edited by John Carlisle
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Table of Contents
Charter School Target of Local Zoning Regulators
Janece Kuchina had been operating the Kuchina Country Day School in Paradise Valley, Arizona since 1983, initially as a private school and then, after 1996, as a charter school. A charter school is a public school that is given significant autonomy in setting its curricula. Unfortunately, charter schools in Arizona have frequently been the targets of zoning regulations that seem designed to force these innovative schools out of business. Janece Kuchina found this out first hand when she was forced to step down in 1999 after being charged with criminal misdemeanor violations of the local zoning ordinances.
Her alleged transgressions, however, were modest to say the least. One of Kuchina's violations was giving swimming lessons to students in her home pool which adjoins but is not part of school property. Another violation was that she stored school material on her personal property. This seemingly innocuous act led the town to get a search warrant of Kuchina's residence. The warrant authorized a search to uncover objects "used ... for committing a public offense" including school furniture, chalkboards, games or toys "that may be used to entertain or teach children in a school setting."
Opponents of the school claim that the Kuchina school provides poor teaching as indicated by "abysmal test scores." However, the Kuchina school's standardized test scores are virtually identical to those of the Paradise Valley Unified School District where her school is located.
While Kuchina works to resolve her legal problems, her son Chris has taken over the temporary management of the school.
Source: Goldwater Institute
City Tries to Bring Big Brother to Home Schooling
After moving to Lynn, Massachusetts in 1993, Michael and Virginia Brunnelle decided not to enroll their five children in the public schools, opting to educate them at home instead. The Brunnelles' credentials for home schooling are impeccable. Mrs. Brunnelle is a certified elementary school teacher while Mr. Brunnelle has a Master's degree in Christian education. Although Lynn public school officials approved the Brunnelles' qualifications as teachers and the contents of the curricula and the instructional materials, they still would not allow the Brunnelles to home school their children unless they allowed school officials to conduct periodic inspections of their home "to verify that the Home Instruction Plan is being implemented."
The Brunnelles strongly objected to the school system's claim that it had the right to intrude on their familial privacy. They filed a suit against the Lynn Public Schools charging that the home inspection regulation violated state constitutional guarantees against unreasonable searches. The Superintendent of the Lynn Public Schools argued that the home visit regulation was essential to make sure that the parents were providing necessary instructional space, the proper instructional materials and were following a set schedule.
In 1995, the Massachusetts Supreme Judicial Court overturned the home visit regulation as an improper attempt to apply the institutional standards governing public schools to the non-institutional environment of a family home. The court, for instance, said the need for a formal schedule was unnecessary because the intimate relationship between the parent and child permits closer monitoring than would be possible in a public school classroom. On the school system's need to insure the availability of instructional space, the court stated: "We doubt that parents like the plaintiffs, who are so committed to home education that they are willing to forgo the public schools, and devote substantial time and energy to teaching their children, will let the children's progress suffer for lack of adequate instructional space." Finally, the court held that the home visit requirement was improper because it raised issues of unwarranted government intrusion on familial privacy.
Source: Home School Legal Defense Association
Farmer Fined for Shooting Non-Native Wolf That Threatened Livestock
North Carolina farmer Richard Mann thought he was shooting a large dog that was threatening his cattle. But when he came back the next day to bury the animal, he was confronted by federal wildlife officials who charged him with killing a red wolf - a federally-protected species. Mann was fined $2,000 and required to perform community service by building "wolf houses" and feeding the wolves. Afterwards, he filed suit against the U.S. Fish and Wildlife Service (FWS) claiming that the federal government had no constitutional authority to prevent residents from protecting themselves and their property.
The red wolf, which is not even native to the state, was introduced by the FWS to the area in 1984 as part of an experiment to see how well the animals adapt to the environment. There is considerable scientific debate about whether the red wolf is a distinct "species" that merits special protection. In fact, many wildlife experts believe that it is a cross between a gray wolf and a coyote. Whatever the red wolf is, federal officials assured farmers that the wolves would stay in the boundaries of the wildlife refuge and if by some chance the wolves would wander, the government would retrieve them. But just in case, the North Carolina legislature passed a law specifically allowing residents to kill the red wolves if they believed the animals posed a threat to their lives or livestock. Mann claims the state law allowed him to shoot the animal.
Federal lawyers argue that FWS regulations protecting red wolves take precedence over the state's legislation protecting landowners. The Fourth U.S. Circuit Court of Appeals is considering whether the federal government has the constitutional right to override state and local laws protecting property owners.
Source: Pacific Legal Foundation
Fish and Wildlife Service and CNN Conspire to Deny Elderly Couple Their Rights
In 1993, ten vehicles of U.S. Fish and Wildlife Service Agents (FWS) with a CNN camera crew in tow raided the ranch of Paul and Erma Berger, an elderly Montana couple the government claimed had killed federally-protected eagles. Paul Berger, who is 71 and suffers from high blood pressure, was coerced to allow the lead agent to enter and search his home - not knowing that the search warrant did not include the house or that the agent was wearing a hidden CNN microphone.
Informants told the government that the Bergers were using pesticides to poison endangered species, including eagles, that were threatening the couple's livestock. No evidence was found that the Bergers were harming the wildlife. But federal agents, eager to show something to the CNN cameras, accused them of violating federal laws protecting eagles. During the humiliating ordeal, the Bergers were threatened with imprisonment while agents did on-camera interviews attacking the couple's integrity.
A jury acquitted the Bergers of all charges except for improperly using a pesticide - a misdemeanor.
The Bergers sued the federal government for violating their Fourth Amendment guarantees against unreasonable search and seizure. They argued that it was unconstitutional for federal agents to have allowed the CNN camera crew to enter their homes during the raid and film the event.
In May 1999, the U.S. Supreme Court ruled for the Bergers. The court held that the Fourth Amendment does not allow the police to bring along the press or any other third party that is not part of the law enforcement mission.
Source: Pacific Legal Foundation
Regulations Deny Elderly Handicapped Woman Access to Home
John Taylor, an 80-year-old resident of Mount Vernon, Virginia, can not build a small modular home on his lot to accommodate his wheelchair-bound wife because the U.S. Fish and Wildlife Service (FWS) says it harms a bald eagle nest located 90 feet away.
The FWS says it would allow Taylor to construct the home but only if he agrees to several onerous conditions: 1) Contribute money to a salmon restoration plan because eagles like to eat salmon; 2) Build two eagle platforms; 3) Contribute money to a bald eagle exhibit. In addition, Taylor would not be permitted to mow his lawn or allow children to play on his lot between the months of November and July.
"There are a dozen houses around that nest," said Taylor. "I don't know why my government singled me out - especially since I have done everything I can to protect that nest."
The FWS's demands are also questionable since the agency recently announced that the bald eagle is no longer endangered.
In March 1999, Taylor filed a lawsuit against the agency seeking just compensation for the loss of his property under the U.S. Constitution's Fifth Amendment.
Source: Defenders of Property Rights
Government Bureaucrats May Put Small Town Out of Business to Protect Rare Bird
The East End of Long Island, New York is a popular vacation spot but it is also a popular breeding area for a bird called the Atlantic Coast piping plover - a "tourist" that many Long Islanders wish would go away.
The plover has been listed as an endangered species by the U.S. Fish and Wildlife Service (FWS) since 1986. Every year between late March and early September, plovers migrate to Long Island to breed. This happens to coincide with the busy tourist season. To accommodate the bird, local officials are forced to adhere to an onerous and expensive set of regulations.
Gary Veglianti, the mayor of West Hampton Dunes, says that in one case a plover had made a nest 10 feet from a road and the FWS recommended that the road be closed to everyone except essential people. "What do I do," asked Veglianti, "get some Nazi traffic cop to stand there and decide who's essential and who isn't?" What's worse is that the plovers' migration occurs during peak beach season and the road is the only way in or out of the village. There's no way the road could be shut down.
"Some of these recommendations are too much," observed Veglianti. But the FWS has told Veglianti that if he doesn't follow their recommendations they might put him in jail for violating the Endangered Species Act.
West Hampton Dunes has had to spend $7 million over three years for plover protection, not including the lost revenue due to building restrictions.
Source: Insight Magazine
Playing Cupid for Love-Starved Turtles
Efforts to ease traffic congestion in the growing community of Hampstead, Maryland have been thwarted by federal regulations protecting the endangered bog turtle.
Hampstead officials desperately want to build a five-mile bypass road to ease traffic congestion on its main street. During the weekday mornings and evenings, the street is jammed with commuters and without a bypass, according to one businessman, the traffic will be "backed up two miles below Hampstead."
Helen Utz, director of the Carroll County Chamber of Commerce, says it is critical that the bypass get built so prospective businesses will not be deterred by the traffic from locating in the county's industrial park.
But researchers have discovered 18 bog turtles in a wetland that lies in the path of the proposed bypass. The four-inch turtle was listed as a threatened species by the U.S. Fish and Wildlife Service (FWS) in 1997. The bypass project is now on hold because Dr. James Howard, a university biologist who has studied the turtles at the request of the state of Maryland, has recommended that engineers build a bridge across a small stream instead of filling it so that turtles could use the stream to travel from one bog to another. Howard also wants to extend his investigation for at least one more year to determine if there are other turtles dwelling in wetlands along the proposed bypass route.
If there are other turtles, they too may be given special protection. Howard says the turtles need protected "corridors" so that they can breed with turtles from other bogs. If the turtles can't mate with other populations, he argues, they will become in-bred.
Frustrated at having to delay the much-needed bypass so a biologist can play cupid for a bunch of turtles, local officials are understandably exasperated.
Says Julia Gouge, president of the Board of County Commissioners, "It's becoming one of the most ridiculous situations we have seen."
Source: Washington Times
Mine Owner Found Guilty of Harming Rattlesnakes with Four-Foot Fence
Since 1990, Jay Montfort of Fishkill, New York has been trying to expand a gravel mine on his own land. But the New York Department of Environmental Conservation (DEC) has been finding one excuse after another not to give Montfort the permission he needs to expand. Montfort believes "the motivation for such abusive tactics appears to be the desire of the state" and a local conservation group, Scenic Hudson, to acquire his property for a land trust.
For four years, the rationale was that Montfort's mine would threaten a den of rattlesnakes that dwell near the property. Rattlesnakes are protected under New York's endangered species law. DEC officials claim that a four-foot, wire-mesh fence Montfort built around his property to protect his employees was illegal because it reduced the snake's habitat by about 20% and would inflict "physiological stress" on the snakes. In early 1999, a New York state judge ruled that Montfort's fence did pose a threat to the snakes. Montfort will do as he has been doing for nine years now and appeal yet another unfavorable decision.
Source: Property Rights Foundation
Two Elderly Women Robbed of Retirement Money by Salmon Protection Regulations
For seven years, Viola Allen, an ailing 72-year-old widow, has been desperately trying to sell her 8-acre property in Lynnwood, Washington so she can finally have enough money to move out of her rapidly deteriorating home.
But local environmental activists are stopping Viola from selling the land she has owned for 44 years because they claim that a tiny stream in a ditch going through the property is vital for Puget Sound chinook salmon, a federally-protected species. The problem is: There has never been salmon in the "stream."
This controversy began in 1992 when Viola and her neighbor, 82-year-old Delila Gribble, agreed to sell their combined 18-acre property to Diana Clay, a Lynnwood housing developer, who planned to build a 51-house subdivision on the parcel. It took over two years just to resolve an annexation dispute between the City of Lynnwood and the county before approval was finally given for the annexation in 1996.
That's when a local environmental group, Citizens for a Natural Habitat (CNH), stepped in to stop the project. CNH activists claim that the tiny stream called Tunnel Creek that runs through Viola's and Delila's properties is vital to the survival of endangered salmon. This is hard to believe given that Tunnel Creek is a ditch that is completely dry in the summer and has but a tiny trickle of water in the winter. Several studies have determined that Tunnel Creek is not capable of supporting salmon. CNH activists offer no credible research to justify their claim. The Washington Department of Fisheries, for instance, issued a formal opinion that Tunnel Creek is not and could never be a salmon-bearing stream.
Yet CNH ignores these findings. After the City Council approved the development, CNH filed a lawsuit in county court on April 19, 1999 to block the project, insisting that the stream is important for salmon preservation - but again offering no proof.
While other developments have been planned and built in the area during the dispute, the ladies have been stuck paying a soaring tax bill. Although they get monthly payments from Clay that partially compensate them for the property, it is not enough. Delila says "If this doesn't get settled, I'm going to be in the poorhouse." Viola says the tax bill on her property, valued at $591,000, is $2,900.
Things are especially dire for Viola. She suffers from emphysema and must stay on oxygen all day but her house is in such poor condition that every time it rains - which happens quite a bit in the Pacific Northwest - her basement floods. The resulting mildew makes her medical condition even worse.
Source: Diana Clay
75-Year-Old Woman's Plan for Quiet Retirement Dashed by Endangered Species Act
For nearly ten years, Lani Odenthal and her husband Bob worked hard to develop their 80-acre golf course in Okanogan County, Washington into a beautiful, prosperous resort. After Bob passed away in 1998, 75-year-old Lani had no desire to run the Sunny Meadows resort anymore and decided to sell it and live the rest of her life in quiet retirement.
In the spring of 1999, that plan was shattered when the National Marine Fisheries Service (NMFS) ordered the local irrigation company, Skyline Ditch, which served Sunny Meadows and its neighbors, to stop releasing water. Lani's once-lushly-green oasis is now virtually useless as it is now marred by dying brown grass, receding ponds and weedy flower beds.
Citing new Endangered Species Act regulations adopted in early 1999, NMFS alleges that the irrigation provided by Pacific Northwest water companies, such as Skyline Ditch, harm salmon because it diverts water from streams and rivers vital to salmon survival. NMFS adopted these strict regulations despite serious scientific concerns over whether such regulation of the salmon's freshwater habitat will significantly improve their survivability rates. What is certain, however, is that the denial of vitally-needed water to farmers and other small businesses, such as Lani's golf resort, is having catastrophic consequences.
Soon after Lani decided to sell Sunny Meadows in November 1998, a woman living in the area who frequented Sunny Meadows offered her $1.3 million for the resort - certainly enough for a comfortable retirement. But after the irrigation company cut off the water supply on NMFS's orders, the prospective buyer informed Lani that she couldn't invest when water rights were in doubt.
Stuck with a property she couldn't sell, Lani had to shut down Sunny Meadows as she can no longer offer the golfing, fishing and hiking that once made the resort so popular. To make ends meet, she sold her motor home and other personal belongings. Still, Lani doesn't know if she can pay the rent for her apartment.
Lani says that although her late husband was the kind of man who could find the bright spot in any situation, "I'm just glad he isn't alive to see it today."
Source: K.C. Mehaffey, Okanogan County Farm Bureau
Florida Man Stuck With Useless Property Because of Federally-Protected Bird
South Florida contractor William Jesberger thought he was taking advantage of a great business opportunity when he purchased two residential lots for $20,000 in order to custom build houses. But in 1992, the U.S. Fish and Wildlife Service (FWS) refused his application for a building permit because his land was considered vital habitat for the Florida scrub-jay bird which is legally protected as a threatened species by the FWS and the Florida Game and Freshwater Fish Commission. "You can't build on scrub-jay property and the county is assessing property value lower every year because of that," says Jesberger.
Jesberger's ultimate dream has turned into a nightmare. He cannot sell his property because it is deemed a "white elephant." As one realtor aptly stated, "I do not know of any builder that would even want a lot like this as a gift." The lots are completely worthless and Jesberger has been warned to not touch anything on his property or he will be arrested and fined.
Overall, there are 480 lots involved. Jesberger wants to file a class action lawsuit to seek just compensation because "it would be too costly as an individual to go in and sue." Unfortunately, no one else wants to join him; he is the only one that dutifully attends all the meetings on the scrub-jay. Jesberger's case to this day remains at a standstill - he cannot build on his property or sell it as long as the FWS deems it scrub-jay habitat.
Source: William Jesberger
New Jersey Man Loses Land So Owl Might Keep Options Open
For 17 years, Jeffrey Dautel has been paying taxes on a lot he owns in a picturesque lakeside neighborhood in Sparta, New Jersey. The lot is 1.27 acres in size, and Dautel wanted to build his own house on a small part of the land. Because the lot is near a lake, he needed a wetlands permit to build there. However, a small part of his land that fell under the wetlands designation was deemed wetlands of an "exceptional resource value" by the New Jersey Department of Environmental Protection (DEP). This is because Dautel's property is allegedly vital to the northern barred owl, an endangered species in New Jersey. It's debatable that the barred owl should even be considered an endangered species given that there are a lot of them. Indeed, there are so many in the Pacific Northwest that they are becoming a menace to the spotted owl, a federally-protected species.
In reality, there are no barred owls living on Dautel's property. Even the DEP concedes that. Nevertheless, the DEP reasons that Dautel cannot build his house because some day the barred owl might stop in for a quick snack. Although Dautel cannot build a house on his lot, the town still expects him to pay taxes. Dautel's situation could be remedied with a strong dose of the Fifth Amendment, which prohibits the government from taking a person's property without just compensation. But Dautel does not want to sue because he is fearful of angering the bureaucrats who will decide the outcome of his case. He is still working with the DEP in hopes of reversing their earlier decision.
Source: Jeffrey Dautel
Legal North Carolina Business Ruined After Fish and Wildlife Service Raid
When North Carolina businessman Earl Peck opened his exotic foods distribution business in 1993, little did he know that what began as a promising entrepreneurial venture would turn into a regulatory nightmare that has yet to end.
Peck prided himself on filling a wide variety of orders from restaurants all over the country as well as from individuals seeking exotic meats. He sold alligator, rattlesnake, emu, lion and even camel meat. Everything was perfectly legal. He registered his business, called International Home Cooking, with the North Carolina Secretary of State's Office, which told him all he needed was an inspection by the county health department, which he dutifully obtained. All the meat he sold he purchased from established suppliers that submitted to inspections either by the United States Department of Agriculture (USDA) or the state. He advertised his business openly in newspapers and even sent a flier to the White House chef. His business was a great success with sales reaching $100,000 by 1995.
Then in November 1995, Peck sold some black bear meat to a man claiming to be a contractor. But after Peck accepted payment from the man, cars swarmed into the parking lot and a half-dozen men jumped out. Peck was surrounded, thrown against a car and frisked. He thought he was being robbed. As it turns out, the men - including his alleged customer - were United States Fish and Wildlife Service (FWS) agents who were investigating him for allegedly selling bear meat illegally. They drove to Peck's home and spent four hours ransacking his house, seizing business files and downloading files from his computer. He was told that his offense carried a penalty of $20,000 and/or five years in prison.
Peck doesn't understand how he could have broken any law since he purchased the black bear meat from a legitimate South Dakota supplier that was USDA-inspected. Neither is the state of North Carolina certain that he broke a law. The North Carolina Wildlife Commission points to a state law that forbids the sale of bear and deer meat - although that law was ostensibly aimed to stop poaching of bear and deer native to the state. On the other hand, the North Carolina Department of Agriculture, which inspects meat, found that there was nothing illegal in Peck's business.
In May 1996, the U.S. Attorney's office sent Peck a letter informing him that he wouldn't be prosecuted due to "insufficient federal interest." But that was not enough to save Peck's business. He was forced to shut down after the 1995 raid because he still could not get a definitive answer from state officials over what he can sell.
Source: Earl Peck
Couple Loses Timber So Government Can Play Cupid
The state of Oregon's Board of Forestry has forced Alvin and Marsha Seiber to set aside 37 acres of commercially-harvestable forestland to protect the northern spotted owl. The state is not offering any compensation. The Seibers have been prevented from harvesting for more than a year now.
The Seibers filed suit against the state alleging that their property rights had been violated. In defending its actions, the state argued that the Seibers had to accept the restrictions on the use of their property because they made the decision to harvest timber and are thus obligated to accept any restrictions the state may choose to impose on private timber operations. The state also argued that since the state may one day decide to lift the restrictions on timber harvesting, the Seibers can not claim that they suffered a permanent taking of their property that would justify compensation. Additionally, the state argued that since the Seibers could still use the other 163 acres of their 200-acre plot, they didn't deserve compensation for the regulatory taking of nearly 20 percent of their land.
