By Jeff Wright, President, CAPR Legal Fund

July 27, 2019

Citizens’ Alliance for Property Rights supporters are well aware that we are living in a political environment that is unfriendly to property rights, especially in Washington and California.  Examples of this run the gamut from politicians and groups who don’t care for our constitutional rights to new layers of regulations which, even if well intentioned merely exacerbate the problem.  Think the homelessness problem for instance.  With so many “opportunities” to fight for property rights, CAPR Legal Fund continually looks for ways to stretch your support dollars.  One of the ways we do that is by collaboration with like-minded organizations.

The mandates of the Legal Fund are educational outreach and litigation in favor of property rights.  We always look to benefit the most property owners as possible when we take action with these activities.  Litigation of course can eat up funds quicker than a government program.  Partnering with others has helped multiply our efforts.  One of CAPR’s longest collaborations has been with Pacific Legal Foundation (PLF).  For those who are unaware, PLF is a public interest law firm which litigates in favor of individual constitutional rights, especially property rights.  Very successfully we might add.  PLF first represented CAPR in 2005 with the filing of CAPR v. Sims which challenged land-use policies just enacted in King Co., Washington that would have severely restricted the use of rural properties (only).  That case was won decisively at the state appeals court.

While CAPR has continually sung praises for PLF’s property rights work, our more substantial support has come in the form of amicus curiae (“friend of the court”) briefs supporting cases that PLF had and currently has before the Supreme Court.  Briefs and past written filings are by far the most important part of appeals filings, both at the state and federal levels.  Oral arguments including those before the Supreme Court usually have little bearing on its decisions.  This point was obvious during oral arguments before the Washington appeals court for CAPR v. Sims.  That panel of judges spent almost the entire session chewing up King County’s case, only asking questions it seemed to accentuate the reasons for the beating being administered.

The Legal Fund is proud to note that it provided an amicus brief in support of Pacific Legal Foundation’s June, 2019 favorable ruling in the Supreme Court with its challenge of a state ruling in Knick v. Township of Scott.  While on the face of it this was a type of eminent domain case it was really about over-ruling a previous bad decision by the Court.  With the 1985 ruling in Williamson County Regional Planning Commission v. Hamilton Bank the Court had set up a situation which made it extremely difficult to get a property rights case heard in federal court where the plaintiff’s constitutional arguments, especially their right to due process could be heard.  Under “Williamson” only those with deep pockets and exceptional fortitude could see their case through to a proper conclusion.  With this decision Ms. Rose Knick will get her real day in court without exhausting her bank account.  Future plaintiffs will still have to go through the process to prove their claims (or not).  However, “Knick” should send a message to local and state jurisdictions that the days when they could keep a plaintiff “running around” until they dropped are behind us.

In “new business” the Legal Fund has sent an amicus brief to the Supreme Court in support of PLF’s petition asking the Court to review the California ruling in Cherk v. County of Marin.  “Cherk” is an “exactions” case where a permit applicant must pay a fee for something unrelated to his permit in order to get the permit, a practice which has become increasingly common around the country.  In this instance Cherk was required to pay $35,000 into a Marin Co. “inclusionary housing fund” in order to get a permit for a relatively small building.  Put bluntly, this is a form of extortion.  CAPR is supplying this brief in collaboration with the National Association of Homebuilders and the California Building Industry Association.

Some might ask why the Legal Fund would spend the money on a brief before the Supreme Court has accepted the case.  The answer is easy.  Once the Court has accepted a case, PLF has a stellar track record of “wins”.  The trick is getting cases accepted.  After all, Pacific Legal’s landmark victories in Nollan and Dolan were instrumental in our victory in CAPR v. Sims eleven years ago.

If you are a Legal Fund supporter you have helped with the “Knick” win and we thank you.  Let’s keep it up!




July 27, 2019