APPEAL OF DIRECTIVE BY MAUI COUNTY DIRECTOR OF ENVIRONMENTAL MANAGEMENT Letter June 5, 2018
Background documents in support
By Maui Sunset Condominium
2019 TABLE OF CONTENTS
BACKGROUND DOCUMENTS 1-42
LETTER OF SEPTEMBER 21, 2105 FROM ENVIRONMENTAL MANAGEMENT 1
LETTER OF MAY 17, 2-16 FROM ENVIRONMENTAL MANAGEMENT 2-3
LETTER OF JUNE 5 FROM ENVIRONMENTAL MANAGEMENT 4-5
PORTIONS OF COUNTY ORDINANCE 20.30 6
EXTRACTS FROM REUSE GUIDELINE DOH 2016 7-8
LETTER FROM DON COUCH ON REQUIREMENT FOR NEW SYSTEM 9
CLEAN WATER ACT 1972______10
ARTICLES ON DAMAGE TO WATER BODIES FROM TREATED SEWAGE 11-15
WATER QUALITY DATA AT WAIPUILANI PARK 16
US CONSTITUTION -AMENDMENT 5 17
PAPER ON CASE LAW CONCERNING THE 5TH AMENDMENT 18-39
FEDERAL FAIR HOUSING ACT 1988______40-42
ii
Verbdom Sections of Maui County Ordinance 20.30
• Chapter 20.30 - USE OF RECLAIMED WATER • Article I. - General Provisions • 20.30.010 - Purpose.
The purpose of this legislation is to conserve the limited water resources in the County of Maui, encourage the use of reclaimed water and reduce the reliance on injection wells for the disposal of wastewater effluent. The mandatory use of reclaimed water for irrigation purposes, in areas where the County or a developer or both have constructed reclaimed water facilities, is an effective means of achieving these goals. The council therefore finds in keeping with the County's wastewater effluent reclamation policy that it is in the best interest of the public health, safety, and welfare to require the use of reclaimed water for irrigation purposes, wherever economically feasible, in areas where a reclaimed water distribution system has been installed and can be used in compliance with regulatory requirements and to encourage the use of reclaimed water for construction, irrigation and other suitable purposes, in areas where reclaimed water fill stations are available and can be used in compliance with regulatory requirements. The three Brown and Caldwell studies, Wailuku-Kahului feasibility study dated June 1991, West Maui water reuse feasibility study dated May 1992 and the South Maui water reuse feasibility study dated September 1992, together with the rate and fee alternatives for reclaimed water service, serve as the basis for this legislation and are hereby approved.
20.30.020 - Scope and applicability. A. This chapter requires improved commercial property, as defined in this chapter, to connect to available reclaimed water service for irrigation purposes, including but not limited to golf courses, landscaping and agricultural uses, except for properties used for single-family or duplex purposes.
20.30.040 - Use of reclaimed water.
All consumers and users of reclaimed water shall be subject to the applicable rules and guidelines of the State of Hawaii department of health and other regulatory bodies having jurisdiction over reclaimed water. • D. The department reserves the right at all times to shut off service, with reasonable notice where practicable, for the purpose of making repairs, maintenance, extensions, or other modifications, and will not be responsible nor liable for any property loss or damage incurred by the consumer due to interruption of service. • F. If a sufficient amount of reclaimed water is not available to satisfy a consumer's needs, or if the chloride levels of the reclaimed water are too high for the consumer's intended purpose, the consumer may blend water from alternative sources (except for potable water sources) in accordance with rules adopted by the director.
• 20.30.050 - Application for reclaimed water service; mandatory service.
Where there exists available reclaimed water service to improved commercial property, any existing irrigation system shall be connected to the reclaimed water system within one year of service availability in accordance with the provisions of this chapter and any rules relating thereto.
• 20.30.150 - Appeal.
A. Any consumer required to use reclaimed water may request, in writing to the director, an exemption from the requirement of this chapter if the use of reclaimed water will place an unreasonable economic burden on the consumer. The consumer shall file an appeal within thirty days of being notified to connect to the reclaimed water system.
EXTRACTS FROM REUSE GUIDELINES HAWAII DEPARTMENT OF HEALTH January 2016
Volume II: Recycled Water Projects A. Introduction The Department of Health (DOH) has long been an advocate for the use of recycled water provided that public health and water resources are not compromised.
C. Definitions "Adequate Buffer" means a buffer for spray irrigation that can be achieved by a separation distance of 500 feet; a physical barrier such as a wall or cliff; tall and dense vegetation; or irrigating with potable water within the 500 foot buffer zone.
H. BMPs – Component Identification Recycled water system components shall be identified to distinguish them from potable water system components. 1. Components to be Identified a. Piping, valves, valve covers, fittings, quick couplers; b. Pump exteriors; c. Back flow devices; d. Manhole covers; e. Fire hydrants; f. Sprinklers; and g. Emitters.
I. BMPs – Public Education Recycled water users must educate and inform the public, workers, and any other persons likely to come into contact with the recycled water, of the potential health hazards arising from ingestion of or contact with recycled water. Recycled water should never be used for human consumption. Hands and other areas of the body that come into contact with recycled water should be washed with soap and potable water.
