Last month, Paul Alfano attended the William and Mary Law School’s 16th annual Property Rights Conference in Williamsburg, VA.
Some of the top property professors in the country participated in panel discussions, including Stephen J. Early, winner of this year’s Brigham-Kanner Property Rights Prize, and prior winners of the prize, Professor James W. Ely, Jr., Professor Stewart E. Sterk, Professor David L. Callies, and Professor Thomas W. Merrill.
Virtually all of the topics discussed at the conference involved issues currently being handled by Alfano Law Office, including the following:
Equity Theft. This colorful, yet apt, term describes what happens when a municipality takes title to real estate for delinquent taxes, sells the property for more than the amount owed, and keeps the profit. Alfano Law has a case pending before the New Hampshire Supreme Court on this very issue, Polonsky v. Town of Bedford. New Hampshire municipalities are not alone in taking more than they should from taxpayers. Per the Pacific Legal Foundation (present in force at the Property Rights Conference), one municipality in Michigan raises twenty percent (20%) of its revenue using this abhorrent technique.
Regulatory Takings. A regulatory taking of private property occurs when a municipality enacts an ordinance, or series of ordinances, so restrictive as to amount to a taking of property without paying damages, as required by the Federal and New Hampshire Constitutions. (New Hampshire’s Constitution actually does not expressly require the payment of damages, but early court decisions established that obligation.)
Panelists discussed national trends in regulatory takings, the dominant ones being environmental laws and statutes attempting to create affordable housing. The question is not so much whether the government has a role in addressing these issues, but whether a small minority of people, such as real estate developers, should bear the cost rather than the entire public.
Alfano Law has cases pending against municipal land use boards for arbitrary, improper and overreaching attempts to restrict the development of private property.
Unconstitutional Conditions. If a zoning ordinance permits a developer to build thirty housing units, and the planning board approves the plan provided the developer also builds three low-income units, would the condition constitute a taking of private property? Is the cost of providing the public benefit of affordable housing being placed on one person? Alfano Law has one such case pending in superior court, although with different facts.
These are just three ways in which municipalities can take property from individuals. Others include eminent domain and excess real estate taxation.