But it seems the state and environmentalists involved in the case weren't just satisfied with making the argument that government has the right to compel private property owners to protect wildlife at the owners' expense. Oregon officials and the Audubon Society argued in their legal brief that the Seibers should be prevented from harvesting timber because they do "not have the right to prevent the reproduction of a species that is in danger of extinction."
The Seibers' lawyers argued in court that the state of Oregon's claim that the Seibers and other private landowners have an affirmative duty to set aside their property for wildlife preservation whenever the government says they should without compensation blatantly violates the U.S. Constitution's Fifth Amendment protection of private property.
The lawyers observed that a perverse consequence of the state's dangerously broad interpretation of its power to protect wildlife would be to encourage property owners to destroy forests that could conceivably serve as habitat for the northern spotted owl.
Source: Pacific Legal Foundation
Audubon Society Says Private Landowners Must Bear Cost of Conserving Wildlife
In 1993, the Oregon Board of Forestry forced the Boise Cascade Corporation to set aside 56 acres of commercially-harvestable timberland as a preserve for the northern spotted owl without paying compensation.
Boise Cascade filed suit seeking compensation for this effective loss of their property between 1993 and 1997. An Oregon trial court and jury ruled in favor of Boise Cascade and awarded the company compensation for the regulatory taking of its property. The state of Oregon appealed the decision.
The state argued that it couldn't be required to pay compensation to private landowners because it is not responsible for the spotted owl's movements. Since the "spotted owl is a wild animal" and "moves according to its [own] will," it is not an agent of the state of Oregon so the State of Oregon cannot be held liable if the federally-protected owl, with all of its accompanying Endangered Species Act regulations, takes up residence on someone's land.
Property rights lawyers handling the case argued that having forced Boise Cascade to allow the owls to live on its property, the state can not escape liability for a loss in property value because it does not control the owl's movements.
The state and the Audubon Society also asserted the sweeping notion that private landowners have a duty to protect the habitat of any wildlife the state deems worthy of protection. As justification for making this legally-suspect argument, the Audubon Society offered as examples existing laws protecting wildlife such as prohibitions on canning salmon, trapping beaver or killing deer. However, the analogy was flawed because while those laws prevent property owners from killing or capturing wildlife, property owners still have the right to prevent wildlife, such as beaver, from entering their property and damaging it. Boise Cascade Corporation merely sought to exclude the owls from its property. It never sought to kill the birds.
In 1998, the Oregon Court of Appeals ruled for Boise Cascade, holding that the state had denied Boise Cascade "the only economically viable use of approximately 56 acres of merchantable timber."
Source: Pacific Legal Foundation
Campaign to Stop Illegal Immigration Hampered by Endangered Species Act
The U.S. Border Patrol's aggressive efforts to stem illegal immigration and cut crime along the Texas-Mexican border have been a resounding success. In the last two years, Operation Rio Grande, the agency's high-tech interdiction effort, has cut the number of illegal aliens attempting to cross the border from 216,000 in 1996 to less than 160,000 in 1999 along a 200-mile stretch of the Rio Grande River. If it weren't for the operation, Border Patrol officials estimate that there would have been 350,000 illegal aliens attempting to cross the border in 1999. In addition, in just one year, crime in Brownsville dropped 45 percent.
However, if environmentalists have their way, all of these gains will be negated.
The Sierra Club, Defenders of Wildlife and the Audubon Society plan to file a lawsuit to put a halt to the Border Patrol's use of critical interdiction technology the groups claim pose a threat to endangered species. These groups argue that the agency's use of high-powered lights, which prevent border crossings under the cover of night, also disrupts the habits of the ocelot and jaguarundi, two nocturnal-oriented wildcats on the endangered species list.
"We feel the Immigration and Naturalization Service can accomplish its job without the floodlight and fences and with far less intrusive technologies that have no impact on wildlife," says Jim Chapman of the Sierra Club.
Not so, says the Border Patrol. Border Patrol assistant chief Rey Garza says that, "Taking away the lights will negate everything." The Rio Grande River is pitch black, making it an obvious haven for illegal aliens and drug criminals. Garza says that Border Patrol officers have been stabbed and shot trying to do their job on its murky banks. By installing permanent and mobile light fixtures along targeted sections of the river, the Border Patrol's ability to catch criminals and illegal aliens has increased dramatically. Says officer Garza, "the lights have proven to be a powerful deterrent."
The environmentalists' planned lawsuit especially frustrates Border Patrol officials. They had already agreed to not place their high-tech equipment in U.S. Fish and Wildlife sanctuaries in an attempt to address environmental concerns - even though those sanctuaries have become refuges for illegal aliens.
Source: U.S. Border Patrol
Florida Woman Forced to Pay $100,000 for Futile Effort to Save Protected Bird
In 1992, Anita Cragg, president of Space Coast Management Services, bought a housing subdivision in Country Cove, Florida with the goal of building new homes next to existing ones. She had the necessary building permits and interested buyers all lined up when the U.S. Fish and Wildlife Service (FWS) ordered her to stop all development because it allegedly posed a hazard to the Florida scrub-jay, a bird which is listed as threatened under the Endangered Species Act.
What Cragg didn't understand is how her planned development threatened the scrub-jay when there were no scrub-jay nests on the property. Both the FWS and an independent environmental engineer hired by Cragg could not find any nests on her land. However, when FWS officials were surveying her land in 1993, they saw two scrub-jays fly onto her lots. Because Cragg's property had the potential to be suitable scrub-jay habitat, the agency suspended construction for 18 months.
To get construction resumed, the FWS forced Cragg to purchase four acres of land off-site to compensate for the loss of every acre of potential habitat on her property. That cost her $100,000. Cragg says her deal with the government "didn't really help the scrub-jay because we weren't hurting it in the first place."
Source: Anita Cragg
California Winemaker Penalized For Creating Wetlands
When Sam and Vicki Sebastiani decided to turn part of their 175-acre winery into wetlands, they had no idea that this good environmental deed would draw the ire of regulators.
The Sebastianis are third generation heirs to one of California's most noted wine families, Sebastiani Vineyards. Besides being a winegrower, Sam Sebastiani is also a dedicated conservationist, as was his father. Recognizing the importance of wetlands, Sebastiani decided to turn a 90-acre portion of his winery into wetlands. He enlisted the support of Ducks Unlimited and the California Department of Fish and Game and, at considerable expense, constructed wetlands on what had been seasonally-flooded lowlands too wet for vineyards. Since the wetlands were completed in 1993, more than 156 species of birds have been recorded on the site. On a single day, over 10,000 waterfowl were counted in the Sebastianis' wetlands. In addition, it has become a significant wintering site for some species of duck.
The project should have cost only $50,000 and taken 60 days to complete. But the onerous mandates of federal, state and local regulators inflated the cost to $181,000 and stretched the construction time to eight months. A total of eight regulatory entities got involved in the approval process: the Sonoma County Board of Supervisors; Sonoma County Planning Department, Permits and Resource Management; Sonoma County Reclamation District; California Department of Fish and Game; U.S. Army Corps of Engineers; U.S. Environmental Protection Agency; U.S. Fish and Wildlife Service and the U.S. Department of Justice.
The Army Corps of Engineers was especially difficult. Rather than viewing the Sebastianis' efforts as a laudable example of wetlands restoration, the Corps of Engineers viewed it as wetlands destruction. The Corps of Engineers claimed that the construction of a 1,500-foot levee, necessary for the creation of the wetlands as well as to protect a neighbor's farm from flooding, destroyed existing wetlands. So in addition to constructing a 90-acre wetlands, the Sebastianis had to build another 4-acre wetlands on another section of their property.
An official with the California Department of Fish and Game observed that the "exuberance" of federal regulators in enforcing the letter of the law "is going to be counterproductive and discourage stewardship. We should be working with landowners and not against them."
Source: R.J. Smith, Competitive Enterprise Institute
Army Corps of Engineers Claims Right to Regulate Agriculture
The Borden Ranch Partnership owns a 3,250-acre ranch in Sacramento County, California. For five or six years, the Borden Ranch Partnership has planted much of the property in vineyards and orchards. But that may all come to an end because the U.S. Army Corps of Engineers says that the company must first get its permission to plow on much of the land due to federal wetland protections.
Portions of the Borden Ranch have small, isolated vernal pools and drainage swales. A vernal pool is a temporary wetland that is created when rainwater fills a depression in the ground. Since the pools are dry most of the year, the land has periodically been cultivated. Likewise, the drainage swales only contain water for a short amount of time during and after storms. Even though the land the Borden Ranch is located on has been used for farming for at least a century, the Corps of Engineers now demands that its owners apply for special permission each time it wants to plow the land. The Corps of Engineers is insisting on this even though Borden Ranch set aside 1,000 acres of land for open space to protect many of the wetlands in question.
Under Section 404 of the federal Clean Water Act, the Corps of Engineers issues permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The Corps of Engineers interprets this to mean that the routine plowing required to plant the vineyards "pollutes" the temporary wetlands with dirt. Even though the Clean Water Act has amendments that specifically exempt farming activities from such intrusive regulation, the Corps of Engineers is now arguing that it has the right to regulate the most basic farming activities, ostensibly to protect wetlands. The Borden Ranch Partnership went to court to fight this regulatory power grab. But a federal trial court ruled that the Corps of Engineers does have jurisdiction over the company's agricultural activities. The company is now appealing the decision.
Source: Pacific Legal Foundation
Michigan Couple Lose $120,000 Worth of Property Due to Wetlands Classification
Since 1963, Russell and Lois Volkema have owned a 24.6-acre parcel of commercial property in Kentwood, Michigan. During this time, the Volkemas have invested heavily in constructing roads, parking facilities, utilities, sewers and a retention pond on the property. By 1991, the property was worth nearly $500,000, or $20,000 per acre.
That year, the Volkemas planned to build a water park on the site that would operate with another park on a contiguous 10-acre site. Because the Michigan Department of Natural Resources (DNR) classified a 4.3-acre section of the land as a wetland, they had to apply for a permit to fill in the wetland, which the DNR promptly denied. As a result, a total of 5.7 acres immediately around the wetland could not be developed. The Volkemas lost more than 20 percent of their property with a value of about $120,000 but the DNR refused to compensate them.
The Volkemas went to court demanding they be justly compensated for the loss of their property. Although a trial court agreed that the DNR's wetland classification made one-fourth of the land unusable, the court ruled that the Volkemas were not due any money because they could still use the other 18 acres. In 1993, the Michigan Court of Appeals issued a ruling in which the court agreed that the Volkemas had been "deprived of all the economically beneficial use of their land." Nevertheless, the court of appeals still ruled that a regulatory taking had not occurred. The Michigan Supreme Court rejected their claim in 1998.
Throughout the case, the state argued that the DNR's permit denial is similar to limitations placed on property by routine zoning ordinances which do not rise to the level of regulatory takings. The Volkemas argued that such restrictions on property use are only justified by health and safety concerns attendant to the use of the property.
Source: Pacific Legal Foundation
$5.3 Million Lost to Wetlands Designation
In 1986, K & K Construction Company purchased a 55-acre parcel of land in Michigan. In 1988, the company decided to construct a restaurant and sports complex on 42 acres of the site. But the Michigan Department of Natural Resources (DNR) refused the company's building application because it claimed that wetlands took up 27 acres of the property. The company then filed a lawsuit challenging the DNR's classification of the site as wetlands.
During litigation, K & K Construction resubmitted a new building application that attempted to accommodate the DNR's concerns with a scaled-back development plan. The plan would have left all but 3.2 acres of the wetlands intact. The company proposed making up for the lost wetlands by converting 5.4 acres of the non-wetlands portion of the property into wetlands. In addition, K & K Construction proposed setting aside another 28 acres of existing and man-made wetlands on adjoining property parcels owned by the company.
By the time the case came to trial, the issue to be decided by the court was whether the state's wetlands classification constituted a regulatory taking. In November 1992, a trial court ruled that the DNR had deprived K & K Construction of "any reasonable return" on its economic investment by effectively condemning the property through its wetlands classification. The DNR agreed to the company's alternative development plan. Litigation continued, however, after another trial court ruled that the state owed K & K Construction more than $5.3 million for the 27 acres that was permanently taken as well as the 28 acres temporarily taken as a result of the DNR's decision.
In June 1996, the Court of Appeals for Michigan ruled for K & K Construction. The state then appealed to the Michigan Supreme Court which ruled against the company. In the March 1998 decision, the court argued that even though the property value of its 55-acre parcel had been lowered by the DNR, the company did not deserve compensation because it owned other parcels near that site which "might" negate the impact.
Source: Pacific Legal Foundation
Local Government Takes 96% of Couple's Land
In 1979, Arnold and Marilyn Hansen purchased a four-acre parcel of property near Snohomish, Washington for $55,000 to develop the property for commercial use. The plan seemed a good one for, by 1986, the value of the land for commercial development had increased to $280,000. But thanks to local wetlands regulations, the Hansens' property is now virtually worthless.
When the Hansens purchased the property they obtained a permit to grade and fill a lowland area on the site. They did not immediately fill the lowland, however, because proposed highway construction next to the land would provide the extra fill dirt. That decision to wait to fill the lowland proved significant. Over the years, that low area received run-off from development on surrounding properties. In 1987, Snohomish County determined that the vast majority of the Hansens' property should permanently serve as a water retention basin for the run-off from developed properties. Of the 170,000 square feet the Hansens owned, the county said they could only develop 7,200 square feet - a mere four percent of their land.
The Hansens could only build one single-family home on a small upland area of the property. But this was not a viable option as the parcel fronted a major road with a 50-mile-per-hour speed limit and was located next to several commercial businesses such as a diesel truck repair facility and farm implement dealer - hardly an attractive location for a home.
In 1987, the Hansens filed a lawsuit seeking compensation from the county in Washington Superior Court. The Hansens provided undisputed expert testimony that the cost of building the house would exceed the amount it could be sold for, rebutting the county's claim that their property was still economically viable. Nevertheless, after years of legal wrangling, the judge ruled for the county in 1997 claiming that simply allowing a house was sufficient to avoid a regulatory taking claim.
The Hansens have appealed the decision to a state court of appeals.
Source: Pacific Legal Foundation
Couple Persecuted by Florida Regulators for Challenging Denial of Building Permit
Mel and Pam McGinnis wanted to build a home on a 5.5-acre waterfront lot they had purchased in Terra Ceia, Florida. But the Florida Department of Environmental Protection (DEP) denied the McGinnises' application, citing the presence of wetlands on the property. The McGinnises claimed that the wetlands were the result of old, man-made mosquito control ditches which are supposed to be exempt from wetlands permitting.
In May 1996, the McGinnises requested that the state appoint an official to mediate the dispute. The mediator issued a ruling favorable to the McGinnises in which he criticized the DEP for not acting reasonably and in good faith. The DEP then entered into settlement negotiations with the couple which resulted in an agreement to grant them a modified building permit.
But before the agreement was finalized, an environmental group filed a lawsuit to declare the mediation proceedings null and void because they were not open to the public. Citing the lawsuit, the DEP reneged on the agreement with the McGinnises in March 1997. The McGinnises then requested an administrative hearing to contest the permit denial. The McGinnises also bought an alternative site near the town of Parrish to build their house.
Then on April 4, four DEP agents and two Marine Patrol officers invaded their Parrish property charging the couple with yet another wetlands violation. Shocked and exasperated, the McGinnises reported the incident to the Governor's office as a case of retaliatory harassment by the DEP. The state inspector general began an investigation and issued a report in October critical of the DEP's actions. The DEP dropped its prosecution of the McGinnises for the alleged wetlands violations on the Parrish property. They were eventually granted a permit to build a house on that land.
As for their other property in Terra Ceia, an administrative law judge issued a ruling in April 1998 upholding the DEP's denial of a building permit.
Source: Florida Legal Foundation
State Takes Senior Citizens' Land For Public Use
John Bronczyk and his sister Josephine own a 160-acre farm in Anoka County, Minnesota which they have been farming for more than 70 years. The elderly siblings no longer engage in dairy farming but grow rye and hay and tend a vegetable garden. Their plans to enjoy a quiet retirement, however, were dashed by the Minnesota Department of Natural Resources (DNR). In 1990, the state declared three-quarters of their farm a "public waters wetland," which deprived the Bronczyks of the right to keep people off their land. By regulatory fiat, the Bronczyks were transformed from property owners into mere custodians of public land.
The Bronczyks' problems started in 1984 when the state determined that Columbus Lake, which comprises nine acres of the Bronczyks' property, was wetlands. What was most disconcerting to the Bronczyks was that the state ruled that an indeterminate amount of solid land surrounding the marsh was also protected wetlands. The Bronczyks were never told just how much of their property adjacent to the nine-acre marsh was protected wetlands. In 1990, the state finally ruled that 104 acres of their 160-acre farm were "public waters wetland." According to state law, a wetland that abuts a large lake is public water. Private landowners are prohibited from excluding people from public water wetlands if people can reach the wetlands from a public road. Because a public road bordered one side of the Bronczyks' property, anybody could walk all over the three-quarters of the Bronczyk farm classified as wetlands.
Understandably, the Bronczyks did not want people roaming their land at will. The Bronczyks were especially concerned that the wetlands designation gave people the right to hunt on their property, which the couple didn't want given that portions of the wetlands were only 200 yards from their home.
The Bronczyks filed a lawsuit in 1994 against the State of Minnesota for a regulatory taking of their property. The Bronczyks argued that since the state deprived them of the right to exclude people from their property, the state owed them compensation for the loss of that fundamental right. In 1996, a state judge ruled that the couple had a right to prohibit people from trespassing on their land. The judge granted the DNR's request to dismiss the lawsuit but only on the condition that it make concessions to the Bronczyks on controlling public access to their farm.
Source: Institute For Justice
Blind Widow Condemned to Lonely Separation from Family Because of Wetland
For nearly 40 years, Belva Coblantz, now 83, has lived on a five-acre parcel of property in St. Helens, Oregon. She and her husband purchased the land in 1960 for $6,500. Now a widow, Coblantz wants to sell her property and relocate to California so she can be near her daughter. Almost blind, she would like to have family around for company and to help her with her daily routine. But Coblantz can't sell her land because the State of Oregon and the City of St. Helens says there is a protected wetland on it.
Coblantz's house is surrounded by houses and businesses. In
addition, new development is taking place all around her. Naturally,
she didn't expect any problems when she decided to sell her land
for $310,000 to a development company that wanted to build an
assisted care unit on the site. But in August 1999 she received
a letter from the company canceling the purchase because it discovered
that the State Lands Division determined that a protected wetland
covers most of the site making construction impractical. Coblantz
needs the money from the land to be able to move to California
to live near her daughter. Now she is stuck living in St. Helens.
Coblantz can't understand how her land can be considered a protected wetland. She says houses are being built just a few blocks away from her on land that is far wetter than hers. Likewise, a city councilman who owned land right next to hers was able to sell his land for housing development even though he had to pump water out of the basements of those houses during construction. Coblantz talked to the city planner about trying to get the wetland designation changed but she says, "he wouldn't give an inch." Coblantz said he actually told her she should just be content to live there the rest of her life.
"I really need the money," says the widow. "I'm nearly blind now and I want to be close to my daughter." She feels the whole wetland thing is deeply unfair. "I really and truly don't understand how people working for the government can think that what they are doing to me is right."
Source: Oregonians In Action
Mud Puddle Ruled Protected Wetland, Ruining Elderly Couple's Retirement Plans
In 1987, Walter Olsen purchased a 1.5-acre parcel of waterfront property in Southampton on New York's Long Island. He and his wife wanted to develop the property, lease it out and use the income to fund their retirement. But the Town of Southampton later determined that there was a wetland on their property, making development impossible.
When the Olsens purchased the land, they knew that part of the property was affected by tidal wetlands and they thus were willing to surrender about one-third of the property for wetlands protection. That still left enough land for their plan to construct a small restaurant. But about three years into the permitting process, when the couple was on the verge of getting approval to build, the town said there was a freshwater wetland on the site.
Olsen says there was absolutely no evidence presented by the town, the state Department of Environmental Conservation or anyone else that there was a freshwater wetland on their property. The town, however, ruled that a man-made mud puddle constituted a protected wetland. Runoff from a state highway in front of the Olsens' property created a small puddle on their land for one or two weeks a year during the rainy season before drying up. The town used that as an excuse to declare another third of the Olsens' land a protected wetland.
That additional wetland ruling did not leave enough land for development so the Olsens sued the town for a regulatory taking. Unfortunately, they lost because the town said there were 27 other uses the Olsens could apply for.