3. Information for Training: Owners/employers shall inform their workers orally and in writing of the following: a. Recycled water is not suitable for drinking because it may contain organisms that cause illness. b. Items such as clothing or tools can transport disease-causing organisms. c. Employees should wash hands with soap and water before eating, drinking, and smoking, and at the end of the employees' work period. d. Employees should not eat or bring food into areas being sprayed with recycled water, areas still wet with recycled water, or areas where recycled water mist is present. In general, employees should avoid being in these areas as much as practicable. e. If an employee's hands have come into contact with recycled water, he should keep fingers and hands away from his eyes, nose, and mouth. f. If an employee has cuts or breaks in his skin, he should cover these areas with waterproof bandages or other protection before working with recycled water. g. If an employee's hands are regularly exposed to recycled water, wearing gloves impermeable to water may be appropriate. h. If an employee will regularly be exposed to areas wet with recycled water, wearing shoes or boots may be appropriate. i. Employees should prevent and minimize over-spray, runoff and ponding of recycled water. If this is not a part of their job, they should notify the recycled water manager if these conditions exist.
5.
2. Operation b. Controls should be adjusted and other measures taken to prevent direct or indirect runoff from the approved use area to outside areas such as streets, right-of-ways, sidewalks, parking lots, storm drains, gutters, and water bodies such as streams, ponds, and oceans. e. If recycled water is malodorous, notify the recycled water purveyor.
A. Restricted Areas
1. Restricted areas are as follows: c. Areas within 1,000 feet of wetlands, ponds or enclosed bays that fall within a designated reserve or protected conservation district.
INFORMATION ADDED NOT IN DOH GUIDELINES
(Waipuilani Park is approximately 350 feet in width east to west and borders the ocean.)
[Hawaiian Islands Humpback Whale National Marine Sanctuary The sanctuary encompasses 1,400 square miles (3,600 km2) in the islands' waters. It was designated by United States Congress on November 4, 1992, as a National Marine Sanctuary to protect the endangered North Pacific humpback whale and its habitat. With its boundaries including waters from the shoreline to depths of 600 feet (180 m) in many areas, the sanctuary encompasses a variety of marine ecosystems, including seagrass beds and coral reefs. Much of the sanctuary has fringing coral reefs close to shore and deeper coral reefs offshore. Hawaii's coral reefs are noted for their isolation. Over 25% of all Hawaii's reef animals are endemic, found nowhere else on Earth].[4]
6.
Aloha Mr. and Mrs. Sampson,
Thank you for your email. Unfortunately, you have been given some misinformation. Let me give you the facts. The majority of the condominium associations that front the Waipuilani park requested that the county put the R-1 lines in because they were spending too much money maintaining a county park. While the county appreciates the extra effort put in by the associations in helping maintain the county park, we are required by law to use the R-1 water as irrigation. This law (Maui County Code 20.30) was passed in 1996 and the county is not immune to the law. The State of Hawaii Department of Health has certain guidelines as to what is allowed to transmit R-1 water for irrigation purposes. The county would be happy to keep existing lines but must comply with the state regulations, as well. We will take every precaution to mitigate any damage to the existing grass areas, but please be aware that there will be trenching involved. This project is scheduled to be completed in 6 weeks at which time everything can resume as was before except that the county will now deliver the water.
Also note that this R-1 water, which is treated to near drinkable state is a valuable resource and has been used in many of our other parks. It is far better to re-use the water than inject it into injection wells.
Please feel free to contact me if you have further questions or concerns.
Mahalo,
Don Couch Executive Assistant to Mayor Alan M. Arakawa County of Maui
7, Clean Water Act UNITED STATES [1972] WRITTEN BY: Arthur Holst
Clean Water Act (CWA), also known as Federal Water Pollution Control Act Amendments of 1972, U.S. legislation enacted in 1972 to restore and maintain clean and healthy waters. The CWA was a response to increasing public concern for the environment and for the condition of the nation’s waters.
The CWA is in charge of water quality and sets minimum standards for waste discharges for each industry, as well as regulations for specific problems such as toxic chemicals and oil spills. Point-source pollution, which is discharged by sewers and factories or other sources with a specific origin, is regulated by the Environmental Protection Agency (EPA) and the CWA’s discharge permit program, the National Pollutant Discharge Elimination System (NPDES). NPDES requires any wastewater- treatment plant to obtain discharge permits and follow EPA guidelines for water treatment. The permits place limits on the amount of material that can be discharged.
As a result of the CWA, many municipalities across the U.S. received federal funds to build and improve wastewater-treatment plants. Revisions to the CWA in 1987 removed the original construction grant program and replaced it with a streamlined State Water Pollution Control Revolving Fund. The CWA was also amended to address specific environmental issues such as wetlands protection or Great Lakes water quality. While significant improvements have been made in public health and the environment as a result of the EPA’s enforcement of the CWA, the CWA still faces challenges related to nonpoint-source pollution, such as motor oil in rainwater runoff; sanitary sewer overflows; continued water-treatment infrastructure improvements; and municipal sewage sludge use and disposal.
ARTICLE ON RESULTS OF DISCHARGE OF TREATED SEWAGE INTO BODIES OF WATER
Modern medicines are moving through sewage treatment systems and into aquatic insects and the animals that eat them, according to an environmental study in Australia that involved a Hudson Valley researcher.
Tests of six Australian streams near the city of Melbourne found animals there contained high doses of painkillers, antidepressants and other drugs that had gotten into the water after passing through municipal sewer systems that are unequipped to remove them.
"Stream life is swimming in a mixture of pharmaceuticals," said Emma Rosi, an aquatic ecologist at the Cary Institute of Ecosystem Studies, based in Milbrook, Dutchess County. "While this study was in Australia, there is no reason to think it would be any different in the Hudson River — or any other place where there are people and drugs."
Rossi, along with Australian and Swedish researchers, examined caddisflies, spiders, and other insects, as well as platypus and brown trout, which are predators of such aquatic life in that region, for 98 different medical drugs between 2014 and 2015. They found 69 of the drugs.
Chemicals were being taken up by insects that lived in the water, and then passed into the predators that ate the inspects, including spiders, trout and platypus.
