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America's Most Important Property Rights Legislation

America's Most Important Property Rights Legislation

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By Mark J. Fitzgibbons

Citizens often concede to these abuses,
and part little by little -- or a whole lot,
literally and figuratively -- with their rights. The U.S. Supreme Court recently
called some local abuses of zoning or land use laws "extortive."
Local governments have vast opportunity to violate rights on private property
because they exercise zoning power through land use laws.
Predatory local bureaucrats and anti-property rights crusaders masquerading as
environmental groups figured out that it is easy to override property rights at the
local government level. In Willie Sutton terms, that's where the control is.
By Mark J. Fitzgibbons

Citizens often concede to these abuses,
and part little by little -- or a whole lot,
literally and figuratively -- with their rights. The U.S. Supreme Court recently
called some local abuses of zoning or land use laws "extortive."
Local governments have vast opportunity to violate rights on private property
because they exercise zoning power through land use laws.
Predatory local bureaucrats and anti-property rights crusaders masquerading as
environmental groups figured out that it is easy to override property rights at the
local government level. In Willie Sutton terms, that's where the control is.

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Published by: Lisa Stinocher OHanlon on Feb 08, 2014
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2/8/2014 Articles: America's Most Important Property Rights Legislationhttp://www.americanthinker.com/2014/01/americas_most_important_property_rights_legislation.html 1/5
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American Thinker has covered the saga of Virginia farmer Martha Boneta, who was cited in 2012 by Fauquier County government and threatened with $5,000  per -day fines for hosting a private birthday party for eight 10-year-old girlswithout a permit, and advertising pumpkin carvings -- even though she had a business license.Boneta's tiny farm store where she sold organic vegetables, beeswax candles andfibers from her over-100 rescued animals was shut down as she took a principledcourse of action to fight the county.Every day local governments across thecountry abuse zoning laws to bullycitizens and violate roert and other 
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, constitutionally protected rights. Mostof these abuses are never known by thegeneral public because citizens lack theresources to challenge these violations,or fear fighting back because of thewell-known propensity of governmentto retaliate.Citizens often concede to these abuses,and part little by little -- or a whole lot,literally and figuratively -- with their rights. The U.S. Supreme Court recentlycalled some local abuses of zoning or land use laws "extortive."Local governments have vast opportunity to violate rights on private property because they exercise zoning power through land use laws.Predatory local bureaucrats and anti-property rights crusaders masquerading asenvironmental groups figured out that it is easy to override property rights at thelocal government level. In Willie Sutton terms, that's where the control is.The National Association of Counties, for example, works more and more withthe Obama administration to implement by executive order  intrusive climate change and other invasive regulation at the local and national levels.Into this issue of local government abuses of property rights has stepped DelegateBob Marshall, well-known as perhaps the most principled constitutionalconservative in the Virginia legislature. Marshall has introduced HB 1219, alandmark remedies bill that relies on old and recent precedent to hold abusivegovernment in check.The essence of HB 1219 is that it makes local government and even governmentofficials subject to consequences for their abuses of rights, but in no wayimpedes proper uses of zoning authority.Under the bill, citizens who sue when localities violate constitutional rights throughzoning abuses can be awarded damages including attorney fees. Localgovernments that intentionally violate rights face stiffer penalties. Local officials
 
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who intentionally violate this law are subject to liability.Federal precedent includes the law codified at 42 U.S.C. 1983 and 1988, wherecitizens can sue for damages and attorney fees when state actors violateconstitutional rights "under color of state law," meaning under the guise of statelaw.HB 1219 creates whistleblower protections for local officials who come forwardwith violations of this law, and allows the state attorney general to intervene on behalf of victims of government abuse.The bill also instructs courts to nullify local ordinances that violate constitutionalrights. Localities would now have better incentive to write ordinances that complywith our supreme, fundamental and paramount law, the Constitution, in the first place.People will say that courts already have this power to nullify unconstitutional laws.True. But in the name of judicial restraint, courts too often defer to inferior lawsthat violate our supreme law, which allows legislative bodies to trample on our rights. Here, the inferior law eliminates that foible.Constitutionalists especially will like the next provision. It is that local ordinancesdo not have a presumption of constitutional validity.In a 1981 constitutional challenge to a zoning ordinance, the Virginia SupremeCourt declared that local ordinances have a presumption of validity, hence a presumption of constitutionality. This presumption is not created by statute, but by the judiciary, and places the burden on citizens to prove that laws areunconstitutional rather than making government prove that their laws areconstitutional, or at least start the case from a level playing field.The respective supreme courts have accorded state and federal statutes a presumption of constitutionality. Some legal scholars including Professor RandyBarnett have criticized that presumption, even calling it unconstitutional. But, stateand federal laws at least go through a constitutional process of two legislativechambers and a threat of executive veto. It is that constitutional structure --checks and balances -- on which the presumption is based. 
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