Says Olsen, "You can imagine how old I'd be if I went though the 27 other uses if this application took ten years." After seven additional years of unsuccessful attempts to develop the property, he sold it to the town for $150,000 even though its assessed value was $350,000. Olsen made no money on the sale because he used the money to pay off the lawyers and consultants he had employed during his fight with town regulators.
Source: Property Rights Foundation
Developer Forced to Spend $80,000 to Get Permit to Fill Tiny Wetlands
John Piazza, a developer in Mt. Vernon, Washington, had no idea that his application to build a mini-storage complex on a seven-acre parcel of property would mark the beginning of a four-year regulatory struggle over its impact on alleged wetlands.
After getting a conditional permit in April 1991 to build his storage facility, Piazza hired a company to determine if there were wetlands on the site. The company identified three separate areas totaling .31 of an acre that could be considered wetlands. Piazza then applied for a fill permit from the U.S. Army Corps of Engineers. Since the wetlands were so small and isolated, Piazza didn't believe there would be any problem. He was sorely mistaken. In March 1992, the Corps of Engineers initially said a fill permit would be issued within a week. But a month later the Corps of Engineers changed its mind and ordered Piazza to file for another permit because officials thought the wetlands may be more sensitive than originally believed. This led to three years of bureaucratic haggling.
Piazza didn't understand why the Corps of Engineers raised so many objections to his construction plans. The three wetlands that so concerned officials were only wet in the winter months and only one, wetlands "B," held any water during that period. But, as it turns out, wetlands "B" was man-made. A pipe installed on the interstate next to Piazza's land was clogged, which caused water to seep onto his property, creating the standing water. Piazza submitted this information to the Corps of Engineers along with a statement from the previous owner who said that he never saw any standing water on the property in the 26 years he owned it. In addition, aerial photographs clearly showed that there were no wetlands on the site prior to the construction of the highway.
It wasn't until June 1995 that the Corps of Engineers finally approved of Piazza's fill permits. Looking back on the regulatory nightmare that cost him $80,000 in fees for attorneys and consultants, Piazza wonders about the efficiency of the wetlands permitting process. "If I was going to be denied a permit, OK. But if it took me four years to get ones I qualified for, something's wrong."
Source: John Piazza
Family Loses Parcel of Property Because It Tried to Protect it from Pollution
Roger Macnamara and his family own a 300-acre parcel of property along Florida's Kissimmee River. Concerned about people camping on the riverbank and leaving trash, they built a fence to protect the property in 1991. The Kissimmee River Valley Sportsman's Association, a group of air boaters, then sued the Macnamaras, claiming that the fence prevented them from using land that was owned by the state.
The property had been in the Macnamara family since Mrs. Macnamara's great grandfather bought the land in 1901. But the Sportsman's Association decided to take advantage of the state's efforts to reassert control over millions of acres of privately-owned land that it claims it sold in error.
Although most of the land in dispute is never under water, a low area behind the fence periodically floods during the rainy season. According to the Sierra Club, which represented the Sportsman's Association in the case, the flooded area turns the portion of the Macnamaras' land temporarily cut off from the shore into an "island" in the river. Since all islands in state-owned rivers also belong to the state, the Macnamaras would thus have no right to fence this so-called island off. A state court agreed and ruled for the Sportsman's Association.
Source: Randall Holcombe
Man Who Paid $1 Million for Property May Lose it to State
Joe Lombardo purchased a marina on 12 acres of land along Florida's Crystal River in 1986 for $1 million. A year later, the state claimed that the marina, originally built in the 1960s, was not his because it was located on state-owned land.
Although Lombardo's property had been deeded over by the state of Florida to private owners more than 90 years ago, the state claims that was a mistake and wants the land back. Lombardo's property, officials argue, was state sovereignty land and should never have been sold to private owners. They are demanding the Lombardo property without offering any form of compensation.
Source: Randall Holcombe
Family Loses Land After County Court Overrules Federal Court by Declaring Creek Navigable
The Lykes brothers owned a portion of Fisheating Creek in Florida's Glades County - or at least they thought they did until the state of Florida tried to take it away from them.
The Lykes had allowed the public to use the creek for recreational purposes and even maintained a campground on the land. Then in 1988, they closed off the creek after vandalism and poaching became a major problem. Angry residents persuaded the state to sue the Lykes on the basis that the creek was a navigable waterway that the state should never have sold decades ago.
Initially, the state tried to file suit in federal court but was rejected because the U.S. Army Corps of Engineers ruled that Fisheating Creek was not a navigable waterway and thus not subject to federal jurisdiction. The creek is quite small and the only boats that can use it are small skiffs and canoes, and then only during the rainy season. The state then successfully sued the Corps of Engineers to have Fisheating Creek declared a navigable waterway. The Lykes in turn sued the Corps of Engineers to reverse the ruling. In 1995, a federal judge ruled in the Lykes' favor. The judge rejected the claim that Fisheating Creek could be useful "as a highway for commerce" and characterized the creek as nothing more than a "series of small pothole lakes, shoal areas, sandbars, narrow creek beds and marshes."
The state did not give up, however, and in 1997 filed yet another suit against the Lykes in Glades County Circuit Court. The judge refused to allow the Lykes to present evidence of the federal ruling of nonnavigability or their deeds to the property. After a six-week trial, the jury found Fisheating Creek to be a navigable waterway and therefore not the Lykes' property. The creek reverted back to the state. The Lykes are currently appealing the verdict.
Source: Florida Legal Foundation
Florida Asserts Ownership of Farmer's Land Due to a 93-Year-Old Mistake
David Smith owns a 250-acre plot of land in Florida's Brevard County but the state wants to take it away without compensating him because it claims it made a mistake when it sold the property more than 90 years ago.
In the 19th century, the federal government granted about 20 million acres of land to Florida with the expectation that the state would sell the land to private owners. By the early 20th century, the state had sold more than 19 million acres of this land, including what was later to become Smith's property. The state kept control of rivers, lakes and the immediate surrounding area and sold the adjacent land to private owners.
Until the 1970s, the state did not claim ownership of any land it thought it had wrongly deeded to private owners. Even in cases where the state improperly sold land, the Florida courts always ruled for private owners. A basic principle of property rights law holds that once someone is deeded a piece of property, the seller can not later reclaim the land arguing they made a mistake in selling it.
But starting in the 1970s, the Florida Department of Natural Resources began demanding the return of millions of acres of private land claiming that the state wrongly sold land too close to state-owned waters. After initially rejecting the state's claims, the Florida Supreme Court ruled in 1986 that the state could assert ownership if it could show that the lands were close enough to a state-owned river or lake.
For years, David Smith used his land, which is next to a lake, to graze cattle and grow rye and oats. Then in 1996, the state of Florida filed suit to gain control of Smith's property. Even though he and his predecessors had possessed, used and paid taxes on the property for more than 50 years, the state wanted to take it without compensation because government officials allegedly made a mistake selling it in 1906. In addition, the state is claiming that Smith illegally built a series of dikes on the land in the 1970s even though the state approved of their construction at the time. Although state courts have issued some rulings favorable to Smith, the case is still ongoing and he could still lose his land.
Smith is not the only one in trouble. The state is attempting to take as much as 3 million acres of land from as many as 140,000 private owners.
Source: Florida Legal Foundation
Man Threatened With Millions of Dollars in Fines for Building Pond Corps of Engineers Okayed
In 1985, the Robert Mondgock family decided to build a house in Mansfield Township, New Jersey.
But the land they chose had some drainage problems caused by the township's poor drainage techniques. Robert Mongdock purchased the property after the Burlington County Soil Conservation District (BCSCD) informed him that he could construct a pond in the back yard to control the water runoff, a widely accepted practice in the area. In 1986, Mondgock hired an excavator and began to dig.
Shortly thereafter, the New Jersey Department of Environmental Protection (DEP) informed him that he needed a permit to dig because his property was located in a flood plain, so he dutifully applied for one. While waiting for the approval, Mondgock contacted the U.S. Army Corps of Engineers because he "figured they should know EXACTLY what I had to do." The Corps of Engineers approved of the pond.
Even though the Corps of Engineers and county government officials approved of the pond, the DEP denied Mondgock's request for a permit saying he violated regulations "promulgated pursuant to the Flood Hazard Control Act." They ordered him to fill in the pond and restore the property to its natural, wet condition. Although a DEP engineer testified at a 1989 administrative hearing that the DEP often approves of man-made ponds in flood hazard areas, the administrative law judge ruled that Mondgock had violated the Flood Hazard Control Act.
Mondgock appealed to the Office of Administrative Law Court, which found the Administrative Order to be "unduly punitive and out of proportion" to his actual culpability and ordered that he should be allowed to reapply for a pond permit.
Mondgock is still seeking a permit and each time he applies, his application is sent back with a warning that it "will not be inexpensive." Mondgock has spent more than $83,000 fighting the state and has been threatened with millions of dollars in fines. The DEP is currently demanding a "donation" of over $12,000. Says Mondgock, "If I did have an extra $12,000 to donate, it would certainly go for a needier cause, such as cancer research for children."
Source: Robert Mondgock
Florida Couple Endures 14-Year Legal Odyssey to Defend Property Rights
When James and Kathy Saboff purchased a parcel of Florida waterfront property to build a house, they had no idea the transaction would mark the beginning of a tortuous property rights dispute that would take 14 years to resolve.
There was nothing extraordinary about the Saboffs' land. It simply was the last undeveloped lot in a residential subdivision. But in 1989, when they applied for a permit to build their house, the St. Johns Water Management District told them they could only build the house if they agreed to dedicate half of their property to a conservation easement. Although the district board later voted to ease the restriction on the Saboffs, environmental groups, including the Audubon Society, successfully appealed the decision. As a result, the Saboffs could not disturb most of their property lying between their house and the river. Unlike all of their neighbors, the Saboffs were prevented from clearing and using their own backyard.
The Saboffs filed a lawsuit against the St. Johns Water Management District claiming that its decision constituted a regulatory taking. A Florida trial court dismissed the Saboffs' claim, ruling that they could only get compensation if they were deprived of "all economically viable use" of the property. Undeterred, the Saboffs appealed the trial court decision to a state appeals court which ruled against them in 1996.
The Saboffs then filed a suit in federal district court which
finally gave them the relief they had long sought. The court ruled
that the Saboffs were owed compensation for a partial regulatory
taking and awarded damages for violations of their rights to due
process and equal protection. The jury awarded the couple $100,100
for the regulatory taking of more than half of their property.
It also awarded them $14,000 because the district treated them
unfairly compared to the other residents of the neighborhood.
Source: Florida Legal Foundation
Florida Agency Refuses Court Order to Pay Couple $1.4 Million for Taking Their Property
In 1970, James and Elevira DeVincenzo purchased a 1.1-acre parcel of submerged land in Indian Rocks Beach, Florida. Their plan was to fill the submerged land, which was basically shallow mudflats, and build condominiums on the site. But for more than 20 years, the Florida Department of Environmental Protection (DEP) stopped the DeVincenzos from building on the property. Although the courts recently ruled that the DEP owes the couple more than $1.4 million for depriving them of rightful property use, the DEP is refusing to abide by the decision.
When the DeVincenzos applied for a dredge and fill permit from the DEP in 1978, they had no reason to believe that there would be any problem. Other submerged land was being filled and developed all around the DeVincenzos' property. The State of Florida had even sold the property in 1952 for the express purpose of development. Yet the DEP refused to grant the DeVincenzos a fill permit. For the next 16 years, the couple fought the DEP in an attempt to get their application approved. Finally, in 1994 the DEP said that it would issue the DeVincenzos a fill permit only if the couple agreed to establish a conservation easement consisting of 47,276 square feet of their 47,916 square-foot property. That would leave the couple with only 640 square feet of land to develop, impossibly small for any economically-profitable development.
The DEP's decision cost the DeVincenzos more than $1.4 million. The couple had spent more than $100,000 in purchasing the land, maintaining it and commissioning the engineering and survey work required by the DEP application process. The DEP's ruling rendered the land - once worth as much as $1 million -virtually worthless.
In 1996, the DeVincenzos filed a lawsuit seeking compensation for a regulatory taking. In 1998, a state circuit court ruled that the DEP owed the DeVincenzos more than $1.4 million. But the DEP has refused to pay the money out of its budget, claiming that the state legislature has to appropriate the money. The DeVincenzos have taken their case to the state supreme court hoping that the court will order the DEP to pay them what they are owed.
Source: David Smolker
Florida Couple Spends 17 Years Fighting for Compensation
In 1984, Richard and Ann Reahard were offered $1.2 million by a developer for their 40-acre parcel of land, containing 126 undeveloped residential lots, in Lee County, Florida. But the deal collapsed when the county passed a law that sharply restricted development to allow the construction of only one house on the entire 40 acres - a huge lot of about 800 feet of road frontage and about one mile of river and bay frontage. The value of the property plummeted to $40,000.
The Reahards then spent five years negotiating with the county for compensation. Those talks broke down and the couple filed a lawsuit in Lee County Circuit Court. In 1991, a federal district court awarded the Reahards $700,000. The county appealed the decision to the 11th Circuit Court of Appeals which sent the case back to the federal district court for a re-trial. Again, the federal district judge ruled for the Reahards.
The county continued to file appeals. In February 1997, the Reahards once again found themselves filing their lawsuit in Lee County Circuit Court just as they had done eight years previously. A jury awarded the Reahards $600,000 for the original taking plus interest, bringing the total to $1.4 million. Later, the judge ordered Lee County to pay $455,000 in attorneys fees and another $100,000 in costs for a total settlement to $2 million.
Not surprisingly, Lee County filed yet another appeal. In February 1998, Florida's 2nd Circuit Court of Appeals upheld the settlement. The Reahards are still waiting to see if the county will appeal.
Source: Defenders of Property Rights
New York Couple Fights Three Years to Save Home
When Tai and Adele Aguirre renovated their home in upstate New York in 1994, little did they know that it would mark the beginning of a three-year legal nightmare with New York City bureaucrats that would nearly cost them their livelihood.
Tai and Adele moved from Queens to Putnam County, 100 miles from New York City, and purchased a dilapidated two-bedroom bungalow for renovation. The couple planned to use the bungalow as a residence and place of business. They received the necessary approvals for the renovation work. Both the Putnam County Department of Health (PCDOH) and the New York City Department of Environmental Protection (NYCDEP) inspected the home's septic tank on numerous occasions and found it to be in good operating condition.
But then the NYCDEP unexpectedly sued the Aguirres, claiming that their septic tank did not meet state standards. The NYCDEP argued that the septic system was insufficient for a four-bedroom house. The Aguirres only had two bedrooms.
"They sued us over a septic system that was examined by them and found to be working perfectly," says Tai Aguirre who was perplexed by the NYCDEP's sudden change of mind.
According to the Atlantic Legal Foundation, which represented the couple, by suing the Aguirres, New York City hoped to set a precedent in state supreme court allowing the city to regulate land use and development 100 miles from the city.
The Aguirres refused to back down and waged a media campaign to publicize the NYCDEP's tactics. Although they had to spend about $10,000, the Aguirres were able to put the city on the defensive. A spokeswoman for the NYCDEP severely hurt the agency's credibility when she claimed that although the Aguirres' septic tank was in good condition now, she argued, "Some day in the future a septic could break down." The Aguirres used statements like this one to sway public opinion in their favor.
In April 1998, the NYCDEP dropped its lawsuit. "It's ironic that the terms of the settlement stipulated that we pump the septic tank less frequently than we already have been doing," says Tai Aguirre. "So why all these years of harassment and waste of taxpayer dollars?"
Source: Tai and Adele Aguirre
City Condemnation Deprives Couple of Nearly Half Their Property
In 1974, Charles and Donna Calhoun purchased a 51-acre parcel of undeveloped land near the city of Durant, Oklahoma. But in 1979 city officials announced they intended to condemn all of the Calhouns' property to make way for a reservoir the city wanted to build. The Calhouns' land was rendered virtually worthless since it was just a matter of time before it would be at the bottom of a lake. The city refused to compensate the Calhouns for their loss. After ten years of waiting for the city to determine the final disposition of their land, the couple finally filed a lawsuit in 1989 demanding the city compensate them for the years their land was held in limbo by its condemnation ruling.
In 1990, Durant officials finally ordered the formal condemnation of 23 acres of the property, leaving the other 28 acres for the Calhouns. That year, an Oklahoma trial court ruled that the city's condemnation ruling had been a "taking" and awarded the Calhouns compensation for a permanent taking of the 23 acres as well as compensation for the temporary taking of the other 28 acres. Later, a state appellate court struck down the trial court decision claiming that "there was no physical invasion of the Calhouns' land, and there was no regulatory action taken by the city."
The Calhouns are now appealing that decision to the U.S. Supreme Court, claiming that government cannot be allowed to subvert constitutionally-protected property rights when exercising its power of condemnation.
Source: Pacific Legal Foundation
City Prefers Decision of Judges to Jury of Peers
In 1984, the City of Monterey, California allowed Del Monte Dunes, a development company, to purchase a 37-acre parcel of beachfront property to construct a 190-unit condominium development. The project was not unique since other developments had been allowed on the beach.
But environmental groups opposed the development, arguing that the site was important habitat for the endangered Smith's blue butterfly. In 1986, the city council responded to the pressure and repealed its approval. Del Monte Dunes then sued, claiming the city's action had unfairly impaired the land's value.
A federal district court jury agreed, holding that the city's land-use restrictions amounted to a "taking" of property without "just compensation" as required by the U.S. Constitution's Fifth Amendment. The jury awarded the developer $1.45 million. The city appealed the decision, arguing that lawsuits involving land-use decisions should not go before juries that tend to be more sympathetic to individuals negatively affected by zoning laws while judges tend to side with the government.
The 9th U.S. Circuit Court of Appeals upheld the decision in 1996. The City of Monterey appealed the decision to the U.S. Supreme Court. In a closely-watched decision that both sides considered pivotal for the future of zoning regulatory policy, the High Court ruled in May 1999 that landowners who sue local governments over land-use regulations have a right to a jury trial.
Source: Pacific Legal Foundation
County Rules Couple Can't Live on Land Unless They Harvest Its Trees
In 1983, Tom and Doris Dodd purchased a 40-acre parcel of property in Hood River County, Oregon for $33,000 to build their retirement home. "It was perfect," says Tom Dodd. "Quiet, pristine. Doris and I decided right then that this would be the ideal place to build our dream house after I retired."
Or so they thought.
At the time of the purchase, the property was zoned for a single-family dwelling. But in 1984, the county rezoned the property to "Exclusive Forest Use." Officials didn't even tell the Dodds of the rezoning. Under the new zoning rules, the Dodds could only use their property for growing and harvesting timber. The only way the Dodds could build a house is if they became full-time foresters who absolutely needed to have a house on the property.
Tom Dodd, who retired from the Air Force in 1988 and had no interest in forestry, said that not only was the rezoning totally unfair, it didn't make any sense. "I couldn't even sell this parcel to someone who wanted to run a forestry business." It seems a forest expert appraised the property for its resell value and concluded that a timber operation on the Dodds' land would not be economically possible or environmentally-sound. As a result of the rezoning, the value of the Dodds' property plummeted from $33,000 to only $700.
The Dodds filed a lawsuit against Hood County demanding that it compensate them for this regulatory taking. For six years, the Dodds waged a legal battle. They lost in state court but continued their challenge in federal court. But a federal district court judge threw the case out on the grounds that their federal constitutional challenge should have been brought in state court. Eventually, the Dodds got their case back to federal court. When it did, the county gave in and agreed to grant the Dodds a land use permit for their home.
But the Dodds continued their legal challenge demanding compensation for loss of the property for more than six years. Unfortunately, a federal court of appeals ruled against the Dodds and in October 1998 the U.S. Supreme Court refused to review their case.
Source: Pacific Legal Foundation
New York City Dumps on Car Wash Owner
In 1988, Soon Duck Kim purchased property in Queens, New York, where she operated a car wash and leased space for an auto shop. Everything was going fine until June 1990 when the City of New York buried 2,400 square feet of her property under four feet of dirt. The city was raising the road in front of Kim's property by more than four feet. Under a city ordinance, the municipal transportation department could order property owners to fill or raise their lot at their own expense at any time.