Results showed, for example, that brown trout in one creek were being exposed each day to the equivalent of a quarter of a daily human dose of antidepressants. In another location, a platypus eating its normal diet of aquatic insects was being exposed to half of the daily dose for antidepressants.
The most commonly found drugs in the insects were tramadol, a form of synthetic opiate; codeine, an opiate painkiller; fluconazole, an anti-fungal drug; the high blood pressure medication metoprolol; and clomipramine, an antidepressant.
Drugs are likely entering the sewage systems after being excreted by people who are taking the medicines.
"Our study is the first to show that this chronic drug pollution can concentrate in aquatic insects and move up food webs, in some cases exposing top predators to therapeutically-relevant doses," Rosi said.
"Pharmaceutical use is increasing worldwide," she said. "We don't know the ecological consequences of exposure to this pollution. What does it mean to be a platypus or trout with more than 60 drugs in your tissues? If you told your doctor that you were taking 60 different drugs, they would be very concerned."
The work was supported by the Australia Research Council, the Society of Freshwater Science Fellows endowment award, and the Millbrook Garden Club in Dutchess County. It was published Tuesday in the peer-reviewed journal Nature Communications.
The study reinforces findings in a recent report on the Hudson River that found river water contained elevated levels of caffeine, artificial sweetener and medications for high blood pressure, ulcers, heartburn and pain relief. In that analysis, researchers found varying and sometimes concerning levels of 16 different pharmaceuticals, including antibiotics, drugs for treating high blood pressure, high cholesterol, epilepsy, ulcers and heartburn, and the common aspirin substitute acetaminophen.
Results were based on samples taken from the Hudson by the environmental group Riverkeeper at more than 70 spots along the river — from Troy to New York City — between May and July 2016. Some of the highest chemical levels were found near sewage discharge pipes for Kingston, where some drugs were found in what the report termed "potentially worrisome quantities."
That study was a collaboration of the U.S. Environmental Protection Agency, Riverkeeper, Columbia University's Lamont-Doherty Earth Observatory and Queens College.
Earlier studies have confirmed the presence of pharmaceuticals in river water in the Hudson and elsewhere in the United States. Recently, researchers found high concentrations of antidepressants in the brains of fish from the Niagara River in western New York.
A 1999-2000 study by the U.S. Geological Survey found measurable amounts in 80 percent of water samples taken from 30 states. A 2008 investigation by The Associated Press found detectable levels of various medications in the drinking water of some 40 million Americans.
Rosi said such studies support increased funding to upgrade municipal sewer systems. "There are ways to treat water for some of these drugs," she said. "We have to invest in our infrastructure."
Shrimp in five UK rivers have tested positive for cocaine.
A group of British scientists drug-tested freshwater shrimp from 15 sites across five rivers in Suffolk County, a rural area northeast of London. Their results, published in the journal Environment International, showed that all the shrimp contained trace amounts of cocaine, as well as the drug ketamine (an anesthetic sometimes used as a party drug) and a banned pesticide called fenuron.
The researchers said the drugs likely made their way into rivers and fresh water after human consumption; cocaine can pass from urine into our wastewater. Then especially if raw human sewage is left unfiltered and untreated the drug can flow from our sewage systems into surrounding aquatic ecosystems.
For years, scientists have found trace amounts of illicit drugs, pharmaceuticals and pesticides in drinking water around the world. A newer area of study is looking at how these chemicals impact wildlife living in these ecosystems.
"Pharmaceuticals and personal care products and pesticides and these types of illicit drugs have been detected in surface waters all over the world, because when we use them, our waste isn't always treated properly, and so they come out in rivers and streams," Emma Rosi, an aquatic ecologist at the Cary Institute of Ecosystem Studies who has done similar studies.
"We detect these compounds in the environment because people use them, and the things that we use in our everyday lives end up getting into the environment," she says. "What's very worrying is we don't know what the effects are, the ecological effects."
The researchers from King's College London and the University of Suffolk collected samples of Gammarus pulex shrimp in 15 locations in the county of Suffolk, northeast of London. They tested the shrimp for a wide range of pharmaceuticals, pesticides and illicit drugs.
Cocaine was found in samples at every single site. The researchers' paper, published recently in Environment International, says the concentration of cocaine did not fluctuate much between sites, "showing widespread contamination."
Lidocaine, which is used as a local anesthetic and sometimes in tandem with cocaine, was the second most common substance found. The study also detected ketamine, alprazolam and diazepam.
"Such regular occurrence of illicit drugs in wildlife was surprising. We might expect to see these in urban areas such as London, but not in smaller and more rural catchments," Leon Barron, a forensic scientist at King's who worked on this study, said in a statement.
The drugs and pharmaceuticals may be entering the water system through wastewater facilities, among other avenues.
Rosi concluded in a paper published last year that more than 60 pharmaceutical compounds could be detected in aquatic invertebrates and spiders in streams near Melbourne, Australia. In the Nature Communications study, her team also found that animals higher up the food chain like platypuses and gray trout "could in principle be exposed to certain drugs in their diets at levels comparable (up to 50%) to prescribed human doses."
Last year, researchers found traces of oxycodone in bay mussels in Washington state's Puget Sound.
In 2015, researchers in Ontario found that drinking water there was contaminated with small amounts of cocaine, which appeared to come from a nearby wastewater treatment plant. And in 2016, scientists found numerous drugs, including amphetamine, in streams around Baltimore.
The mix of pharmaceutical traces found in water sources is worrying for the same reason that doctors are careful about not mixing certain drugs in humans, Rosi says — because they could have adverse reactions.
"I've done research in lab settings where we have exposed aquatic organisms like invertebrates to various types of pharmaceuticals," Rosi adds, saying that they have found that the compounds can disrupt growth rates and have other negative effects.
