How a Plain Reading of a Flawed Statute Creates an Absurd Result.  Eminent domain is not a "land use regulation" under RLUIPA, most courts hold, including Hawaii's. See City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006). Thus, while a local government's zoning may be scrutinized under RLUIPA, the actual taking of property is immune from review. 

  This article addresses the Religious Land Use and Institutionalized Persons Act of 2000. It argues that while the courts hearing RLUIPA cases have correctly held that eminent domain is not land use regulation under RLUIPA, Congress intended eminent domain to be covered under RLUIPA, sound public policy holds that sacred property ought to be afforded special protection from burdensome government action, and Congress must cover eminent domain under RLUIPA in order to adequately protect religious liberty in the land use context.

Full post as published by inversecondemnation on April 07, 2009 (boomark / email).