But Kim filed a lawsuit against the city claiming that she was owed compensation for the large portion of her property the city took to raise the road. The New York Supreme Court in Queens County disagreed with the claim, accepting that that the city had the legal right to force Kim to fill her own property at her own expense. Kim appealed the decision, but the New York Supreme Court Appellate Division ruled against her as well, claiming that the city's dumping of more than four feet of dirt on her land "did not constitute a 'permanent physical occupation' of [her] property" that would justify her receiving compensation.
Undeterred, Kim appealed to the New York Court of Appeals. The Court of Appeals ruled that Kim had no legal remedy for the city's occupation of her property because she purchased the land after the city had enacted the law in 1962. Her lawyers pointed out the unfairness of this interpretation because her neighbors who purchased land before 1962 would get just compensation. Moreover, her lawyers argued that the law was written in such a way that the city could have buried all of Kim's land to raise a roadway.
Kim took her case to the U.S. Supreme Court, arguing that New York City's law is unconstitutional because it allows the state to take someone's property without having to pay any compensation. Unfortunately, in 1997 the High Court refused to hear the case.
Source: Pacific Legal Foundation
County Zoning Restriction Slashes Disabled Man's Property Value From $750,000 to $2,000
When Jim Watts purchased a 40-acre property in Deschutes County, Oregon in 1986 for $42,500, he thought he was making a sound investment in the future. He planned to build his retirement home on the land.
Then, in 1993, Watts seriously injured his back while on the job as a heavy equipment operator. After several operations, it was clear he would never do heavy manual labor again. Just 42 years of age at the time, Watts needed to find a new line of work. He decided to sell one of the three parcels of his property and use the proceeds for vocational training. It seemed like a good plan since a realtor had appraised each parcel at about $250,000.
After getting an offer for the parcel in 1994, Watts was shocked to learn that the county would not issue a building permit. One year earlier, the county had changed the regulations prohibiting any building on private property zoned as exclusive forest use. The county had assured Watts before he purchased the property that this designation would never be a problem for Watts in developing his land.
Since the property was zoned for forest use, Watts applied for grants from an Oregon forestry program and the U.S. Department of Agriculture's forestry program to plant a tree farm. But forestry officials rejected his application, saying that his sagebrush-covered property was too arid to support trees.
Eager to resolve his problem, Watts met with county officials to determine what options were open to him. The officials told him that he could reapply to have his property re-zoned.
He spent $3,500 on the lengthy re-zoning process. But in 1998, the county denied his request. Because of the zoning restriction, the value of Watts's property is now only $2,000.
Things have been tough for Watts these last six years. Because of his age, back injury and the loss of a right hand in another accident, he says it is very difficult to find a decent job.
Source: Oregonians In Action
Couple Loses Most of the Value of Land After County Zones Suburban Plot for Farm Use
In 1986, Dean McGregor and his wife bought an $80,000 parcel of property in Clackamas County, Oregon with the idea of constructing a home on the site. The couple postponed building plans, however, because shortly after the purchase, the McGregors, who already had two children, adopted three additional children. With five small children, Dean McGregor said his wife preferred to wait until the kids were older before building a new home.
By 1996, the McGregors were ready to build the house on the two-acre site and submitted a building plan to the county. But the county rejected the McGregors' plan. The tiny plot had been zoned for exclusive farm use (EFU). Under Oregon law, no one can build a home on EFU-zoned property if it doesn't show a gross farming income of $80,000 or greater in each of the two previous years, or three of the last five years.
There is no way that the McGregors' tiny two-acre plot could produce that kind of income. The plot is in the middle of a subdivision, surrounded by houses on all sides. What value the county sees in preventing development on a plot of land overgrown with bushes and trees is mystifying to the McGregors. Says Dean McGregor, "I haven't a clue as to what their logic is."
The county's decision has cost the McGregors dearly. In 1996, the property was assessed at $250,000 but is now assessed at only $50,000. In addition to paying off most of the $80,000 sale price, the McGregors had to pay the county $8,000-$9,000 in taxes on the property every year it was assessed at the higher $250,000 value.
The McGregors haven't given up. Dean McGregor has hired a land-use consultant and hopes he can persuade the county to change its decision.
Source: Oregonians In Action
Separation of Church for its State
In 1992, a Lutheran congregation in Wilsonville, Oregon paid $270,000 for 15 acres of land on which it planned to construct a new church. The land was zoned as exclusive farm use (EFU) which means that no building can be constructed on such property unless it produces a gross farm income of more than $80,000 in each of the two years prior to purchase or three of the last five years. Although the church clearly had no intention of using the land for farming purposes, an exemption at the time allowed churches, schools and cemeteries to build on EFU-zoned land without having to meet the farm income requirements.
Then, in 1994, the state changed the law and eliminated the EFU exemption for churches. Because the state did not include a grandfather clause exempting churches purchasing EFU land prior to the rule change, the Lutheran congregation was left with 15 acres of unusable land.
Initially, church officials thought that this legal complication could be corrected relatively easily. But their hopes were dashed when the state supreme court ruled that the new law did not exempt churches. Church officials then looked to the state legislature for relief. This seemed more promising because the legislature did approve a bill that would continue the EFU exemption for affected churches. But the governor vetoed the bill, claiming that it would set a dangerous precedent for unchecked development.
The current pastor of the church, Doug Adams, rejects such concerns.
"This is not prime farmland. The farmer who sold it to the church used it to graze his cattle and did not grow anything." Pastor Adams notes that the land is surrounded by a variety of residential and commercial development which includes a quarry just down the road. Denied an exemption, the church was forced to purchase another four-acre plot for $415,000. Pastor Adams says their plan now is just to wait and hope that a zoning change in five years or so will allow the church to sell off the unusable 15-acre plot.
Looking back on the experience, Pastor Adams says, "What mystifies me is why churches couldn't have been grandfathered. I would have thought this would have been an easy legal battle."
Source: Oregonians In Action
Environmental Regulations Ruin Value of Land Held By Man for More Than 30 Years
Ed Cox purchased a plot of land in Portland, Oregon for $4,000 in 1967, paid taxes on it and waited several years for an appropriate time to build a house on the site.
But when Cox finally decided to develop the property in 1991, he learned that the county would not issue a building permit because the property was covered by a series of environmental protection regulations, imposed after 1967, that made development prohibitively expensive. An environmental protection (EP) overlay zone, which bans virtually all development, covered all but a five-foot strip of Cox's 11,000 square foot lot. As for the five-foot strip - just big enough for a popcorn stand - that too was covered by an environmental conservation (EC) overlay zone. This allowed development but only if the owner mitigated the adverse environmental impact. The reason for such restrictions is unclear as the plot is located in a residential neighborhood.
A city planner finally permitted Cox to build on an 18-foot section of his property - provided his land could be granted a more flexible EC designation. Cox paid for a pre-application hearing and initiated the process to change the zoning. But then he learned that he would have to spend $25,000 to $35,000 for an environmental impact evaluation, an engineering study and a soil analysis. Even then, a land-use attorney advised that there was a slim chance the city would change the zoning.
Making matters worse, eighteen feet was hardly wide enough for a house. The house would be located right on the street with no front yard. Even had Cox decided to build a house, neighbors told him they would file a lawsuit if he built a house with no front yard.
Faced with all these obstacles, Cox abandoned his construction plans. In a subsequent lawsuit he filed against the county over the property's taxable value, Cox claimed that the property had been rendered valueless. The Oregon Tax Court rejected his claim but agreed that it had been substantially depreciated and ruled that it was worth no more than $2,000.
Source: Oregonians In Action
Elderly Oregon Man Doesn't Live to See His Rights Restored
Over 20 years ago, Bill and June Hackett paid $65,000 for a 2.3-acre parcel of property in Portland, Oregon. They planned to sell the property to supplement their retirement income. But in 1991, these plans were dashed by local regulations.
Hackett wanted to sell the property, which had increased in value to $200,000. But Multnomah County officials rejected the necessary building permit, saying it was zoned for commercial forest use. This designation prohibits construction of homes. The Hacketts were angered upon hearing this news because there was no regulation in effect prohibiting construction when they purchased the property.
But Hackett, a retired Army Major who was a veteran of the Korean and Vietnam Wars, was not about to take this injustice lying down. For the next eight years, he waged a determined struggle to assert his property rights. The Hacketts went to numerous county commission hearings in an effort to persuade commissioners to change their ruling but were stymied each time. These hearings each cost $500 plus other legal costs, forcing the Hacketts to spend $20-$30,000.
What frustrated the Hacketts the most about their situation is that their property is a forested site with houses on three sides. Down the street, a neighbor was allowed to sell her 10 acres for $650,000. But the county and local environmentalists argue that allowing the Hacketts to build on their land would damage fish and other wildlife on a nearby creek.
Dave Hunnicut of Oregonians In Action, a property rights group assisting Mrs. Hackett, says the county's real goal is not to protect the environment but to stop further housing development. For example, the county would allow the Hacketts to chop down all the trees on the site and sell the lumber as firewood. Yet the county will not approve June Hackett's proposed house even though it would have been far more attractive environmentally.
The case has taken its toll on the couple. Mr. Hackett died at the age of 80 in 1999. "The frustration for my husband was just incredible," says June Hackett, who has vowed to carry on the fight.
Source: Oregonians In Action
Grandfather Loses $100,000 Because Property Was Illegally Subdivided 20 Years Before He Bought It
George Milliken paid $97,000 in 1997 for a 19th century church in Clackamas County, Oregon, to renovate as a house for his daughter, son-in-law and their child. One day he found a county notice on the building ordering him to cease all work. The county said his property had been illegally subdivided nearly 20 years ago, barring him from doing anything with the property.
For several years, the Evergreen Community Church owned the .6 acre parcel of land that later became Milliken's land. Then the church purchased a house on a .3 acre parcel adjoining this plot for use as a parsonage. In 1978, the church sold the parcel with the church building to a new owner and sold the parsonage to another owner. What no one knew at the time was that this was an illegal subdivision. Milliken explains that under a state law enacted in the 1970s, whenever two contiguous properties are joined they become one property. Because the church property was not a legal residence, county regulations prohibited the combined properties from being resold separately. Both the parsonage property and the church had to be sold in one parcel. Yet the county never made this known to the church and the many successive owners of both of the properties.
There were three different owners of the .6 acre church parcel prior to Milliken purchasing the land. The house next door, the former parsonage, also had three different owners. All transactions, it turns out, were illegal. But it was impossible for anyone to know this as the properties were classified as two distinct tax lots with the respective owners paying different taxes. Nor would the properties' status show up in a title search because the state, when it passed the law, never informed local officials that the affected properties in their jurisdictions had been reclassified. Milliken says, for that reason, title insurance companies disclaim any responsibility for properties that are in dispute. It wasn't until Milliken bought the church property that the county finally decided there was a problem.
Milliken, who is an experienced realtor, hired a lawyer but was unable to persuade the county to change its position. Says Milliken, "I'm stuck with a piece of property I can do nothing with. I can't renovate it. I can't sell it." He sees no rationale in the county's position. The property doesn't belong to the current owner of the former parsonage next door nor does it belong to the county. It is Milliken's. The church is just sitting there unoccupied. Concludes Milliken, "Basically, I'm out $100,000."
Source: George Milliken
Local Zoning Restriction Costs Elderly Man His Retirement Nest Egg
More than 30 years ago, Ed Campbell of West Linn, Oregon and his business partners purchased a 120-acre parcel of property that they planned to sell for residential development. In 1979, Campbell and two partners divided up the remaining 60 acres with Campbell getting a 20-acre parcel. While his partners sold their parcels, Campbell waited until market conditions improved. By 1995, Campbell decided to sell only to learn that the county government prohibited development on the property.
When Campbell acquired the 20-acre parcel in 1979, Clackamas County imposed no restrictions on selling the land for development. His two other business partners were able to sell their parcels without a problem. But in 1993, the county imposed an anti-growth restriction stipulating that a new house could only be constructed if there were five houses built prior to 1985 within a half-mile square area of the proposed house. The county refused to grant Campbell the necessary permit because there were only four houses in his area.
The county's refusal cost Campbell a fortune. Since the 1960s, he has invested about $40,000 in constructing roads, installing a water system, running electrical lines and investing in other infrastructure necessary for a home. Campbell stood to earn $167,900 from selling the lot. The county's development restriction has thus cost him more than $200,000, money the 80-year-old was depending on to help finance his and his wife's retirement.
He is considering filing a lawsuit against the county for a regulatory taking of his property.
Source: Oregonians In Action
California Woman Forced to Live in Trailer After State Agency Bars Home Construction
Peggy Ann Buckley purchased a 2.75-acre parcel of property in Malibu, California in 1988 to build a house. But after spending more than three years getting the required development permits from the County of Los Angeles, the California Coastal Commission (CCC) ordered her to stop all further work citing alleged environmental concerns.
When Buckley purchased the property, it was zoned as single-family residential which exempted it from the regulatory authority of the CCC. The CCC is charged with managing certain types of development on California's coasts. But Los Angeles county was ostensibly the only governmental entity that had authority over Buckley's site.
The county approved Buckley's proposed house and by 1991 had issued most of the development permits so construction could begin. But the CCC did not want to cede any authority to the county over coastal development and blocked her building plans at every turn.
Things reached a crisis in March 1991 when a landslide started to develop on part of the lot. The county issued Buckley abatement orders allowing her to repair the landslide by grading the site. But when she started the grading work, the CCC issued several stop-work orders. As a result, the landslide ruined about half her land. Tired of what Buckley called CCC's harassing tactics, she went to court to get relief from the agency. The CCC then filed a countersuit claiming Buckley owed thousands of dollars in fines for illegal development work - development that the CCC did not even have authority to regulate.
A state trial court ruled that the CCC had no jurisdiction over Buckley's land and awarded her thousands of dollars in damages. On appeal, however, the state courts reversed the damages award while still ruling that the agency had wronged Buckley. In 1999, the U.S. Supreme Court refused to hear her case.
Currently living on her property in a trailer, Peggy Ann Buckley will continue to seek compensation for the $2 million in damages the state inflicted on her and the $1 million in legal bills she has accrued. Says Buckley, "This is absolute tyranny. If this can happen to me, it can happen to anyone."
Source: Peggy Ann Buckley
Widow Prohibited From Harvesting Timber Needed to Pay Property Taxes
Anne Dail wanted to harvest timber on a 37-acre tract of her land in York County, Virginia. A widow, Dail wanted to use the income from the timber harvest to pay her property tax debt and maintain the forestland for her children. But county zoning authorities are requiring her to submit extensive reports and environmental evaluations that are so costly that she can not afford to harvest her own timber.
When Dail decided to harvest the timber, she was very scrupulous in making sure she was in compliance with all relevant environmental regulations. She hired a professional consulting forester to ensure that she complied with all state laws. She notified the Department of Forestry of her harvesting plans.
Even though she was following all state requirements, York County officials told her she would have to submit a comprehensive "forest management plan" and set aside substantial amounts of her property as "buffer zones."
The county argues that it has the right to restrict or prohibit development in the name of protecting the environment. According to the Southeastern Legal Foundation, which is representing Dail, the county's land-use ordinances requires Dail as well as other property owners to pay for engineering reports, water quality impact statements, natural resources inventory and a forest management plan for review and approval - or disapproval - by the zoning administrator. Dail simply cannot afford to comply with these onerous requirements.
In 1998, she filed a lawsuit to enjoin the county from enforcing a county code, ordinance or any regulation that imposes acreage limitations, buffer zones and other restrictions on her property. Her lawyers argue that the county zoning ordinances are preempted by state law which prohibits local governments from placing additional regulatory burdens on foresters.
Source: Southeastern Legal Foundation
Couple's Home Bible Study Banned by Zoning Ordinance
Every week, nine to 15 women would gather at Diane Reiter's Denver home for Bible study, prayer and dinner. The meetings were hardly disruptive as there was no loud music, speeches or other noise. Yet in October 1998 the Denver zoning administration served Reiter a cease-and-desist order citing a municipal ordinance which prohibits more than one "prayer meeting" a month in a private home.
Reiter and her husband David, an assistant pastor with a nondenominational ministry, were shocked by the order. The Bible meetings were simply a private affair organized by Reiter that had nothing to do with her husband's ministry work. Reiter's guests typically parked 10 cars, all legally, on the street. The couple had received a couple of complaints about the parking but it hardly seemed to constitute a neighborhood nuisance. Kent Strapko of the Denver zoning administration says that such once-a-month rules are issued after neighbors complain about parking and noise, and can apply to any activity from book club meetings to poker games.
But when the Reiters appealed the cease-and-desist order to the zoning board of appeals, the director of the board, Janice Tilden, told the Reiters that the problem wasn't the cars, it was the fact that they were holding a prayer meeting. The Reiters' attorney, Jay Sekulow, says that Tilden told the couple that had Reiter been holding a book club meeting, then it would probably have been "no problem."
The Reiters have filed a lawsuit in federal court charging the city of Denver with violating their constitutional rights to religious freedom. Says Sekulow, "The idea that a zoning authority can restrict the number of Bible studies at a private home is incredible."
Source: American Center for Law and Justice
Washington Couple Told to Tear Down House that Government Said They Could Build
In 1997, Brian and Jody Bea wanted to build a house on a piece of land that has been in the Bea family for three or four generations. It is located in the Columbia Rive Gorge Scenic Area in Skamania County, Washington.
Because all new construction must meet the strict guidelines set forth under the federal Columbia River Gorge Scenic Area Act, the Beas had to go through an extensive regulatory review process. Skamania County has a list of 23 requirements governing construction, location and surrounding vegetation that is meant to insure that the house blends in with the scenery. Skamania County determined that the Beas' plans met all of their requirements and approved the house.
The Beas' housing application then went to the Columbia River Gorge Commission, a bi-state commission responsible for overseeing development in the gorge. The Gorge Commission had no objections to the Beas' proposed building plans and raised no other concerns about a possible negative environmental impact. The county then gave final approval to the Beas' application.
The Gorge Commission had another 20 days to disapprove the county's approval of the Beas' building application. Again, the Gorge Commission offered no objections and the Beas began building their home.
Then, more than a year later, the Columbia River Gorge Commission ordered the Beas to stop building their home - even though the house was already 60% complete. The Gorge Commission claimed that the Beas' home was not "visually subordinate" to the surrounding landscape. In other words, they thought it was too visable. The Commission's executive director, Jonathan Doherty, says the only way the house could be brought in compliance is if the 4,000-square foot structure is torn down and/or re-located elsewhere on the Beas' 20-acre lot.
The Beas are now in state court in an attempt to overturn the Commission's decision. They argue that they followed the various bureaucracies' rules in the building application process. Brian Bea estimates that their losses, for construction and other expenses, are already close to $300,000.
Source: Pacific Legal Foundation
Occupational Safety and Health Administration
OSHA Backs Down After Bad Press
Judy Hooper is the proud owner of Judy's Bakery in Evanston, Illinois, a 30-person store specializing in doughnuts and other assorted bakery items. Grossing about $50,000 a year, Hooper's business is typical of many small business success stories.
In 1994, Occupational Safety and Health Administration (OSHA) officials conducted an inspection of her bakery as a result of a complaint filed a disgruntled employee alleging violations of worker safety laws. After a three-hour inspection, OSHA officials found no evidence to corroborate the employee's complaint. But that didn't stop them from hitting Hooper with $13,000 in fines for a myriad of trivial workplace violations. Her infractions included: 1) Failing to post a "Material Safety Data Sheet" warning employees of hazardous chemicals. The hazardous substances OSHA claimed threatened worker safety included household bleach and a pink dishwashing liquid, both of which had warning labels. 2) Failing to have a written plan for emergency fire evacuations even though there were four clearly marked exits in the one-story store. 3) Failing to keep an accident log on the shop's wall even though there were no accidents to report.
Hooper was determined to fight OSHA. She went to the local and national media, appearing on such programs as CNN and "Eye to Eye With Connie Chung." With such favorable publicity, she was able to pressure OSHA in reducing the fines to $5,450. For this, she agreed to spend $7,500 on employee health and safety programs.
In hindsight, Hooper says she probably could have avoided paying fines altogether had she chosen to "keep the heat" on the agency. Based on her experience, Hooper says the best way to fight OSHA is to go to the press and expose their heavy-handed behavior to public view. "They are lily-livered cowards who don't like bad publicity."