SampleID SiteName Session Date Time Temp C Temp F Salinity DO DO_sat pH Turbidity TotalN TotalP Phosphate Silicate NNN NH4 1 KWP171107 Waipuilani Park 1 11/7/2017 8:20 26.1 79.0 33.7 5.47 81.5 8.19 8.20 132.62 17.13 12.14 700.23 42.91 6.68 11 KWP171121 Waipuilani Park 2 11/21/2017 8:05 23.6 74.5 33.6 5.97 85.4 8.13 11.23 137.19 16.33 12.02 1010.94 76.49 4.43 33 KWP171219 Waipuilani Park 4 12/19/2017 8:13 24.5 76.1 34.4 6.47 94.4 8.08 20.20 108.77 22.16 11.94 459.97 25.84 3.46 45 KWP180109 Waipuilani Park 5 1/9/2018 8:07 22.4 72.3 33.4 6.71 93.3 8.12 21.10 103.57 21.14 11.59 671.52 28.21 5.82 57 KWP180123 Waipuilani Park 6 1/23/2018 7:55 23.3 73.9 35.2 6.53 93.4 8.08 24.73 109.28 21.26 8.21 298.82 14.81 12.01 69 KWP180206 Waipuilani Park 7 2/6/2018 7:55 23.7 74.7 34.9 6.63 95.9 8.11 33.93 131.10 12.05 10.45 251.16 23.50 8.53 81 KWP180220 Waipuilani Park 8 2/20/2018 7:54 22.5 72.5 33.6 6.68 93.5 8.08 27.73 102.19 16.02 12.48 769.91 31.07 3.74 104 KWP180306 Waipuilani Park 9 3/6/2018 7:56 21.4 70.5 31.9 6.83 93.3 8.09 25.73 171.07 18.85 14.73 1271.72 104.72 1.34 128 KWP180320 Waipuilani Park 10 3/20/2018 7:53 22.2 72.0 32.5 6.34 87.9 8.06 8.93 138.80 14.21 10.82 751.43 55.64 3.23 152 KWP180403 Waipuilani Park 11 4/3/2018 8:00 25.2 77.4 33.9 6.40 94.6 8.08 13.50 92.08 11.27 9.18 443.25 13.26 2.66 173 KWP180417 Waipuilani Park 12 4/17/2018 8:02 24.8 76.6 33.4 6.38 92.6 8.06 11.47 118.41 11.17 9.68 598.66 13.82 3.84 195 KWP180501 Waipuilani Park 13 5/1/2018 7:57 23.4 74.1 32.3 6.25 88.0 8.07 6.93 114.91 11.27 9.72 810.92 10.14 3.21 219 KWP180515 Waipuilani Park 14 5/15/2018 7:45 24.3 75.7 33.0 5.93 85.5 8.01 5.60 139.44 13.82 8.57 533.87 22.54 5.18 242 KWP180529 Waipuilani Park 15 5/29/2018 7:45 25.5 77.9 31.8 5.71 83.3 8.08 5.00 122.26 11.31 7.84 820.75 25.27 9.01 267 KWP180619 Waipuilani Park 16 6/19/2018 8:22 25.2 77.4 31.7 6.30 91.6 8.10 15.47 119.25 21.41 13.39 1189.07 42.58 4.98 287 KWP180710 Waipuilani Park 17 7/10/2018 8:15 26.2 79.2 32.3 4.88 72.3 8.07 2.30 105.31 13.68 6.96 944.71 32.03 4.74 307 KWP180731 Waipuilani Park 18 7/31/2018 8:25 27.6 81.7 32.0 4.95 75.1 8.06 5.18 198.16 15.83 10.09 1246.27 100.95 9.01 327 KWP180821 Waipuilani Park 19 8/21/2018 8:28 26.4 79.5 31.8 5.58 83.0 8.11 4.95 168.95 14.42 10.51 1250.79 82.20 7.93 327 KWP180821 Waipuilani Park 19 8/21/2018 8:28 26.4 79.5 31.8 5.58 83.0 8.11 4.95 168.95 14.42 10.51 1250.79 82.20 7.93 335 KWP180911 Waipuilani Park 20 9/11/2018 8:17 26.5 79.7 32.9 6.33 95.0 8.12 19.70 187.22 17.71 14.67 1073.42 98.02 3.92 350 KWP181002 Waipuilani Park 21 10/2/2018 8:15 26.0 78.8 33.2 6.16 91.4 8.02 22.17 125.65 11.97 10.63 735.79 33.02 4.27 Average 24.6 76.3 33.0 6.1 88.3 8.09 14.24 133.10 15.59 10.77 813.52 45.68 5.52 State Standard 0.40 3.50
11/7/2017 42.91 NNN 11/21/2017 76.49 NNN 12/19/2017 25.84 120.00120.00 Standard 3.50 1/9/2018 28.21 100.00 1/23/2018 14.81 100.00 2/6/2018 23.50 80.00 2/20/2018 31.07 60.00 3/6/2018 104.72 80.00 3/20/2018 55.64 40.00 4/3/2018 13.26 20.0060.00 4/17/2018 13.82 5/1/2018 10.14 0.00 11/7/2017 12/7/2017 1/7/2018 2/7/2018 3/7/2018 4/7/2018 5/7/2018 5/15/2018 22.54 40.00 5/29/2018 25.27 6/19/2018 42.58 7/10/2018 32.03 20.00 7/31/2018 100.95
8/21/2018 82.20 0.00 8/21/2018 82.20 9/11/2018 98.02 10/2/2018 33.02
11/7/2017 8.20 Turbidity Standard 0.40 11/21/2017 11.23 40.00 ' 12/19/2017 20.20 35.00 1/9/2018 21.10 40.00 1/23/2018 24.73 30.00 35.00 2/6/2018 33.93 25.00 2/20/2018 27.73 20.00 3/6/2018 25.73 30.00 3/20/2018 8.93 15.00 25.00 4/3/2018 13.50 10.00 4/17/2018 11.47 5.00 5/1/2018 6.93 20.00 5/15/2018 5.60 0.00 5/29/2018 5.00 15.0011/7/2017 12/7/2017 1/7/2018 2/7/2018 3/7/2018 4/7/2018 5/7/2018 6/19/2018 15.47 7/10/2018 2.30 10.00 7/31/2018 5.18 8/21/2018 4.95 5.00 8/21/2018 4.95 9/11/2018 19.70 0.00 10/2/2018 22.17 11/7/2017 12/7/2017 1/7/2018 2/7/2018 3/7/2018 4/7/2018 5/7/2018 6/7/2018 7/7/2018 8/7/2018 9/7/2018
11/7/2017 79.0 Tempurature F 11/21/2017 74.5 12/19/2017 76.1 84.0 1/9/2018 72.3 82.0 1/23/2018 73.9 2/6/2018 74.7 80.0 2/20/2018 72.5 78.0 3/6/2018 70.5 3/20/2018 72.0 76.0 4/3/2018 77.4 74.0 4/17/2018 76.6 5/1/2018 74.1 72.0
5/15/2018 75.7 70.0 5/29/2018 77.9 6/19/2018 77.4 68.0 7/10/2018 79.2 66.0 7/31/2018 81.7 8/21/2018 79.5 64.0 8/21/2018 79.5 9/11/2018 79.7 10/2/2018 78.8 38 U.S. Constitution - Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Washington University Journal of Law & Policy
Volume 3 Evolving Voices in Land Use Law: A Festschrift ni Honor of Daniel R. Mandelker
2000 The Right to Exclude Others from Private Property: A Fundamental Constitutional Right David L. Callies
J. David Breemer
Follow this and additional works at: http://openscholarship.wustl.edu/law_journal_law_policy Part of the Property Law and Real Estate Commons
Recommended Citation David L. Callies and J. David Breemer, The Right to Exclude Others from Private Property: A Fundamental Constitutional Right, 3 Wash. U. J. L. & Pol’y 39 (2000), http://openscholarship.wustl.edu/law_journal_law_policy/vol3/iss1/3
This Discussions on the National Level is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Part II: Discussions on the National Level
Chapter 2: Property Rights
The Right to Exclude Others From Private Property: A Fundamental Constitutional Right
David L. Callies* J. David Breemer**
I. INTRODUCTION
Property rights, and particularly rights in land, have always been fundamental to and part of the preservation of liberty and personal freedom in the United States.1 They are particularly so today.2 The
* Benjamin A. Kudo Professor of Law, William S. Richardson School of Law, University of Hawaii at Manoa; A.B., DePauw University; J.D., the University of Michigan; LL.M., the University of Nottingham (Eng.). Professor Callies gratefully acknowledges the support of the William S. Richardson School of Law and the Hawaii Property Law Project (funded in part by the Pacific Legal Foundation and the Cades Foundation) in the research and writing of this article. ** Class of 2001, William S. Richardson School of Law; 2000-2001 Casenotes Editor, University of Hawaii Law Review; M.A. Political Science, University of California at Davis. Mr. Breemer wishes to acknowledge the support of Professor Callies and Mirabai Breemer as well as that of the above-cited organizations in helping to make his participation in this article possible. 1. For a summary of the thirteenth and fourteenth centuries roots of our present constitutional principles and the treatment of property rights through the late 1980s, see Norman Karlin, Back to the Future: From Nollan to Lochner, 17 SW. U. L. REV. 627, 638 (1988) (“To the framers [of the Constitution], identifying property with freedom meant that if you could own property, you were free. Ownership of property was protected.”). See also JAMES W. ELY, THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS 26 (1992) (quoting ARTHUR LEE, AN APPEAL TO THE JUSTICE AND INTERESTS OF THE PEOPLE OF GREAT BRITAIN IN THE PRESENT DISPUTE WITH AMERICA (4th ed. 1775)); 2 BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND (l767); Chicago B & Q R. Co. v. Chicago, 166 U.S. 226, 235 (1897). For a series of essays on property rights in America between the seventeenth and twentieth centuries, see LAND LAW AND REAL PROPERTY IN AMERICAN HISTORY (Kermit L. Hall ed,. 1987). 2. See ELY, supra note 1; W.J.F. Realty Corp. et al. v. New York, 672 N.Y.S. 2d 1007,
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right to exclude others is a fundamental aspect of those property rights.3 In 1918 Justice Brandeis observed that “[a]n essential element of individual property is the legal right to exclude others from enjoying it.”4 More recently, Professor Richard Epstein, in his seminal work on property and takings, describes “[t]he notion of exclusive possession” as “implicit in the basic conception of private property.”5 It is so recognized in the first edition of the American Law Institute’s Restatement of the Law of Property: Section 7 Possessory Interests in Land A possessory interest in land exists in a person who has (a) a physical relation to the land of a kind which gives a certain degree of physical control over the land, and an intent so to exercise such control as to exclude other members of society in general from any present occupation of the land.6 Professor Jan Laitos describes the right to exclude as one of those “rights valued so highly, that the abolishment will result in the offending law being declared unconstitutional.”7 The Fifth Amendment to the U.S. Constitution states, in relevant part: “[N]or shall private property be taken for public use, without just compensation.” The United States Supreme Court has clearly and unequivocally stated that the right to exclude is a fundamental element of this
1008 (1998): Carol Rose, Property as the Keystone Right, 2 NOTRE DAME L. REV. 329 (1996); William W. Van Alstyne, The Recrudescence of Property Rights As the Foremost Principle of Civil Liberties: The First Decade of the Burger Court, 43 LAW AND CONTEMP. PROBS. 66 (1980). 3. See STEVEN J. EAGLE, REGULATORY TAKINGS § 7.2 (1999); DWIGHT MERRIAM & FRANK MELTZ, THE TAKINGS ISSUE 199-128 (1999); JAN LAITOS, LAW OF PROPERTY PROTECTION § 5.03[A] (1999). Daniel Mandelker touched upon this issue in § 2.09 of his widely-used and well-regarded treatise, LAND USE LAW (4th ed. 1997), as well as in his casebook with RICHARD A. CUNNINGHAM & JOHN M. PAYNE, PLANNING AND CONTROL OF LAND DEVELOPMENT 131-32 (4th ed. 1995), and in Daniel R. Mandelker, New Property Rights and the Takings Clause, 81 MARQUETTE L. REV. 9 (1997). 4. International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting). 5. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 63 (1985). 6. RESTATEMENT OF PROPERTY § 7 (1936). 7. Laitos, supra note 3, § 5.16.