Source: Judy Hooper
OSHA Shakes Down Private Charity
The Whitin Community Center has been operating in Northbridge, Massachusetts since 1923. Inexpensive to join, it provides families access to a gym, a swimming pool, tennis courts and meeting rooms for such events as Bible studies. In addition, it offers a special outreach program that makes it possible for children from families on limited incomes to use the facility for free. But when local citizens decided to expand and renovate this popular public institution, OSHA inspectors filed numerous complaints, mostly against the contractors, that needlessly cost the center time and money.
In one case, OSHA inspectors cited the Center with a violation because an IBM typewriter was not equipped with a grounded three-prong plug. But IBM typewriters do not require a three-prong plug because they are double-insulated. Nevertheless, the Center's trustees and director were anxious to resolve the problem and agreed to pay OSHA a $750 fine. Says James Knott, a local businessman and a major supporter of the Center, "I was astonished that OSHA would stoop so low as to steal, and I say again, steal money from the Community Center."
Source: James Knott
Massachusetts Business Fined for Measuring Hole
James Knott is the President of Riverdale Mills Corporation, a wire-mesh manufacturing plant in Northbridge, Massachusetts. A responsible businessman and a major supporter of community charities, Knott has nonetheless been repeatedly targeted by the U.S. Occupational Safety and Health Administration (OSHA). Although he has been inspected about a dozen times since the 1970s for alleged workplace safety violations, he has never been found guilty of an infraction and never paid a fine.
One of the more outrageous instances of OSHA regulatory abuse occurred in 1996. During an inspection, one of the OSHA inspectors noticed a maintenance man climbing down a ladder into a hole less than six feet deep in a road owned by the company. The hole appeared after a recent flood. The maintenance man - a man Knott has worked with for more than 40 years - had to enter the hole to determine how much concrete was needed to fill it.
The OSHA inspectors accused Knott of violating OSHA regulations that prohibit workers from entering a trench at least six feet deep without protective walls. But this regulation didn't apply in this case because the hole was not a trench dug by men. It was a hole created by a flood and there was no danger of the hole caving in. The maintenance man tried to explain these circumstances, but the inspector wouldn't listen.
Knott was slapped with a $4,500 fine. He refused to pay. When he contacted the OSHA office, an OSHA staffer suggested that instead of fighting the fine in court, Knott should just pay half the fine and OSHA would forget the matter. But Knott told him, "The fine isn't the problem. The problem is that OSHA has created a public document that says I endangered a man's life" and he insisted on going to court to clear his name. The maintenance man who OSHA claimed it was protecting, wanted to testify on Knott's behalf.
But the judge dismissed the case before it ever went to court. Apparently, OSHA asked the case to be dismissed once it became clear that Knott would not back down and the maintenance man was prepared to take the stand.
Knott claims the same OSHA inspectors subsequently returned to his mill on numerous occasions and he believes these visits were in retaliation for fighting the fine. Knott fought each additional citation and got each one dismissed.
Source: James Knott
Federal Migratory Bird Act
New York Couple Experiences Real-Life Version of Hitchcock's "The Birds"
Dan and Carol Ann O'Byrne thought they were building their dream house. What they got instead was an nightmare eerily reminiscent of Alfred Hitchcock's movie, "The Birds."
After their first house burned down in 1994, the O'Byrnes used the insurance money to build a new house on their three-acre plot in Gardiner, New York. But they have been unable to enjoy their new 3-bedroom Cape Cod because they have been harassed by a swarm of vultures. Constantly hovering around the house, the vultures frequently perch on the deck, roof and backyard fence searching for food, which, Mrs. O'Byrne is convinced, includes their dog Jack.
The vultures have inflicted considerable damage on their property but the O'Byrnes are prevented from getting rid of them because vultures are protected by the federal Migratory Bird Treaty Act of 1918. The O'Byrnes have applied for a special permit from the U.S. Fish and Wildlife Service to shoot some of the birds to try to scare the others away but it's a long cumbersome process with no guarantee of approval. Says Richard Chipman, New York state director of the U.S. Department of Agriculture, "They are trying hard to do the right thing."
In the meantime, the O'Byrnes can only watch as the vultures tear up their house. The birds rip up the roof with their talons, ruin the deck finish with droppings and repeatedly shred the window screens.
Dan O'Byrne has tried to scare off the vultures by playing tapes of shot gun blasts but that only caused the neighbors to call the police. Moving is not an attractive option since - not surprisingly - the property value has dropped from $189,000 to $142,000 and it's hard to find any buyers. But the O'Byrnes want to stick it out. Says Dan, "I built this house out of love. I don't want to give it up."
Source: People Magazine
Parks, Wilderness and Scenic Protection
New York State Tries to Bar Handicapped from State Parks
In 1995, the New York State Department of Environmental Conservation (DEC), responding to the demands of environmental groups, began barring the handicapped from using motorized vehicles on trails and roads in the state's Adirondack Forest Preserve and other state forests. New York's disabled citizens were outraged by the order because the DEC reneged on a compromise that would open dozens of roads to the disabled. Motor vehicles are the only means for many of the disabled to enjoy the parks.
After many handicapped had their permits revoked, they decided to file suit in federal district court charging the State of New York with violating the federal Americans with Disabilities Act, which guarantees the disabled equal access to public facilities.
DEC workers were still allowed to use the road while the disabled - and the general public - were barred.
On July 28 1998, a federal district judge issued a restraining order prohibiting enforcement of the discriminatory regulation.
Theodore Galusha, one of the plaintiffs in the suit, is thrilled with the decision. He suffers from multiple sclerosis and looks forward to once again being able to drive his all-terrain vehicle to his favorite nature spot. Another plaintiff, Teena Willard, who has been paralyzed for 20 years as a result of a car crash, says, "This is just awesome... that we have the right to go up these trails and woods."
Source: Property Rights Foundation
Forest Service Tank Traps Almost Kill Snowmobiler
Brent Robson, a county commissioner from Tetonia, Idaho and an experienced snowmobiler, was leading a group of snowmobilers one day in 1998 when, without warning, his machine violently lurched into the air before coming to a rest in the bottom of a 15-foot pit. Robson broke his back and had to spend 12 weeks in a cast and go through extensive physical therapy.
He later learned that the pit that nearly killed him had been constructed by the U.S. Forest Service. The Forest Service has been constructing these pits - or in the words of Idaho Congressman Helen Chenoweth-Hage, "tank traps" - to prevent snowmobiles and other vehicles from accessing the 400 miles of public roads in the Targheee National Forest. Each trap has a 15-foot earthen wall and a 15-foot pit. There are no signs posted to warn recreational users about their location. In fact, the trap that almost killed Robson was in the middle of an ordinary forest road. Because there was snow on the ground, the unmarked trap was nearly invisible.
Outraged by this blatant disregard for public safety, Congressman Chenoweth-Hage sharply questioned Forest Service chief Mike Dombeck and Undersecretary of Agriculture Jim Lyons about the service's policy in a February 1999 hearing. Lyons originally claimed that the traps were intended to protect elk and grizzly bears. The Forest Service's Dombeck finally agreed that the traps posed a serious safety problem and promised to look into the matter.
Source: Rep. Helen Chenoweth-Hage
Man Spends $170,000 and Ten Years Trying to Build a House on his Own Land
Since 1989, Jim Wickstra has been fighting for compensation from the Michigan Department of Natural Resources (DNR) to get compensation for refusing to allow him to build a house on property he owns in Muskegon County.
Wickstra purchased a 3-acre parcel along the Lake Michigan shorefront to build a quality beach home he could sell for as much as $500,000. But a few months after he bought the land, the state of Michigan approved the Michigan Sand Dune Protection Act designed ostensibly to protect sand dunes from encroaching development. Because Wickstra's house would be located on one of the protected dunes, he had to seek the approval from the Michigan Department of Natural Resources (DNR) to start construction. The DNR denied his permit even though he offered to build the house on stilts, which would minimize the impact on the dune.
Wickstra filed suit against the DNR on the grounds that denial of the permit reduced the value of his property. A Michigan Tax Tribunal ruled that the lot was worth $200,000 with a building permit but only $500 without a permit. The Michigan Court of Claims Judge, Carolyn Stell, rejected Wickstra's property rights lawsuit, arguing that his property value didn't decline sufficiently in value to justify compensation for a regulatory taking.
Although he was unsuccessful in appealing the case, Wickstra has vowed to fight on. He is particularly angered by the fact that a DNR official, David Moss, may have given false and misleading statements in court. According to Wickstra, Moss claimed that local officials told Wickstra that he could build his house on a wetland located behind the sand dune. But Michael Cockerill, supervisor of the White Ship Township, submitted a letter to the Michigan Court of Claims saying: "At no time did I tell David Moss or anyone else that fill would be permitted on the wetland area." Nevertheless, the courts have accepted the DNR's claim that Wickstra would have to go through the process of applying for a building permit that he knows and the county knows will not be granted.
Wickstra says the ordeal that has cost him $170,000 in legal fees.
Source: James Wickstra
Local Sand Dune Ordinance Deprives Couple of $150,000 Property
Richardson Bell and his wife purchased two residential lots in Virginia Beach, Virginia in 1979 to build a house. For 20 years, the city, ostensibly to protect sand dunes, has refused the couple the right to build on their land - rendering the property useless.
The Bells first applied for permission to develop the property in 1979 but the city of Virginia Beach rejected the plan. At the time, the Bells had 50% ownership in the Seawall Corporation through which they purchased the property. In 1982, the Seawall Corporation was dissolved and they became the sole owners. That year, the Bells again applied for permission to build but were again denied. This time, the building permit was rejected under the Sand Dune Protection Act. The legislation, passed by the state in 1980, allows local communities to adopt their own ordinances to protect sand dunes. Virginia Beach's ordinance required property owners who plan to "use or alter any coastal primary sand dune within this city" to obtain a permit from the Virginia Beach Wetlands Board. The board refused the Bells a permit because the proposed construction would harm a sand dune on the site. Ten years later, the board again denied the couple permission to build a single-family home even though the property was zoned for such residential development.
In 1995, Richardson Bell filed a lawsuit against the city claiming that the board's denial of his building permit deprived him of any economically viable use of his property. In January 1997, a jury ruled in his favor, finding that the sand dunes regulation had deprived the Bells of rightful property use and awarded the couple $141,517 in compensation.
The city appealed the decision to the Virginia Supreme Court which overturned the jury's award. The court reasoned that the Bells did not effectively acquire the right to develop the property until 1982 when they became the sole owners. Since the sand dune regulation was adopted in 1980, the court argued that the Bells had to accept any restrictions that preexisting regulations imposed on their property at the time they purchased it.
The Bells unsuccessfully appealed the Virginia Supreme Court's decision to the U.S. Supreme Court in 1997.
Source: Pacific Legal Foundation
Maryland Regulators Deny Handicapped Girl Access to Scenic Waterfront
In 1996, John and Anita Mastandrea of Easton, Maryland constructed a 1,000-foot brick path on property they own along a creek that runs behind their home. The path was built so that their daughter Leah, 19, who suffers from muscular dystrophy and is confined to a wheelchair, could enjoy the scenic Chesapeake Bay tributary called Globe Creek.
But in June 1999, the Talbot County Circuit Court ruled that most of the Mastandreas' walkway violated Maryland's Critical Areas Act which forbids almost all construction within 100 feet of the water line. Calling it "one of the most unpleasant cases I've had the misfortune to rule on," Judge William Horne ordered that most of the path be torn up within the year.
The Mastandreas' legal battle began in the fall of 1996, when a county zoning inspector noticed the brick walkway that runs parallel to Globe Creek about 25 feet inland from the shoreline. When the inspector discovered that the Mastandreas had not obtained a building permit, they were instructed to secure a variance under the county's Critical Area Program. This program was mandated by Maryland's 1984 Critical Areas Act to specifically control waterfront construction that increases natural water runoff and consumes tidal wetlands that sustain the Chesapeake Bay.
The family applied for a zoning variance from the County Board of Appeals arguing that the brick path was essential because Leah would not be able to negotiate a gravel path in her wheelchair while wood decking, which is permissible under the law, would be too slippery. The Critical Areas Commission filed an objection to the Mastandreas' request, arguing that the law would only permit a brick path from the Mastandreas' home down to their wheelchair accessible dock but not along the shoreline. The board sided with the Mastandreas in a 3 to 2 vote.
The state Critical Areas Commission appealed the decision asking the board to reconsider for technical reasons. The board quickly reaffirmed its decision saying that a "literal enforcement of the law would result in unwarranted hardship to the owner." The state appealed a second time to the county court which ultimately ruled against the Mastandreas. The family plans to appeal this decision. Says their attorney David Thompson, "We will continue to give the Critical Areas Commission the opportunity to exercise the same compassion that Talbot County Board of Appeals showed."
Source: David Thompson
The Tide is High
Lechuza Villas West, a California development company, purchased 17 beachfront lots for $2 million in Malibu, California in 1990. The company wanted to build single-family houses similar in size, type and distance from the ocean as the numerous homes located on either side of its property. But the California Coastal Commission (CCC) refused to allow the company to build on the grounds that every few years the high tide would temporarily advance on to its property.
After obtaining approvals from various Los Angeles County government agencies, the company applied for a permit from the CCC, which is charged with managing beachfront development. The CCC rejected its permit applications four times between October 1990 and January 1993, citing a litany of alleged environmental hazards posed by its construction plans.
The most novel of these objections was the state's argument that changes in the high tide boundary prohibited any private development. Under state law, beachfront property owners are not allowed to build on any part of the beach covered by high tide. The purpose of this restriction is to ensure that the public can use a portion of the beach between private property and the ocean. Although this seemed reasonable, the CCC claimed that, on seven occasions between 1946 and 1988, the average high tide line temporarily advanced inland onto the company's property, thus submerging the easement for public use. The CCC denied the company's building permit even though three beachfront homes similar to those proposed by it were approved and built after the company acquired the lots.
Lechuza Villas West challenged all of the denials in a Los Angeles County Superior Court. After the fourth denial, the company returned to the state court, seeking to overturn the denials of the permit applications and receive compensation for the agency's taking. The trial court ruled that the CCC could not cite a fluctuating high tide boundary because the boundary between private property and public tidelands was indeed a fixed line. The company's damages were deferred to a later trial, but it never took place. A state appellate court ruled that the company had not exhausted all of its legal remedies before making a takings claim. Both the California Supreme Court and the U.S. Supreme Court refused to review Lechuza Villas West's case.
Source: Pacific Legal Foundation
Interior Places Higher Value on Wilderness Than Human Life
Kathy Hoff was the only licensed nurse in the tiny village of King Cove, Alaska. So in 1980 when a fireman was seriously injured and required medical treatment that the primitive village facilities could not provide, she believed it was her duty to accompany him on a perilous plane flight to Anchorage. Tragically, however, the MEDIVAC plane crashed soon after taking off from King Cove's crude airstrip in bad weather, killing Kathy, the fireman and two others on board.
Kathy's story is not unique. Since 1981, eleven people have been killed attempting to fly out of King Cove in the poor weather conditions that constantly plague the isolated community. Many of these deaths would not have occurred if the village had a road connecting it to the town of Cold Bay, which has a safe all-weather airport. But the U.S. Department of the Interior is refusing the residents' desperate pleas for a road because the road would pass through seven miles of a federal wildlife refuge.
The Interior Department and at least 20 national environmental organizations claim that the road would seriously damage critical wildlife habitat even though the proposed single-lane gravel road would only skirt through a tiny portion of the refuge and residents have promised to limit road use during the peak season of bird migrations. They've also offered to donate 650 acres of wetlands to compensate for the land that would be used for construction.
Residents are especially incensed with environmentalists' arguments that there are other effective means of medical evacuation such as a ferry service across the bay to Cold Bay. The same high winds that make flying out of King Cove so hazardous routinely whip up 15-foot swells making the two-to-four hour ferry crossing just as treacherous.
Alaska's congressional delegation has introduced legislation to allow the road construction to proceed, but the Clinton Administration has vowed to veto the bill.
All Marvin Hoff can say is, "If we had such a road, my wife Kathy would be alive today."
Source: Bob Juttner
One Thousand Acres of Land Needlessly Burned Because of Wilderness Protection Regulations
When volunteer firemen in Elko County, Nevada were alerted to a wildfire in the nearby Cedar Ridge Wilderness Study Area on July 19, 1998, they immediately rushed to the scene to extinguish the blaze. But the Bureau of Land Management (BLM) forbade the firemen from driving their trucks over 200 yards of brush to reach the flames because it would allow motor vehicles to travel offroad in a federally-designated wilderness area. The result: 1,000 acres of protected wilderness burned needlessly.
Elko County Commissioner Royce Hackworth was outraged when he learned of the BLM's action the next day. Because the volunteer firemen had been turned away only 200 yards from the fire, firefighters had to walk two-and-a-half miles the next day from the nearest road to reach the flames. It was too risky to make the trek at night. The fire had burned 70 acres the first day but had spread to more than 800 the next day, when full-fledged firefighting efforts could begin.
BLM officials insisted they had no choice but to follow the law as approved by Congress. It eventually took 156 firefighters and a dozen planeloads of retardant worth $60,000 to bring the fire under control three days later. Hackworth and the firemen believe the fire could have been stopped the first day had the BLM let them use their trucks.
"It's a waste of resources," says Hackworth. "It could have been put out for less than $15,000."
U.S. Congressman Jim Gibbons denounced the BLM's actions on the floor of the House of Representatives. "This environmental extremism has allowed the fire to burn nearly 1,000 acres... The lack of common sense and the bogus government extremism are wasting taxpayer dollars. This could threaten our land and destroy human lives in the process."
Source: Royce Hackworth
Dueling Bureaucracies Turn Elderly Couple's Lives Upside Down
When Conrad and Carol Russell purchased a 300-acre site in upstate New York eighteen years ago, they planned to gradually subdivide the site and build nice houses while preserving the peaceful scenery of the land. But that simple plan has been turned upside down by two regulatory entities: the Adirondack Parks Agency (APA) and the Town of Russia.
The problem is that both the town and the APA assert jurisdiction over the Russells' property - but rarely agree as to what the couple can do with their land. Conrad Russell says that one agency approves a project only to have the other reject it. Worse, says Russell, "one agency might approve a permit, then rescind it a month later. In one case, permits were given twice and rescinded twice."
For example, the Russells wanted to subdivide several parcels for home construction. APA regulations require the lot sizes to be a minimum of 3.2 acres, so they made the parcels at least five acres in size. But the Town of Russia had adopted its own regulations requiring the lot sizes to be at least eight acres. The couple had to spend an additional year getting a variance from the town to authorize the five-acre lots.
Their latest regulatory headache has been their five-year attempt to build a bed and breakfast. In 1994 they were issued a permit by the Russia Town Board and then applied to the APA. After waiting a year, they found out that the APA would not issue the necessary permit. Asserting jurisdiction over the entire 176-acre parcel, the APA ruled the Russells couldn't build within 200 feet of a body of water and ordered them to halt further development. After the Russells spent two years attending countless meetings, researching town records and talking to dozens of government officials, the APA finally issued a permit in 1996.
But then the town rescinded its original permit, saying it had made a mistake. The Russells are still trying to obtain the permit.
Source: Property Rights Foundation
U.S. Forest Service Orders Man to Burn Cabin that has been Owned by Family Since 1923
Bob Learzaf received the shock of his life when seven federal marshals burst into his Pittsburgh apartment one hot summer day in 1999, cuffed him, put him in leg irons and hauled him off to jail. After sitting in jail for two hours, he was finally shown his arrest warrant. His crime: He refused to abide by an order from the U.S. Forest Service to abandon a cabin that had been owned by the Learzaf family for more than 70 years.
Learzaf's story began when his great uncle, Mel Sojanski, and some friends purchased the quarter-acre property for $150 from the Iron City Lumber Company in October 1923. The bill of sale clearly identifies "all the buildings and land comprising Iron City Junction" as belonging to Learzaf's Uncle Mel and his friends, who used the cabin as a hunting lodge. When the federal government purchased the remaining land of the Iron City Lumber Company in 1928, the government recognized the bill of sale. Since the Forest Service's Allegheny National Forest completely surrounded the Learzaf cabin, the government required the owners to obtain "special use permits." At the time, the government said permits were an accounting mechanism to enable the government to monitor activity on or near the national forest.