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constitutionally-protected right to private property, that physical intrusion (particularly if permanent), whether by government or by private parties acting under government permission, violates that right, and that individuals given a permanent and continuous right to pass over private property amounts to such physical occupation.8 Moreover, it has cited the above-quoted Restatement section with approval in several cases discussing property rights and the right to exclude.9 This article discusses the fundamental nature of the right to exclude as it emanates not only from decisions of the U.S. Supreme Court but from selected federal circuit and state appellate court decisions. As appears below, the right to exclude applies to both government and private activity on private land, whether the activity is the result of governmental attempts to secure a public interest or of theories associated with stronger rights emanating from custom and public trust.
II. GOVERNMENT ACCESS-SEEKING AND THE RIGHT TO EXCLUDE
Federal Courts have clearly recognized the fundamental nature of the right to exclude in cases where the government attempts to secure access to private property. Perhaps the strongest language comes from the U.S. Supreme Court’s opinion in Kaiser-Aetna v. United States.10 There, the Army Corp of Engineers claimed that certain improvements to Kuapa Pond in Hawaii Kai—a large residential development in Honolulu—resulted in a navigational servitude, which precluded the pond’s owners from denying public access to the pond.11 As described by the Court: “The Government contends that as a result of one of these improvements . . . the owner has somehow lost one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude others.”12 In holding that “the government’s attempt to create a public right of
8. See Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987). 9. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982); Kaiser Aetna v. United States, 444 U.S. 164 (1979). 10. 444 U.S. 164 (1979). 11. See id. at 168. 12. Id. at 176.
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access to the improved pond goes so far beyond ordinary regulation...as to amount to a taking under the logic of Pennsylvania Coal v. Mahon,”13 the Court said: [W]e hold that the “right to exclude,” so universally held to be a fundamental element of the property right, falls within this category of interests that the government cannot take without just compensation. This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioners’ private property; rather the imposition [of the servitude] will result in an actual physical invasion of the privately owned marina. And even if the Government physically invades only an easement in property, it must nonetheless pay just compensation.14 In a different context, the Court decided in Loretto v. Teleprompter Manhattan CATV Corp. that the government- authorized placement of cable television cables and a small silver box on the rooftop of a multi-family, multistory building was a sufficient violation of the constitutionally protected right to exclude to warrant compensation.15 The Court declared that while it has often upheld regulation of property use where deemed necessary to promote the public interest, “[a]t the same time, we have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause.”16 The Court continued, “Although this Court’s most recent cases have not addressed the precise issue before us, they have emphasized that physical invasion cases are special and have not repudiated the rule that any permanent physical occupation is a taking.”17 Describing such physical occupation as “the most serious form of invasion of an owner’s property interests,” the Court “borrow[ed] a metaphor: the government does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a
13. Id. at 178. 14. Id. at 179-89 (emphasis added) (footnote and citations omitted). 15. See 458 U.S. 419, 421 (1982). 16. Id. at 426 (citations omitted). 17. Id. at 432.
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slice from every strand.”18 The Court placed particular emphasis on the adverse effects of such an invasion: Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property. As [another part of the opinion] indicates, property law has long protected an owner’s expectation that he will be relatively undisturbed at least in the possession of his property. To require as well that the owner permit another to exercise complete dominion literally adds insult to injury. Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent or nature of the invasion.19 Changing the metaphor somewhat, in Hodel v. Irving, the Court reiterated that the right to exclude is one of the most important sticks in the bundle of rights that comprise private property.20 In holding unconstitutional a law that required interests in land to escheat to the Sioux Indian Tribe upon the owner’s death, the Court compared the loss of the right to devise to the loss of the right to exclude: The character of the Governmental regulation here is extraordinary. In Kaiser Aetna v. United States, we emphasized that the regulation destroyed “one of the most essential sticks in the bundle of rights that are commonly characterized as property—the right to exclude others.” Similarly, the regulation here amounts to virtually the abrogation of the right to pass on a certain type of property— the small undivided interest—to one’s heirs.21 The Court also concentrated on the right to exclude in Lucas v. South Carolina Coastal Council, indicating that in the event of regulations that compel the property owner to suffer a physical
18. Id. at 435. 19. Id. at 436 (citations omitted). 20. Id. 21. Hodel, 481 U.S. at 716.
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invasion, “no matter how minute the intrusion and no matter how weighty the public purpose behind it, we have required compensation.”22 The Ninth Circuit Court of Appeals has, as it must, closely followed the principles laid down by the United States Supreme Court in protecting the fundamental right to exclude others from private property. For instance, in Hall v. City of Santa Barbara the court relied heavily on the Loretto decision in concluding that mobile home park owners could challenge as a taking an ordinance that compelled them to offer leases of unlimited duration:23 Property rights in a physical thing have been described as the rights “to possess, use and dispose of it.” To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. [T]he owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space. The power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of rights.24 Similarly, in Evers v. County of Custer, the Court held that a county declaration of intention to convert an ostensibly private road to a public thoroughfare amounted to an unconstitutional taking.25 Citing Kaiser Aetna, the Ninth Circuit said: “The County did everything it could, short of actually tearing down the gates, to open the road to members of the public, and officially endorsed their use of the road. A property owner’s right to exclude others is ‘universally held to be a fundamental element of the property right.’”26 The Eleventh Circuit followed the same principle in Cable Holdings of Georgia, Inc. v. McNeil Real Estate Fund VI, LTD.27 In
22. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). 23. Hall v. City of Santa Barbara, 833 F.2d 1270, 1276 (9th Cir 1986). In finding the rent control ordinance before it to have actually transferred some of the landlord’s property interest to tenants contrary to the Fifth Amendment, the court was later found to be in error by the U.S. Supreme Court in Yee v. City of Escondido, 503 U.S. 519 (1992). 24. 833 F.2d at 1277 (emphasis in original) (citation omitted). 25. 745 F.2d 1196 (9th Cir. 1984). 26. Id. at 1201 (emphasis added). 27. 953 F.2d 600 (11th Cir. 1992).
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that case the court focused on the right to exclude in questioning the constitutionality of a U.S. law that was interpreted by a lower court to grant franchised cable companies the right to use pubic easements previously dedicated for electrical, telephone, and video services. Specifically, the court declared: “When the government appropriates an owner’s right to exclude another’s physical presence without paying the owner just compensation, the government violates the takings clause.”28 A property owner’s right to exclude another’s physical presence must be tenaciously guarded by the courts.29 The Federal Circuit recognized the fundamental nature of the right to exclude in Hendler v. United States.30 In holding that the EPA had taken the “plaintiff’s right to exclude” and thus, private property, by installing wells on his land, the Court said: In the bundle of rights we call property, one of the most valued is the right to sole and exclusive possession—the right to exclude strangers, or for that matter friends, but especially the government. The notion of exclusive ownership as a property right is fundamental to our theory of social organization. In addition to its central role in protecting the individual’s right to be let alone-the ability to exclude freeriders—is now understood as essential to economic development, and to the avoidance of wasting of resources found under common property systems.31 The D.C. Circuit Court extended the primacy of the right to exclude to personal property in Nixon v. The United States: More importantly, the [law] has completely abrogated Mr. Nixon’s right to exclude others from the materials. As the court has confirmed time and time again, the right to exclude others is perhaps the quintessential property right.32
28. Id. at 604-05. 29. Id. at 605. 30. 952 F.2d 1364 (Fed. Cir. 1991). 31. Id. at 1374-75 (emphasis in original) (citations omitted). 32. Id. at 1286 (citing Kaiser Aetna, 444 U.S. at 179; Loretto 458 U.S. at 433; Hodel 481 U.S. at 704).
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Finally, in LeClair v. Hart, the Seventh Circuit agreed that the “right to exclude others is generally ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property’” in rejecting the argument that an unauthorized IRS recording of plaintiff’s possessions was not a seizure because it did not involve a confiscation of property.33 State appellate courts have recognized the right to exclude others as a fundamental attribute of property ownership in Hawaii,34 Washington,35 Pennsylvania,36 Mississippi,37 Kentucky,38 Massachusetts,39 New Hampshire,40 Maine,41 Rhode Island,42 Michigan,43 and New Jersey.44 In Eaton v. B.C.&M.R.R., the New Hampshire Supreme Court became one of the earliest state courts to clearly recognize that the right to exclude is a fundamental property interest the taking of which is unconstitutional without just compensation.45 In Eaton a railroad company acting under legislative authority destroyed a ridge during construction of a road and thereby precipitated the flooding of an adjacent property.46 In considering whether the legislature had the power to sanction the flooding without providing compensation, the court explained that a taking of property is not limited to those cases where a property title is confiscated.47 Rather, the court stated that a
33. LaClair v. Hart, 800 F.2d 692 (7th Cir. 1986) (citing Kaiser Aetna, 444 U.S. at 176). 34. Kalipi v. Hawaiian Trust Co., Ltd., 656 P.2d 745, 749 (Haw. 1982). 35. Margosa Associates v. City of Seattle, 854 P.2d 23 (1993); Sintra, Inc. v. City of Seattle, 879 P.2d 765, 771 (1992). 36. Petition of Borough of Boyertown, 466 A.2d 239, 245 (Pa. Comm. Ct. 1983). 37. Clanton v. Hathorn, 600 So. 2d 963, 965 (Miss. 1992). 38. Southland Development Corp. v. Ehrler’s Dairy, Inc., 468 S.W.2d 284, 286 (Ky. Ct. App. 1971). 39. Opinion of the Justices, 313 N.E.2d 561 (Mass. 1974). 40. Opinion of the Justices, 649 A.2d 604, 611 (N.H. 1994). 41. Bell v. Town of Wells, 557 A.2d 168, 178 (Me. 1989). 42. Steven Harris v. Town of Lincoln, 668 A.2d 321, 327 (R.I. 1995). 43. City of Lansing v. Edward Rose Realty, Inc., 502 N.W.2d 638, 642 (Mich. 1993); Bott v. Comm. of Natural Resources, 327 N.W.2d 838, 851 (Mich. 1982); Grand Rapids Booming Company v. Morris Jarvis, 30 Mich. 308 (1874); Vanderlip v. City of Grand Rapids, 41 N.W. 677, 682 (Mich. 1889). 44. Gardner v. New Jersey Pinelands Commission, 593 A.2d 251, 262 (N.J. 1991). 45. 1872 WL 4329 (1872). 46. Id. at 504-05. 47. Id. at 512.