But in 1976, the Forest Service issued a special permit with the proviso that after 20 years, the Iron City Junction property would revert back to the government. When Learzaf acquired the property after his Uncle Mel died, he was unaware of the government's claim that it owned the land.
It was not until 1996 when a Forest Service official ordered Learzaf to "vacate the property and burn your cabin" that he realized there was a problem. Learzaf strongly objected to the Forest Service's demand that he burn his cabin. He hired an attorney who arranged for two postponements for a court date. Although a new date had been set, no one bothered to inform Learzaf. When he failed to appear, authorities promptly issued a warrant for his arrest. A judge quickly released Learzaf after the prosecutor couldn't show that he had served Learzaf with a court notice. He is now waiting for a federal judge to decide the fate of his property.
Source: Robert Learzaf
Regulators Give Mining Company No Credit for Protecting Historic Cave
A small mining company in Orange County, New York was forced to wait four years for a permit to expand its operation. The reason: State officials claimed that the proposed expansion would threaten a historically-important cave on its property even though scientific studies showed that the mine posed no danger to the site.
When the New York Department of Environmental Conservation (DEC) refused to grant the company approval to dig a new pit in the mid-1990s over concerns that it would harm the archaelogically-important cave, company officials were surprised. After all, it was the company which first discovered the cave in the 1960s and ever since then the company had undertaken extensive efforts to protect it from trespassers. Taking great pride in this natural treasure, the company gladly allowed scientists to conduct archaelogical studies of the site and even volunteered to fund its own research projects.
That is why when the company decided to dig a new pit near the cave, it worked closely with the State Historic Preservation Office to determine how much of a buffer area the company should set aside to prevent damage. The company, which supplied aggregate rock for concrete, had to dig a new mining pit if it hoped to stay in business since its other pits were running nearly exhausted. But the company also wanted to insure that in building a pit, it would not endanger the cave.
Initially, the State Historic Preservation Office indicated it would grant approval for the expansion after it conducted studies showing that the mine posed no threat. But local opposition generated significant pressure to stop the expansion. After a year of delays, the company approached the state Governor's Office of Regulatory Reform (GORR) for relief. For nearly a year, GORR worked with the DEC to resolve the company's permit application. GORR officials said their main goal was to make sure that only sound science, not political considerations, would be taken into account when the DEC made its decision. Finally in 1997, the DEC issued the company its expansion permit.
Source: New York Governor's Office of Regulatory Reform
Government Sides With Environmental Activists and Deprives Indian Tribe of Use of Land
For the past 18 years, the U.S. Department of the Interior and the U.S. Forest Service has thwarted efforts by the impoverished Chugach Indian tribe of Alaska to develop a 73,000-acre tract of land rich in mineral and timber resources that the government initially promised the indians they could develop.
In 1982, the Forest Service agreed to recognize the right of the Chugach to build an access road through the publicly-owned land surrounding the 73,000-acre tract known as the Carbon Mountain Tract. Tribal leaders were excited about the prospect of harvesting the land's vast timber resources and even organized a private company, the Chugach Alaska Corporation, to develop the land. But just when the tribe was ready to implement its harvesting plan, the Forest Service raised numerous environmental objections that delayed construction of the road. Between 1996 and 1998, at the insistence of the Forest Service, the Chugach spent millions of dollars assessing the environmental impact of a road and paid Forest Service officials hundreds of thousands of dollars in fees just to review the tribe's application for a road easement.
Edgar Blatchford, Chairman of the Finance Committee of Chugach Alaska Corporation's Board of Directors, says, "Despite these studies, which the Forest Service accepted as complete, despite these enormous sums of money, despite the promises and contractual commitments..." the Forest Service still refused to approve the road. In desperation, the tribe sought congressional legislation to allow the road in 1998. The Forest Service insisted that such legislation was not necessary, however, as it was ready to approve the road under the 1982 agreement. But one year later, the tribe still has no road.
In January 1999, the Forest Service said that the tribe had addressed its environmental concerns and would approve an easement in 45 days. But then environmental groups began pressuring the agency and the Forest Service refused to grant the easement. Sheri Buretta, chairman of the Chugach Alaska Corporation Board, says, "Without access, the 73,000 acre tract at Carbon Mountain is worthless. There is a war being waged against the continued private ownership of this land. We are witness to this by the treatment that we have received from federal agencies, which give more weight to the views of environmental activists than they do to their obligations to the Native people."
Source: Testimony of Edgar Blatchford and Sheri Buretta before U.S. House of Representatives Resources Committee, July 1999
Environmental Protection Agency
EPA's Sludge Policy May Have Killed New Hampshire Youth
When Joanne Marshall kissed her son Shayne goodnight on Thanksgiving evening 1995, little did she know that it was the last time she would ever kiss him goodnight. Later that night, Shayne, 26, woke up gasping for breath. Paramedics rushed him to the hospital where he was later pronounced dead, cause of death officially unknown.
But some scientific experts believe that the Environmental Protection Agency (EPA) may be to blame.
It seems that other members of the Marshall family and neighbors in the New Hampshire community also experienced difficult-to-treat and unexplained diseases, including respiratory flu-like symptoms that can make breathing and swallowing difficult. The health problems mysteriously started in October 1995 when a contractor started dumping sludge from municipal waste treatment plants on a nearby field. The contractor's employees also experienced similar health problems one year prior to Shayne's death which required the contractor to take steps to protect his workers.
The practice of dumping municipal waste sludge, it turns out, is official EPA policy. In 1993, the EPA ordered that all sludge, which contains human feces, hospital waste and various chemicals, be dumped on land after ocean dumping was outlawed. EPA persists in this policy despite warnings from several scientists - including whistleblowers from within the agency - that it may harm humans. Dr. David Lewis, an EPA scientist who has been harassed for his public criticism of the agency, believes that toxic fumes produced by chemically-treated sludge could be what killed Shayne Marshall.
At the very least, studies should be conducted to assess the impact on public health, Lewis believes. But the EPA doesn't appear interested in finding out and is even trying to prevent Lewis from researching the problem. Joanne Marshall was shocked and angry when she learned that EPA had no interest in investigating whether her son's death was linked to possible exposure to sludge.
One reason for this inexplicable disinterest may be politics. Dr. Alan Rubin, who wrote EPA's sludge regulation, testified before the New Hampshire state legislature that sludge "wasn't too toxic for the ocean. The reasons we got it out of the ocean was basically an image-political deal."
Source: Dr. David Lewis
EPA Sludge-Dumping Policy Implicated in Death of 11-Year-Old Boy
Tony Behun was a typical eleven-year-old boy growing up in Osceola Mills, Pennsylvania. Like many boys his age, he enjoyed riding his motorbike. One day he rode his motorbike through a mine reclamation field where municipal waste sludge was being dumped, a practice implemented and regulated by the Environmental Protection Agency. For that Tony may have lost his life.
Tony, who was by all accounts a healthy child, suddenly came down with an illness characterized by skin lesions, fever and respiratory problems. His mysterious sickness baffled doctors who treated him as if he were suffering from a blood infection. The doctors couldn't do anything for him and he died after just four days from kidney failure.
Dr. David Lewis, an EPA scientist who is an outspoken critic of the agency's sludge policy, examined Tony's medical records very closely and believes that his death, which occurred in 1994, was probably due to toxic fumes from the sludge. One of the most disturbing aspects of this tragic case is that scientists such as Dr. Lewis have repeatedly warned EPA that depositing sludge on land may pose a threat to public health. In 1994, the same year Tony died, a broad range of EPA research scientists, including biologists, microbiologists, chemists, toxicologists and soil experts, stated that the agency's 503 Sludge Rule regulating the dumping policy was so scientifically flawed that it may pose unacceptable risks to public health and the environment. But the agency pushed forward with its plans to dump sludge on land. Another young man in New Hampshire exposed to sludge died of an illness similar to Tony Behun's illness. Others have reported similar ailments after exposure to the sludge.
For instance, coal miners who regularly walk through the same sludge-laden field where Tony used to ride his motorbike have developed skin rashes and respiratory problems. Fortunately, none of the miners has died, but the United Mine Workers Union is so concerned that it has asked the federal Center For Disease Control (CDC) to investigate the suspicious relationship between the sludge dumping and the workers' ailments.
Dr. Lewis says that the EPA is trying to cover up its deadly mistake. Although the EPA says it has officially investigated complaints about sludge, Dr. Lewis says there has in fact been no investigation. Says Dr. Lewis, "It's a worst case scenario of what EPA too often does: Implement regulatory policies without relying on sound science."
Source: Dr. David Lewis
Georgia Dairy Farm Polluted by EPA-Approved Sludge Dumping
Andy McElmurray owns a dairy farm outside Augusta, Georgia. But it may be a dairy farm in name only for years to come. Andy McElmurray's fields have been ruined and his dairy cattle wiped out because chemicals from the sludge have polluted his soil.
For many years, the city of Augusta and Richmond County regularly dumped municipal waste sludge on fields including fields on McElmurray's dairy farm. He was told that it was safe to use the sludge as a fertilizer. In 1986, he began noticing problems with his cattle. They were getting sick and experiencing ailments such as salmonella poisoning. He hired veterinarians and other specialists to investigate, but no one could determine the source of the mysterious illnesses. By 1990, he suspected that the sludge was the source of the problem and stopped allowing it to be dumped on his land. But the damage had already been done.
His cattle continued to deteriorate. In 1994, after experiencing problems with his cotton crop, he discovered that there were dangerously high levels of lead, mercury and molybdenum and other metals in the soil. These metals were poisoning his livestock.
McElmurray explains that metals, which the cattle consumed through grazing, attacked their immune systems. Operating much like the HIV virus, the cattle's immune systems' gradually deteriorated and they eventually died.
McElmurray estimates that his dairy cattle losses alone are nearly $10 million. The EPA sent officials to investigate the alleged sludge-related poisoning. But since EPA authorizes such dumping under its 503 Sludge Rule, EPA scientist Dr. David Lewis suspects officials refused to investigate the strong evidence linking sludge to McElmurray's dairy cattle losses. Another dairy farmer in the area also experienced similar problems.
Dr. Lewis says EPA officials have been known to avoid investigating similar instances of local sludge dumping policies to deflect attention from the fact that the agency actively encourages dumping.
McElmurray has filed a lawsuit against the city to recoup his losses and pay for the clean up of his polluted farm.
Source: Andy McElmurray
EPA Accused of Falsifying Evidence to Wrongly Convict Businessman
On August 12, 1998, James Knott, the president and CEO of Riverdale Mills Corporation in Northbridge, Massachusetts, was charged by the Environmental Protection Agency (EPA) with unlawfully discharging overly acidic waste water into the town's sewer system and the Blackstone River. He faced fines of up to $1.5 million and a six-year jail term.
But Knott maintained his innocence. Nine months later, a federal judge dropped all charges for lack of evidence. Indeed, Knott's lawyers charge that EPA officials falsified the wastewater readings in an unsuccessful attempt to wrongly convict Knott of an environmental crime he says he didn't commit.
The controversy stemmed from an inspection of Knott's plant by EPA officials on October 21, 1997. EPA regulations do not permit the discharge of waste water below a pH acidity level of 5. Although most of the samples collected by the inspectors were found to be well within federal guidelines, the EPA claimed that tests showed that one sample indicated a reading of 4. On that basis, Knott was charged with violating the law.
Knott denied he was guilty of wrongdoing and defended his company's environmental safety record.
"Did Riverdale Mills wastewater ever reach the Blackstone River without being treated? Absolutely, positively NO," says Knott. "Did Riverdale Mills wastewater damage the environment in any way? Absolutely, positively NO."
Knott and his team of lawyers and private investigators uncovered evidence they say shows that the sample allegedly implicating Knott in criminal pollution had been changed by EPA officials to show a lower reading. Knott hired a former FBI handwriting expert who confirmed their suspicions. At a federal hearing on February 5, 1999, Knott's Lawyer Warren Miller showed that an entry made by an EPA inspector appeared to have been changed from a pH reading of 7 - which is legal - to a pH of 4. Miller argued that an EPA supervisor had changed the inspector's entry of 7 to a 4 because he knew a 4 would be a violation.
In April 1999, U.S. District Court Judge Nathaniel Gorton dismissed all charges against Knott. Although not ruling on Knott's allegations that the EPA tampered with evidence, Judge Gorton did rule that EPA violated Knott's Fourth Amendment rights when EPA inspectors collected the controversial water sample out of sight of mill employees and without the permission of mill officials.
Knott is now seeking compensation for all the trouble EPA caused him.
"My expenses for witnesses, chemists and private detectives, an FBI handwriting expert and four attorneys alone are $238,000 out of pocket. The idea that they falsified evidence was just beyond my imagination," says Knott.
Source: James Knott
EPA Robs Poor African-American Community of Well-Paying Jobs
The residents of Romeville, Louisiana were enthusiastic about the new chemical plant that the Shintech Corporation was prepared to build in their tiny, impoverished community. The $700 million plant would have provided 165 jobs starting at $12-per-hour, which residents especially welcomed given that the average wage for work in the sugar cane fields - the community's most significant source of income - was only $6-per-hour.
But in 1998 the Environmental Protection Agency (EPA) denied Shintech a permit to operate because the people of Romeville are black. Under a new policy adopted that year, the EPA holds that any emissions-producing facility that has a "disparate impact" on minorities is in violation of Title VI of the Civil Rights Act. The EPA argues that it must prevent certain companies from locating in minority communities to allegedly protect these communities from becoming dumping grounds for pollution.
But the black residents of Romeville are outraged at the EPA policy. They don't see any benefit to a policy that keeps them poor to supposedly protect them from pollution. In fact, Romeville worked hard for two years to get Shintech to locate to their town. Gladys Maddie and her neighbors, for instance, organized the St. James Citizens Coalition to work with the company. "I asked them to help us," says Maddie. In addition to the jobs the plant would provide, Shintech promised to invest $500,000 in local job training and hire at least half of the 700 construction workers from the area.
Black politicians and civic leaders locally and nationwide have strongly criticized the EPA's policy. Detroit Mayor Dennis Archer called EPA's policy "so vague and so broad that it nullifies everything that we have done to attract companies to our brownfield sites."
Shintech is now building its plant in Addis, Louisiana, a more affluent, majority white area.
Source: Gladys Maddie
Small Businessman Faces Financial Ruin For Claiming Soap Kills Cockroaches
Charlie Sutherland owns Charlie's Soap, a small family-run business in North Carolina that manufactures an environmentally-friendly soap that is non-toxic, biodegradable and contains no bleaches or dyes. Nevertheless, the Environmental Protection Agency (EPA) is threatening to fine Sutherland for more than $100,000 because the product's label says that, among other things, Charlie's Soap kills cockroaches.
Sutherland claims his soap can clean everything from false teeth to diesel engines. But what got him in trouble with the EPA was the claim that the soap's bubbles choke cockroaches and "drops them dead in their tracks." According to the EPA, that makes Sutherland's soap into a pesticide which requires EPA approval that Sutherland never obtained. At first, Sutherland couldn't believe that the EPA agents who came into his store investigating him were serious but when they informed him that he was likely in violation of EPA pesticide regulations, he knew it as no laughing matter.
Jim Burnette, the Deputy Pesticide Administrator in North Carolina who is on contract with the EPA, says: "The label is pretty serious business. It gets down to the law that says if you are going to make a pesticidal claim for a product, it has to be registered." Registration is not easy, however, as it takes a lot of money and 5-10 years of testing before a product like Charlie's Soap can be officially registered as a pesticide.
Sutherland thinks the EPA's investigation of him is ridiculous. It seems that most kinds of soap, including Ivory Soap, kill cockroaches. The only thing he was doing differently was actually telling consumers that his soap kills cockroaches. "I'm only telling the truth. What's the big deal here?" EPA's Burnette agrees that any soap will kill cockroaches. But he says Sutherland still can not make the claim on his label without getting the soap registered as a pesticide.
In addition to more than $100,000 in fines, Sutherland could also face jail time for marketing an unregistered pesticide.
Source: American Investigator TV show, produced by the Free
Congress Research and Education Foundation
Las Vegas Limousine Entrepreneur Fined For Offering Competition
Las Vegas resident William Clutter, a 37-year-old college graduate, was interested in finding a business that would be financially rewarding and would allow him and his wife to work together. Recognizing the great demand for luxury limousine service in Las Vegas, he decided to start his own limousine service. To do so, he borrowed money to buy a limousine, purchased a one million-dollar insurance policy and began driving clients to weddings, proms and the city's famed gambling strip.
Then in December 1997, an agent with the Nevada Transportation Service Authority (TSA) stopped Clutter for operating without a "certificate of public convenience and necessity," a new licensing requirement of which he was not aware. The TSA issued him costly citations and seized his car. His only real offense was that he dared to compete with the city's existing limousine services.
Dozens of aspiring entrepreneurs like Clutter have been arrested
and fined for trying to enter Las Vegas's lucrative limousine
service market. While a "certificate of public convenience"
would theoretically permit competition, the expensive certification
process is rigged to keep out new competitors. Those who have
tried to get the required certificate have found it virtually
impossible because a prospective limousine operator must demonstrate,
among other things, that his company will not take business away
from other limousine operators. This, of course, is an absurd
standard because the purpose of new companies is to compete with
Says Clutter, "Imagine if every burger joint that wanted to open had to show that it would not be taking business away from McDonalds."
Clutter was ordered to pay $5,000 in fines in addition to more than $2,000 for his vehicle's towing and storage fees. With his car impounded until he pays the fines, Clutter can not earn a living from driving but he still must pay for the car loan and the insurance. He also faces criminal prosecution that could result in one year of jail time.
Clutter and several other limousine operators have filed a lawsuit in state district court challenging the validity of the TSA's regulations and the monopoly that it has imposed on the Las Vegas limousine market.
Source: Institute For Justice
Las Vegas Abuses Eminent Domain to Seize Greek Immigrant's Business
During the 1940s, Greek immigrants Carol and John Pappas purchased a 7,000-acre parcel of land in downtown Las Vegas where they built a six-unit commercial building. For more than 50 years, the Pappas family rented this building to various small businesses. John Pappas died in 1981 and his widow, Carol, relied on the rent from the building as her main source of income.
Then in 1993, the City of Las Vegas, citing eminent domain, took the building claiming that it planned to construct a garage on the site for an urban redevelopment project. Government can use eminent domain to force a property owner to sell his property if the property is to be used for a public purpose. The city immediately gave the land to the politically well-connected casinos. The Pappases' commercial building was quickly leveled to make way for a profit-making parking garage operated by eight casinos. Adding further insult, a parking lot owned by Carol Pappas just a few blocks away lost significant business when the casinos offered her customers lower monthly rates.
Although the city offered the Pappases $480,000, it was a pittance compared to the money they could have earned from renting the commercial building. That is not the only loss they incurred. They lost much of their rental income after the city let it be known that beginning in the mid-1980s it was determined to condemn many of the downtown buildings as part of a redevelopment plan. Carol Pappas claims that one of the tenants said the city told him not to pay his rent.
In 1994, the Pappases filed a lawsuit challenging the seizure of their land as a violation of their constitutionally-guaranteed property rights. The judge initially ruled against the family in the opening stages of this five-and-a-half year legal battle. But then 18 months later, the judge resigned from office after he disclosed that he owned stock in one of the casinos. In 1996, Las Vegas District Judge Don Chairez ordered that the property be returned to the Pappases and that the city and casinos pay them damages.
But since Judge Chairez's ruling, the city and casinos have prevented the Pappas case from going to trial to assess damages.
Source: Grant Gerber
DMV Inspectors Shut Down Garage Owner Because He Didn't Keep Their Hours
Bill Coleman teaches auto repair at a correctional facility in upstate New York. To earn a little extra money, he also runs a small service station in the evenings where he repairs and inspects cars. But in 1999 he came close to losing his business because inspectors with the state Department of Motor Vehicles (DMV) could not conduct required audits of his books during their "normal business hours" between 9:00 AM and 5:00 PM, precisely when Coleman was at his other job.
Under New York DMV regulations, service station operators must make their books available to DMV inspectors who will periodically come to do audits during "normal business hours." However, normal business hours for DMV inspectors are 9:00 AM-5:00 PM. But for Coleman and many other business owners, these are not their regular hours. Because the inspectors could never find Coleman, who was at his other teaching job, they cited him for non-compliance, fined him $300 and, even worse, shut him down. After being closed for a few weeks, the New York Governor's Office of Regulatory Reform, which Coleman contacted for assistance, was able to get the DMV to rescind the fine.
Source: New York Governor's Office of Regulatory Reform
African-American Small Business Owners Threatened by Monopolistic Regulations
Cheryll Hosey and Michael Martin own a very successful small business in Youngstown, Ohio called "It's My Business (IMB) Hair Braiding Gallery." Specializing in the skill of hairbraiding, Hosey provides a valuable service to the African-American community as well as economically-rewarding employment opportunities to individuals trying to get off the welfare rolls. But the Ohio Board of Cosmetology is threatening to drive these entrepreneurs out of business because they don't have a cosmetology license.
The problem is the Board of Cosmetology doesn't teach hairbraiding and the licensing examination doesn't test for it. But the Board insists that Hosey take off work for nine months and spend $5,000 for 1,500 hours of cosmetology school. The Board has sent her several notices threatening her with criminal prosecution for operating without a license.
Dana Berliner, an attorney with the Institute for Justice that is representing Hosey in court, notes: "There is no justification for requiring braiders to go through one year of schooling that teaches them nothing about the occupation they want to practice."
Ironically, the county governments have no problem with IMB. Indeed, Mahoning and Trumbull counties asked IMB if they would hire welfare recipients as part of Ohio's plan to require welfare recipients to work for their benefits. The county human service agencies inspected IMB and determined that it would provide good skills training and a supportive work environment.
Says Hosey, "I see so many young women with the ability to braid, but they don't know how to make a career of it. I want to give them the motivation and incentive to become entrepreneurs themselves."
In October 1998, Hosey and other hairbaiders filed a lawsuit in federal district court arguing that the Board of Cosmetology's monopolistic regulations violate 14th Amendment guarantees of equal protection of the laws and due process.
Source: Institute for Justice
African-American Entrepreneur Wages Court Battle to Have Livelihood
Dr. JoAnne Cornwell chairs the African-American Studies Department at San Diego State University. She is also a successful entrepreneur who has trademarked her own unique style of hairbraiding, a popular African-American hairstyle. Her "sisterlocks" technique has been tremendously popular and has been featured in Essence and Black Hair Styles magazines. Operating out of her home, Cornwell developed a video-training course and textbook for people who want to learn the "sisterlocks" technique. But the California Board of Barbering and Cosmetology will not allow this highly-successful businesswoman to open a salon unless she meets onerous regulatory requirements that have nothing to do with the hairbraiding technique.
To get a license, the Board requires Cornwell to pay $7,000 for a nine-month course that teaches hairstyling techniques that have nothing to do with her specialized art of hairstyling. The examination does not ask a single question about hairbraiding. As a result of this regulation, thousands of African-American hairbraiders have abandoned their livelihoods or gone underground to avoid criminal prosecution for practicing without a license.
Cornwell argues that hairbraiding can provide African-American women with great business opportunities as it requires relatively little capital to start. She also argues that it represents a significant form of cultural self-expression.
"I think it is a crime and tragedy that what I do has to be underground," says Cornwell.
Cornwell and other hairbraiders filed a lawsuit in federal district court in January 1997 challenging the constitutionality of the Board of Cosmetology's regulations. Others have also questioned the need for the wasteful regulatory agency. In 1996, the California Department of Consumer Affairs (DCA) recommended that the Board of Barbering and Cosmetology be disbanded, citing its expensive $9.2 million budget. The DCA noted that out of 400,000 licensed hairstylists in California, the Board investigated only 15-20 formal complaints.
Cornwell's crusade for free enterprise has paid off. In August 1999, U.S. District Court Judge Rudi Brewster ruled that requiring Cornwell to comply with the Board of Cosmetology's expensive regulations "failed to pass constitutional muster."
Source: Institute for Justice
Successful Business For Stay-At-Home Parents Stymied by Federal Regulations
In 1990, Tanya Wallace of Manassas, Virginia got the idea to start a small business that would bring together mothers and children at dance studios and karate centers to play games. Wallace saw it as an excellent way for stay-at-home moms to meet one another while giving their children a regular time and place to play. She called her new business Toddlin' Time and it soon proved to be a great success. It was so successful that she decided to franchise her idea.
But franchising brought down the regulatory weight of the Federal Trade Commission (FTC) which eventually forced Wallace to give up her ambitious plans for Toddlin' Time.
Under FTC rules, all companies, regardless of size, must meet the same franchising regulations. A typical Toddlin' Time franchise earned $14,000 per year by enrolling 50 kids for six-week sessions. But the FTC still required Wallace to meet the same demanding auditing regulations that multi-billion corporations such as McDonalds have to meet. Just to become a licensed franchiser, Wallace was forced to spend $15,000 in auditing and legal fees. But the costs didn't stop there. The FTC requires franchise operators to submit expensive financial statements and auditing reports every year. Says Wallace, "We're not a big company. We can't afford the two or three thousand dollars each year to [prepare] FTC financial statements."
Because of the fees and regulations, Wallace put a halt to further expansion plans in 1996 after establishing 10 successful franchises. Although she has given up on franchising Toddlin' Time, Wallace has started a consulting practice to spread the idea.
Source: Sheila Moloney
IRS Wants $250,000 From Honest Health Care Business
Arlene Kaplan of Great Neck, New York owns Heart to Home, Inc., a company that provides trained nurses to patients requiring home health care. Kaplan employed her nurses as independent contractors which meant that they had to pay their own state, federal and social security taxes. She adopted this employment policy because that gave her nurses the ability to work anywhere from five to 60 hours per week while accommodating the needs of their families.
But in 1990, the Internal Revenue Service ordered Kaplan to pay $250,000 in back taxes and fines for allegedly misrepresenting her workers to the agency. Using an extremely complex 20-point litmus test, the IRS determined that the 70 Heart to Home nurses employed by Kaplan were not independent contractors. Sandra Abalos, a certified public accountant and tax expert, says the 20-point test is "so vague and subjective" that even tax lawyers can not determine who is an employee and who is an independent contractor.
When Kaplan asked an IRS agent why this was being done to her, the agent said the IRS wants "our taxes up front rather than waiting a whole year." As independent contractors, the nurses didn't pay taxes in their weekly paychecks but waited to pay at the end of the year in one lump sum payment. Apparently, the IRS considered that too inconvenient.
It took seven years before Kaplan's case was ready to go to court. Explaining why she vowed to fight the IRS for so long, Kaplan explained, "I don't own enough things in this entire world to pay off what they want from me." But she says by fighting them, "Maybe they will get off someone else's back in this business."
One week before her court date in May 1997, the government offered to settle the case if she would agree to pay $55,000 and stop employing nurses as independent contractors. Kaplan didn't want to settle because she knew she was innocent of any wrongdoing. But after paying more than $100,000 in legal costs, she didn't want to take a chance of losing her business and agreed to the settlement.
"I'm angry that I had to settle. But I didn't like living with a sword hanging over my head."
Source: Arlene Kaplan
Funeral Home Licensing Requirements Could Send Casket Stores to Mortuary
When Nathaniel Craigmiles opened his own funeral casket business in Chattanooga, Tennessee in March 1999, he believed he could attract significant business as he was selling caskets for $800 that funeral homes were selling for $3,200. But his business was bad business for the funeral home industry. Only four months after starting his company, the Tennessee Department of Commerce's Insurance's Funeral Board and Burial Services division, the regulatory arm of the state funeral home industry, shut down Craigmiles's casket store claiming that he had to be a licensed funeral director to sell caskets.
Funeral home directors must get a license that qualifies them to embalm and bury bodies. But Craigmiles doesn't see why he needs to go through the lengthy and expensive process of getting a license to embalm and bury bodies when all he wants to do is sell caskets.
Craigmiles is outraged by the requirement which he and other similarly-affected casket retailers view as nothing more than anti-competitive regulation. Immediately after opening, he began receiving threatening phone calls and notes from people he suspects were his competitors. "They said unless we shut down, something was going to happen."
Craigmiles is considering joining a lawsuit challenging the state licensing regulations as an unconstitutional restraint of competition. Craigmiles, who is also a Baptist preacher, vows to fight on. "This is our livelihood. This is a hardship for me."
Source: Nathaniel Craigmiles
Landlord Prevented from Collecting Rent from Affluent Tenants for 14 Years
For more than 14 years, New York City resident Marcy Ellin Boucher has been unable to collect rent from almost all of her 20 tenants because the tenants use government regulations to thwart rent collection. At the same time, many of her tenants legally sublet their apartments and make a big profit.
After buying the building for $325,000, Boucher discovered that the tenants had bankrupted two prior landlords by refusing to pay rent. Apparently, they intended to do the same to her. Under New York City's rent laws, tenants can inherit an apartment building if the landlord is unable to pay the taxes on the building and is unable to sell it. Boucher's tenants told her that they would not pay rent and thus force her to give up the building, which the city would then sell to them for a modest price of less than $250 per unit.
The tenants are not poor. They include a couple of restaurant owners, a certified public accountant, a lighting director and even an owner of a corporation. Although the tenants' incomes are as high as $70,000, they nonetheless refused to pay the very modest rents ranging from $116 to $300. To prevent Boucher from collecting rent, the tenants filed frivolous lawsuits, complaints and other actions. Boucher says it took two years just to get the keys to move into the building after she purchased it because of tenant-delaying tactics. Since moving in, she has been dragged into court to deal with a barrage of tenant complaints. For instance, tenants have falsely accused her of failing to provide heat or hot water. Although these complaints were found to be baseless, she is still subjected to daily inspections.
Boucher has been in litigation for three years in an attempt to force the tenants to pay rent. She has collected very little rent but has accrued legal bills of nearly $200,000.
Source: Property Rights Foundation
Product Preventing Sudden Infant Death Syndrome Kept Off Market; Manufacturer Has Trouble Complying with Rules of Defunct Board
In 1995, Dave Gordon, an enterprising businessman in Erie County, New York had a great idea. He planned to manufacture a special kind of pillow designed to help prevent Sudden Infant Death Syndrome (SIDS). He also planned to hire disabled workers to make the pillows.
So he was quite surprised when his seemingly simple application for a license to make pillows got bogged down in the New York State regulatory bureaucracy.
It seems that Gordon's plan to make infant-friendly pillows triggered an inspection to ensure compliance with State Bedding Board requirements. The bedding regulations are supposed to insure the safety and quality of pillows, mattresses and other bedding materials. But it was difficult for Gordon to show he was in compliance with the regulation as the state hadn't employed bedding inspectors in ten years, the Board hadn't met in recent memory, and there were apparently no standards upon which to measure compliance. Nevertheless, the license requirement and the fee remained intact.
So Gordon was in a perplexing situation. To make his pillows, the state required that he get a license for which there were no qualifications, enforced by inspectors that didn't exist and dispatched by a board that no longer met. As a result, production was stopped for two months and 100 disabled workers didn't collect paychecks.
"It was really stupid," says Gordon. "All I wanted to do was make a good product that could help save lives. About 6,000 infants die in the US each year of SIDS." Eventually, the state Governor's Office of Regulatory Reform intervened on Gordon's behalf and he was granted a license to open SlumberSafe Inc.
Source: New York Governor's Office of Regulatory Reform
Ohio Man Loses Home and Business After Allowing Employees to Play Golf
William Pierce lost everything. Once he owned an engineering consulting firm that employed 40 engineers, generated annual revenues of $1.7 million and had contracts with Fortune 500 Companies. Now he's lost his business, his $375,000 home and is more than $100,000 in debt. The reason: The U.S. Department of Labor (DOL) found him guilty of letting his employees take time off to play golf.
Back in 1988, Pierce adopted a policy allowing his employees to take a few hours off from work to play golf, go fishing or just run personal errands. If they did not make up the hours later in the two-week pay period or claim the hours as vacation time, Pierce simply deducted the time from their paychecks.
Then in October 1988, a DOL attorney informed Pierce that his flextime policy violated federal labor regulations and that he owed back pay and fines. Pierce had no way of knowing he was violating a labor regulation because the DOL had not yet informed employers that flextime was illegal. DOL said that deducting money from salaried workers' paychecks for taking time off was equivalent to treating them like hourly workers. DOL calculated that the illegal deductions amounted to $3,100. The DOL sued him in 1989 for willfully violating the Fair Labor Standards Act and ordered him to pay $50,000 in fines. He offered to settle the case by simply repaying his employees the $3,100 but DOL insisted on full payment. In March 1992, a U.S. Magistrate Judge ruled that Pierce only owed the $3,100. But by this time, Pierce didn't have enough money for the back pay. In fighting the DOL, Pierce had accumulated thousands of dollars in legal bills and his business had fallen apart because he had to spend most of his time fighting the government.
Pierce is continuing to file appeals. "I'm enough of a Don Quixote to believe I'm going to beat that windmill," he says. "If you just roll over dead, you just encourage the government to keep running over people."
Source: William Pierce
Family Forced to Sell Farm Because of Excessive Labor Regulations
In 1999, Paul Benton and Martha Daughdrill were forced to shut down their Maryland farm because they couldn't comply with expensive state labor law regulations governing migrant workers, even though there were never any complaints about living conditions.
Each year, the couple hired about six to eight persons, mainly college students looking for summer work, to live on the 86-acre farm and harvest their crops. The part-time laborers said they liked working for Benton and Daughdrill. One woman said she enjoyed the experience so much that it convinced her to start her own farm. Likewise, Linda Leichliter, a migrant-camp inspector in southern Maryland, says she had never received any complaints about mistreatment of workers.
But under Maryland law, any time a farm provides overnight housing to workers, it is considered a migrant-labor camp and subject to numerous regulations. Typically, migrant-labor camps involve crew leaders who transport laborers to the camp and oversee their work. There were no crew leaders at the Benton-Daughdrill farm. The couple initially tried to comply with the labor regulations, spending thousands of dollars installing portable toilets, pulling up poison ivy and leveling the floors to make them easier to clean. With those changes, the couple was able to keep their workers employed and harvest the 1998 crop.
But for 1999 they were going to have to spend another $25,000 to $30,000 to be in full compliance with the regulations. The couple gave up and decided to sell the farm. They didn't so much mind the expense of meeting the regulations, although they thought it was a bit ridiculous that they were cited for screen doors that didn't fit tightly and ceilings that were one inch short of code. They mostly objected to the requirement that they invade the privacy of their workers to make unannounced staff inspections.
"It's the way the [regulations] were written - they're so paternalistic and intrusive," says Daughrill. "We want to treat them as adults."
Although the couple considered fighting the regulations, they decided it wasn't worth the effort. Benton says, "The regulations are written so broadly, we didn't know if we could convince anybody of anything."
Source: Washington Times
Civil Asset Forfeiture
Governments Seizes Ranch of Property Owners Wrongly Accused of Criminal Activity
In September 1988, the federal government seized a 4,346-acre ranch owned by the Jones family in Glades County, Florida for allegedly allowing their property to be used as an aircraft-landing site by cocaine smugglers. The Joneses were innocent of any wrongdoing but were still deprived of the use of their land for six years.
The controversy started when a twin-engine plane crashed in early 1986 on land a quarter of a mile from the Jones ranch. The plane's occupants were killed and no drugs were found in the wreckage. But law enforcement authorities believed the plane was heading to the Jones ranch and seized their property even though neither member of the Jones family or the Joneses' employees were charged with a crime. Under current civil forfeiture laws, the federal government can seize the assets of suspects without a hearing, a trial or even an arrest. The government can often keep the assets of suspects even after they are found innocent or their cases are dropped without an arrest.
Because the government would not return the ranch, the Jones family went to court but it took five years before their case finally went to trial. In May 1994, U.S. District Judge William Hoeveler found for the Joneses, ruling that "fundamental rights of ownership and the loss of those rights" were at the core of this case.
"In the understandable zeal to enforce the criminal laws constant vigilance must be exercised to protect the rights of all - especially those who may be caught up in a net loosely thrown around those who are guilty," noted Judge Hoeveler. He ruled, [It was] "questionable whether this forfeiture action ever really had a valid basis."
While the Joneses were awarded attorneys fees and costs, they were not compensated for the considerable damage to their property. For the six years the government held the ranch, the Joneses were prevented from maintaining the property. Current law does not allow the Joneses to sue the government for damage to their land.
Source: Office of U.S. Rep. Charles Canady
Federal Marshals Unjustly Seize $300,000 Home from Rightful Owners
In June 1990, Susan Davis, a certified public accountant in Fort Lauderdale, Florida, was named the personal representative for the estate of George Gerhardt who had died of cancer that year. That estate included a $300,000 home.
In September, Gerhardt's heir called Davis to inform her that U.S. Federal Marshals had seized the house. An amazed Davis asked officials the reason for the seizure and was told that a "confidential informant" who was in prison claimed that George Gerhardt told him that in 1988 drug dealers paid Gerhardt $10,000 to unload drugs on his property.
It took nearly three years before the case went to court. During this time, the government kept control of the property and rented it. Leading up to the trial, the government refused reasonable requests to provide basic information it claimed justified the seizure until the court threatened sanctions for withholding information. When the case finally went to trial, it only took one day for U.S. District Judge James Paine to rule against the government's seizure. Apparently, an acquaintance of Gerhardt used his property to smuggle drugs when Gerhardt was out of the country on vacation. Every witness listed by the government stated that Gerhardt had no knowledge of the incident.
Davis said the legal fight to return the Gerhardt house to its rightful owner ended up costing more than $40,000. But that still wasn't the end of the matter. The person to whom the government rented the house refused to leave. Davis and the Gerhardt heir had to hire yet another attorney to evict the recalcitrant tenant.
"It does not seem right to me that the government should have the right to confiscate an innocent person's property based on nothing more than the hearsay claim of some unnamed person in prison on criminal charges," says Davis.
Source: Testimony of Susan Davis before U.S. House of Representatives Judiciary Committee, June 11, 1997
Innocent Man Loses Business and Home for Unknowingly Transporting Drug Trafficker
For 13 years, Billy Munnerlynn and his wife operated an air charter service in Las Vegas, Nevada. The couple had never committed any crime in their lives. Indeed, they were both recognized for performing extensive charity work in the Las Vegas area using their planes to assist charity groups on various missions.
Then one day Munnerlynn unknowingly transported a convicted cocaine dealer transporting a large sum of cash. Even though Munnerlynn knew nothing about his client's illegal activities and was never charged with a crime, the federal government seized his $500,000 jet, closing his once thriving business.
During the years he operated his charter service, Munnerlynn flew a wide variety of clients, including movie stars, gamblers from foreign countries and even U.S. Marshals transporting terrorists to prison. So there was nothing unusual when a client named Albert Wright chartered a seemingly routine flight from Little Rock, Arkansas to Ontario, California. But soon after the plane arrived in California, U.S. Drug Enforcement Administration (DEA) agents arrested Munnerlynn and his passenger, who was carrying $2.7 million in his luggage. It turns out that the DEA had been pursuing Wright for several weeks because he was a narcotics trafficker. Although he knew nothing about Wright's criminal activities, Munnerlynn was charged with violating the RICO law and thrown in jail for more than seven hours.
The criminal charges against Munnerlynn were eventually dropped but he still had to file a civil lawsuit to force the government to return his Lear jet. After a two-and-a-half year legal battle, which cost Munnerlynn most of his life savings, the government returned the jet - but in such a state of disrepair that it would require $140,000 to fix.
But that wasn't the end of his problems. The DEA had put Munnerlynn on a list of possible drug runners and money launderers which prevented him from finding supplemental work flying for air transport companies. He was forced to file bankruptcy and lost both his business and his home. He is now working as truck driver to earn a living.
Source: Office of Rep. Henry Hyde
African-American Businessman Nearly Loses Business for Paying for Airline Ticket in Cash
Willie Jones, the African-American owner of a Nashville landscaping business, thought he was making a routine purchase when he bought an airline ticket at the Nashville airport on February 27, 1991. Little did he know this purchase would lead to a two-year legal nightmare with the federal government that nearly cost him his business.
Jones paid cash for the ticket to Houston, where he planned to purchase plants and shrubbery for his business. But by paying in cash, Jones immediately aroused suspicions that he was a drug dealer. Carrying large amounts of cash and being an African-American apparently fits the U.S. Drug Enforcement Agency's (DEA) profile of such a criminal.
The ticket agent alerted the Nashville police who detained Jones and proceeded to search his luggage. The search yielded no drugs but police were suspicious of the $9,600 he had in his wallet. Jones insisted that the money was for buying plants for his business. But after a sniffing police dog detected trace amounts of drugs on the cash, the police seized Jones's money.
The seizure nearly drove Jones out of business. Although he was never charged with a crime, the DEA would not return his money unless he posted a $960 bond which he could not afford. Jones sued the DEA for discrimination based on race. In April 1993, a federal judge ordered the government to return Jones's $9,600, ruling that trace amounts of drugs on currency is so common that it can hardly be used as an excuse to seize someone's money. It turns out that 97% of all U.S. currency has a chemical condition that could falsely indicate a trace amount of drugs.
Source: Statement of Rep. Henry Hyde before the U.S. House of Representatives Judiciary Committee, July 22, 1996
Federal Agents Destroy Innocent Man's Boat in Drug Search
On April 9, 1989, U.S. Customs Services agents boarded a sailboat purchased by Craig Klein, a university professor in Jacksonville, Florida. Their objective was to conduct a search for illegal drugs. Federal agents wielding axes, power drills and crowbars nearly destroyed Klein's $24,000 boat in a fruitless attempt to find drugs. They dismantled the engine, ruptured the fuel tank, and drilled more than 30 holes in the hull - half below the waterline.
Although innocent of any wrongdoing, the Customs Services refused to compensate Klein for wrecking his new boat and he was forced to sell it for scrap. It was only after the incident came to the attention of some U.S. Congressmen that the Customs Service finally felt compelled to pay Klein $9,100 - still only one-third of the boat's total value.
Source: Statement of Rep. Henry Hyde before U.S. House of Representatives Judiciary Committee, July 22, 1996
Act of Kindness Results in Criminal Charges, Loss of Savings
Dr. Richard Lowe is a 72-year-old family physician in the small Alabama town of Haleyville. He is a highly-regarded member of the community who provides free medical services to the poor and charges his paying customers only $5 for a routine office visit. He even donated nearly a million dollars to a local private school to keep it from closing when it experienced financial difficulties.
It was this act of charity that led federal prosecutors to seize Lowe's entire life savings of $2.5 million. The reason? Government officials mistakenly believed that he was engaged in a criminal effort to hide ill-gotten gains from the government.
Lowe's story began in 1988 when he and his friend, Joseph Lett, president of First Bank in nearby Roanoke, established the Chambers County Educational Fund (CCEF). Lowe deposited his life savings of $2.5 million in the CCEF account and directed that all the interest go to the Chambers Academy, a private kindergarten through twelfth grade school that was on the verge of bankruptcy. The interest plus another $456,000 contribution from Lowe, totaling more than $908,000, enabled the school to retire its debt and keep its doors open.
In late 1990, Lowe decided to deposit more than $315,000 in the CCEF account. Lett then went to several area banks purchasing cashier checks with Lowe's money and crediting the checks to the CCEF account.
Some banks thought Lett's transactions were unusual and reported it to federal authorities. The FBI and the U.S. attorney claimed that the bank and Lowe were attempting to "structure" the deposits in such a way to avoid financial reporting requirements mandated by the government. In June 1991, the government seized not only the $315,000 deposited but also Lowe's entire CCEF account of $2.5 million. A few months later, Lett and his son were indicted for failing to follow currency-reporting laws. Lowe was indicted on the same charge two years later.
But Lowe's lawyer discovered that there was nothing illegal in Lett's financial transaction, which were simply aimed at transferring money into the education charity fund. In 1994, the government dismissed the case against Lowe. Even though Lowe was exonerated of any wrongdoing, he had to fight the government for another two years just to get his money back.
While the story did end in a victory, the five-year struggle caused so much anguish for the doctor that at one point he had to be hospitalized for stress.
Source: Testimony of E.E. Edwards before the U.S. House of Representatives Judiciary Committee, June 11, 1997
Americans with Disabilities
ADA Regulations Impose Glass Ceiling
All Debbie Shaffer wanted to do was find a new location for her rapidly growing interior design firm. But after coming face-to-face with the unreasonable demands of the Americans with Disabilities Act (ADA), she abandoned her plans, costing her an estimated 50% increase in new business.
Shaffer had been operating DGS Interiors from her home in Walla Walla, Washington for eight years when she decided in 1995 that it was time to find a choice downtown location. She located a 1,500 square-foot space consisting of a main floor for retail sales and a raised mezzanine that could serve as both an office and a design studio.
But when contractors informed Shaffer of the extensive renovations she would have to make to meet ADA regulations, she realized that this seemingly simple plan would not be so simple - or inexpensive. The problem was with the mezzanine which was not handicapped-accessible. Shaffer says that would not have posed any problem because all she had to do was simply come downstairs to show prospective disabled clients her decorating samples.
But according to ADA regulations, this would constitute special treatment that unfairly discriminated against the handicapped. To bring her prospective office up to code, Shaffer would have had to spend an additional $150,000 to install an elevator, widen the building entrances and doorways, and build handicapped bathrooms. Shaffer had no choice but to abandon her expansion plans.
"I couldn't afford it." She estimates that the downtown location could have generated a 50% increase in business but the ADA regulations were just "too overwhelming."
Says Shaffer, "I have a great amount of support for people with any kind of disability, having grown up with a deaf sister. But the government takes it too far."
Source: Debbie Shaffer
Motel Owners Sued For ADA Violations After Installing Handicapped-Accessible Rooms
When Karla and Richard Hauk of Wall, South Dakota converted two of their rooms at their newly-opened Days Inn into handicapped-accessible rooms, they thought they were doing the right thing to help the disabled. But their act of kindness only generated a U.S. Justice Department lawsuit alleging violations of the Americans with Disabilities Act (ADA) that almost drove the couple out of business.
When the Hauks opened their motel in July 1993, their motel was the first one in Wall to provide handicapped-accessible rooms. But instead of praising the Hauks for their voluntary efforts on behalf of the disabled, the U.S. Justice Department claimed the couple should be sued because they didn't make their rooms handicapped-accessible enough. Specifically, the government argued that because the Hauks had converted their two-story motel into a three-story motel when they installed a whirlpool in the basement, ADA regulations required that they also spend another $100,000 on an elevator so the handicapped could reach every floor.
In addition, the government ordered the Hauks to spend even more money widening the bathroom doors in the non-handicapped rooms. According to the government, "If someone uses a wheelchair [to visit] another guest in a non-accessible guest room, he or she will not be able even to enter the bathroom in that room."
The couple was nearly driven out of business by the government's lawsuit. Besides the renovation costs, the Hauks were also threatened with $50,000 in fines. As the motel could earn only $20,000 to $25,000 a year, there was no way they could have fought the suit in court. Eventually, the Hauks settled with the government by agreeing to make $30-$50,000 worth of changes to driveways and sidewalks. Says their lawyer, Kim Ruckdaschel-Haley, "Karla and Richard in good faith thought they were doing everything they could."
Source: Karla Hauk
County May Require Homeowner to Pay $30,000 for Access to Her Own Land
For more than 20 years, Vicki Beres and her family have lived on a scenic lakefront property in Sammamish, Washington. But their once quiet and tranquil lifestyle will soon be lost because the county government is building a public bike and horse trail across their property that will be used by thousands of people per day. The county has not only refused to compensate them for taking their land, but wants to charge the Bereses as much as $30,000 just to have the right to cross the trail to get to their boat dock.
This regulatory taking can be traced to an abandoned 113-year-old railroad that runs through the properties of Beres and 425 other homeowners who live along the eastern shore of Lake Sammamish. When the railroad was constructed in 1886, private property owners were required to give part of their land as an easement to the company. But the land was still considered to belong to the property owners. Under federal law, when a railroad is abandoned, the land should have automatically reverted to the current owner.
But after Burlington Northern Railroad stopped using the line in 1996, instead of returning the land to the residents, the company sold it to a local land conservancy group which then sold it to King County a few years later. The county immediately began building a 16-foot-wide trail that cuts through the yards of the homeowners. The trail will include a bike path, a jogging path and even a horse trail that will be used by up to 5,000 people per day. Residents are very upset about the trail because it will force them to dodge thousands of bicyclists and horses while trying to use their driveways and reach their boats. Beres says the railroad was far more preferable as it was only used by a slow-moving freight train once or twice a week.
Beres is even more upset that the county wants to charge each resident thousands of dollars in special permit fees just to be able to use their driveways and footbridges that pass through the trail. In the Beres' case, they could possibly have to pay the county as much as $30,000 for a five-year permit.
Beres and her neighbors have been forced to spend close to $2 million on lawsuits in an attempt to stop the county from building the trail.
Source: Vicki Beres
Public Trail Makes Farm Family Prisoners of Land
When the Missouri, Kansas, Texas (MKT) railroad announced in 1986 that it would abandon the railroad cutting through the middle of Jayne and Maurice Glosemeyer's 240-acre farm, Jayne Glosemeyer says they were pleased because they knew the railroad easement was supposed to revert back to them. After all, it is their land. When the MKT signed an agreement with Maurice Glosemeyer's great uncle in 1889 to build a line through his land, it was on the understanding that the easement could only be used for a railroad. Once the company stopped using the line, the land would revert back to the family.
That is why the Glosemeyers were surprised to learn from their local newspaper that the Missouri Department of Natural Resources intended to build a public trail along the abandoned railroad. Glosemeyer said they had been looking forward to getting the easement because they would be able to graze their hogs and cattle near water that the railroad line had traversed. What the Glosemeyers didn't know was that a congressional bill passed in 1983 allows railroad companies to sell abandoned land to whomever they want, despite the original agreements that promised the land to the property owners.
The trail, which is 100 feet wide, poses significant risks to the Glosmeyers' farm. Although they mean no harm, hikers frequently play with or bother the Glosemeyers' animals, which raises serious liability issues for the family. Glosemeyer says that one day she saw a little girl chasing a piglet while her mother watched with approval.
"My heart dropped," she said. "If that little girl caught that piglet, the sow would have attacked her. Incidents like this happened often and we could easily have been sued."
As a result of these problems, the Glosemeyers were forced to pay $5,000 to graze their hogs on another farm. The situation is so bad that the Glosemeyers believe they can not leave their farm, even for a weekend, because they have to keep an eye on people constantly roving across their land.
The Glosemeyers and more than 1,000 other landowners filed a lawsuit to stop the DNR's planned trail.
Source: Jayne Glosemeyer
Vermont Man Spends 18 Years Fighting for Right to Property and Just Compensation
Since 1981, Burlington, Vermont resident Paul Presault has been waging a costly court battle to get the city of Burlington to compensate him for taking his backyard for a bicycle trail.
When Presault moved into his house in 1975, there was a railroad track about 60 feet from the home. Right after he moved in, the railroad company pulled up the tracks and formally abandoned the line. Under the terms of an 1899 agreement, the land was supposed to be returned to the original owners or successors after the railroad left.
But the City of Burlington decided it wanted the land for a public bicycle and pedestrian trail. This would take it right through Presault's yard. Presault filed a lawsuit in 1981 to defend his title to the land. After the Vermont Supreme Court ruled against Presault in 1983, he took his case to the federal courts. In the meantime, the bike trail, which was built in 1986, was proving to be a great annoyance to the Presault family.
"The trail is only 60 feet from my house. It's used constantly by bicyclists, pedestrians and roller bladers." Besides concerns about vandalism and crime with a heavily-used trail so close to his house, Presault says people always use his driveway, which is not part of the trail, because it is easy for riders to access a nearby city street. "But when I stop bicyclists to tell them to get off my driveway, they get mad and refuse to listen."
In 1990, the U.S. Supreme Court heard Presault's case which ruled that the city could in fact build the trail on the abandoned railroad line because a 1983 federal law permitted it. But it also ruled Presault could go back to court to get compensation for the city's taking of his property. Years of more litigation ensued. Finally, in 1996 the U.S. Court of Appeals for the Federal Circuit ruled that Presault owned the land when the city built the trail and the city owed him compensation.
But Presault is still fighting in the courts to determine the amount of money he is owed. Asked how much he has spent on the years of litigation, a clearly dejected Presault says, "I don't know and I don't want to know how much I have spent on this case."
Source: Paul Presault
FCC Shutdown of Popular Radio Station Draws Protests
For 13 years, Willie Brown's WLUV 90.9 radio station was popular with the citizens of Homestead, Florida. The station's mixture of gospel music and community announcements provided the predominantly elderly listeners a welcome alternative to the limited variety of stations broadcasting in that part of south Florida. But in July 1998, the Federal Communications Commission (FCC) shut down WLUV because the owner did not have a license even though he had repeatedly tried to secure one.
A 63-year-old African-American activist, popularly known as "Brother Brown," Willie Brown has been a fixture in Homestead for many years. On two different occasions, Dade County declared Willie Brown Days to honor his many achievements. He was honored on the floor of the U.S. House of Representatives and even had his photograph taken with First Lady Hillary Clinton.
But none of that matters to the FCC. Established radio broadcasters oppose the licensing of low-power radio stations like Brown's. Although the FCC Chairman, William Kennard, initially publicly supported licensing low-power stations, the FCC has adhered to the long-established policy of strictly regulating the entry of new stations.
In a series of raids, 13 South Florida radio stations, including Willie Brown's, were shut down for good. His loyal listeners were quite angry about the closure. Brown's listeners were mainly elderly, religious residents who spent a lot of time at home. The operator of a local rest home says the residents of the home were so glued to the station that they refused to take their baths lest they miss something important.
Over the 13-year period, Brown applied three times for a license and was refused each time even though his station was not infringing on the signals of other area radio stations. Most Miami-area stations do not even broadcast to Homestead. The Homestead and the neighboring Florida City governments approved resolutions asking the FCC to keep "Brother Brown" on the air. But the FCC was apparently unmoved.
Source: Reason Magazine
Farmer Sued By FCC For Broadcasting Radio Signal on Farm
South Dakota farmer Roy Neset wasn't satisfied with the one radio station serving the remote northwestern area of the state where he lives. It was an AM station that plays only country music, but Neset wanted to listen to talk radio while he cultivated his fields. Unsuccessful in persuading the radio station manager to heed his requests, he obtained a low-power radio transmitter. A Colorado station then gave him written permission to re-transmit its signal over a five-mile radius - mainly his farm. Besides himself, few other people tuned into Neset's humble one-watt FM station.
But the manager of the local station did not approve of Neset's efforts to keep himself informed of current events and complained to the Federal Communications Commission (FCC). The FCC determined that Neset was operating without a license and sued him even though FCC officials admitted that Neset wasn't interfering with other radio stations.
Until 1980, the FCC allowed small broadcasters of 10-watts or less to be licensed. The federally-funded Corporation For Public Broadcasting persuaded the FCC to stop issuing such licenses, claiming that small broadcasters would clutter the lower end of the radio spectrum and take away potential listeners from public radio.
Neset is fighting the FCC, arguing in court that the agency's prohibition on micro-radio broadcasting violates his First Amendment rights to free speech.
Source: Institute For Justice
Think You're Innocent Until Proven Guilty? Think Again.
That's what it says in civics textbooks. But in the real world, sometimes government officials treat you as guilty even when you're innocent.
The case of Charles Hurwitz of Texas provides a good example.
The federal government wanted valuable land owned by Hurwitz's company. Hurwitz was willing to sell, but as the land carried a high fair-market value, it was expensive. Rather than buy the land in an honest transaction, the government sued Hurwitz's business over an unrelated regulatory matter under the jurisdiction of the U.S. Federal Deposit Insurance Corporation (FDIC). The matter involved a Texas savings and loan that failed in the 1980s. Hurwitz and his company were minority investors in a holding company that owned the savings and loan, and had lost their investments as a result of the failure. The FDIC decided that if it blamed Hurwitz for the savings and loan's failure, it might convince Hurwitz to surrender the land. Essentially, the government said: Give us the land; we'll settle the suit.
Internal documents show that the land-confiscation scheme had the approval of White House officials. On March 21, 1995, then-White House Chief of Staff Leon Panetta wrote a letter endorsing the scheme, saying, "Budgetary constraints have made it impractical to acquire such an expensive tract of land through outright federal purchase."
After a federal judge forced the FDIC to make internal documents public, it also became clear that the FDIC knew perfectly well it had little chance of proving guilt in its suit against Hurwitz. Although FDIC policy prohibits the agency from pursuing cases unless it is "more than likely to succeed," in its zeal to acquire the land, the FDIC ignored its own policies and proceeded with a suit it knew lacked merit.
Hurwitz refused to be blackmailed, but cooperated fully with investigators and eventually sold the government the land for a price lower than its value.
But the banking agencies were not grateful. Instead, the FDIC continued its case against him in a federal court, where the government is unlikely to win. It also opened a "second front" through an internal government Office of Thrift Supervision regulatory hearing, where Hurwitz's rights are limited and where his guilt will be determined by administrators paid by the prosecutors.
The proceedings in this chamber are so greatly in the government's favor that one of the administrative judges has never once ruled against the government. Reportedly, the government hopes to force Hurwitz to give them additional land. A federal district judge called the case a "manipulation of the legal process."
So far, Hurwitz and his companies have spent over $20 million in this case and taxpayer expenditures are similar.
Source: The National Center For Public Policy Research National Policy Analysis #267
Missouri Banker Persecuted by FDIC Based on False Charges from Competitor
The story of small-town Missouri banker Glen Garrett is alarming to those who believe that Americans who are innocent of any crime have the right not to be hounded by their government.
Garrett was the subject of an anonymous and false accusation of dishonesty against him made to state bank examiners, who passed them on to the U.S. Federal Deposit Insurance Corporation (FDIC). Garrett was charged with allowing his bank to make a loan to an individual who owed Garrett money. However, the individual had repaid the bank loan in a timely manner, and had not used any part of the bank loan to repay the money he owed to Garrett. It was later shown that the charges were made by one of Garrett's business competitors.
The FDIC began an exhaustive investigation that would eventually take almost a decade to resolve. Despite finding insufficient evidence of wrongdoing, the FDIC was undeterred. Worse, an FDIC senior management official said, "Glen Garrett should be castrated," a crude metaphor demonstrating extreme agency bias against Garrett. Despite the paucity of evidence, the FDIC wanted to impose the most severe penalties possible upon him.
Rather than find proof of wrongdoing, however, the FDIC racked up an impressive record of wrongdoing of its own: 1) An FDIC official asked an officer of Garrett's bank to lie about the investigation. When the officer refused and the bank complained to the FDIC, no action was taken. 2) A government official gave another banker false derogatory information about Garrett's personal confidential financial affairs, which violated the law. Again, no action was taken. 3) The FDIC attempted to incite a U.S. Attorney to indict Garrett by sending the U.S. Attorney a referral which contained numerous false allegations which the FDIC labeled as "facts." The FDIC now concedes they were false. 4) Garrett subpoenaed two FDIC officials to testify. To subvert Garrett's rights in court, the FDIC threatened their own employees with criminal prosecution if they testified.
In the end, after Garrett was forced to spend almost $2 million to defend himself against the false FDIC allegations, the FDIC decided to withdraw and dismiss (with extreme prejudice, which means they can never resurrect the charges) all charges against Garrett, thus totally vindicating him. But even here, the FDIC required one last tribute from Garrett: he had to pledge not to sue the FDIC for wrongful prosecution.
Source: The National Center For Public Policy Research National Policy Analysis #267
Special thanks to Dr. Bonner Cohen who assisted in the editing of this third edition of The National Directory of Environmental and Regulatory Victims.
Thanks also to the following organizations and individuals who provided valuable assistance in identifying victims for inclusion in the Directory: American Center for Law and Justice, Michael Berger, Office of U.S. Representative Charles Canady, Office of U.S. Representative Helen Chenoweth-Hage, Diana Clay, Competitive Enterprise Institute, Defenders of Property Rights, Florida Legal Foundation, Free Congress Research and Education Foundation, Grant Gerber, Goldwater Institute, Heartland Institute, Home School Legal Defense Association, Office of U.S. Representative Henry Hyde, Institute For Justice, James Knott, Dr. David Lewis, George Milliken, New York Governor's Office of Regulatory Reform, Oregonians In Action, Pacific Legal Foundation, Property Rights Foundation, Reason Foundation, David Smolker, Southeastern Legal Foundation, David Thompson, U.S. Border Patrol, U.S. House of Representatives Judiciary Committee and Washington Farm Bureau.
To download the 1998 edition of our National Directory of Environmental and Regulatory Victims, click