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taking occurs whenever the rights that inhere in property, including the right to exclude, are denied: If property in land consists of certain essential rights, and a physical interference with the land substantially subverts one of those rights, such interference “takes,” pro tanto, the owner’s “property.” The right of indefinite user (or of using indefinitely) is a essential quality . . . This right of user necessarily includes the right and power of excluding others from using the land. From the very nature of these rights of user and exclusion, it is evident they cannot be materially abridged without, ipso facto, taking the owner’s “property.”48 Similarly, in Grand Rapids Booming Company v. Morris Jarvis, a logging company acting under color of statute backed up a river with its equipment and logs and thereby caused the flooding of nearby private property.49 In considering whether the statute authorized the uncompensated flooding of land, the court emphasized that it is the incidents of ownership, including the right to exclude, not just the title, that are legally protected: Is not the idea of property in, or title to lands, apart from, and stripped of all its incidents, a purely metaphysical abstraction, as immaterial and useless to the owner as “the stuff that dreams are made of?” Is it not a much less injury to him, if it can injure him at all, to deprive him of this abstraction, than of the incidents of property, which alone render it practically valuable to him? And among the incidents of land, or anything else, is not the right to enjoy its beneficial use, and so far to control it as to exclude others from that use, the most beneficial, the one most real and practicable idea of property, of which it is a much greater wrong to deprive a man, than the mere abstract idea of property without incidents?50 Not surprisingly, the court held that the “legislature had no constitutional power to give the company the right to flood these
48. Id. at 511. 49. 30 Mich. at 311. 50. Id. at 320-21.
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lands against the will of the owner, without just compensation, at least.” The Michigan court’s respect for the right to exclude has not diminished with the passage of time. For instance, it rejected the “recreational boating test” as the standard for determining navigability in Bott v. Michigan, because it “would deny riparian and littoral owners the right to exclude others, a right inherent in the concept of private property.”51 Later, in the 1993 case of City of Lansing v. Rose, the Michigan Supreme Court found that an owner’s right to exclude trumped the City’s power to condemn property on behalf of a private cable company. Specifically, the court stated: “In light of Continental’s extensive private interest, we find [the] asserted rationales for mandatory access to [plaintiff’s] property to be insufficient to overcome [plaintiff’s] right to exclude others from its private property.”52 The Wisconsin Supreme Court reached a similar result in Noranda v. Strom.53 There, the court rejected the argument that a Wisconsin statute requiring a mineral exploration company to divulge geological data to the state could alter the company’s property rights to the extent that compensation was not required for the taking because, “although a state may redefine property rights to a limited extent, it lacks the power to restructure rights so as to interfere with traditional attributes of property ownership, such as the right to exclude others.”54 The court concluded that the statute requiring Noranda to give up its right to exclude was a “government intrusion of a serious character” and therefore amounted to an unconstitutional taking.55
III. THE RIGHT OF A PROPERTY OWNER TO EXCLUDE UNDER THE FIFTH AMENDMENT’S PROPERTY CLAUSE APPLIES TO PRIVATE INDIVIDUALS AS WELL AS TO THE GOVERNMENT
As noted by Laurence H. Tribe in his authoritative treatise on
51. 327 N.Y.2d at 851. 52. 502 N.W.2d 646. 53. 335 N.W.2d 596 (1983). 54. Id. at 603-04. 55. See id. at 630.
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constitutional law:56 An important premise underlying all three of the foregoing cases57 . . . is that uncompensated physical invasions by third parties acting under the express authorization of government are just as unconstitutional as are takings in which the government itself is the trespasser. . .. A taking is a taking regardless of whether the invasion of property is committed by the government or by a private party acting at government’s invitation.58 This analysis is clearly reflective of the Court’s response to the City of New York’s contention in Loretto that intrusion by private parties should be treated “differently”: “We disagree. A permanent physical occupation authorized by state law is a taking without regard to whether the state, or instead a party authorized by the state, is the occupant.”59
A. Regular Use, As Well As Permanent Occupancy, Is an Unconstitutional Invasion Violating the Right to Exclude
A careful reading of the Loretto case will disclose that the Court had before it, and therefore refers often to, a permanent physical invasion. However, as Professor Frank Michelman observes in his often-cited and quoted (by the Court in Loretto and federal appeals courts) article on property and takings: The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents or the public at large, “regularly” use, or permanently occupy, space or a thing which theretofore was understood to be under private ownership.
56. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW (2d ed. 1988). 57. The cases reviewed by Tribe include Loretto v. Manhatten Teleprompter CATV Corp., 458 U.S. 419 (1982), Kaiser Aetna v. United States, 44 U.S. 164 (1979), and Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980). 58. Tribe, supra note 56, at 604-05 n.33 (citations omitted). 59. Loretto v. Manhattan Teleprompter CATV Corp., 458 U.S. 419, 432-33 n.9 (1982).
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Just as we say, when government behaves as though it owns an easement of way over my land (by regularly passing through), that it has “taken” the “property” consisting of such an easement and therefore must pay for it, we may say that when government behaves as though it owns a servitude burdening my land . . . it has “taken” the “property” consisting of the servitude and therefore must pay for it.60 That the United States Supreme Court views such “regular use” like passing back and forth over private land as the Loretto equivalent of permanent occupation is crystal clear from its 1987 opinion in Nollan v. California Coastal Commission.61 There, the Court held that imposing a condition of public access across a private beach for a shoreline management permit was a taking of property requiring compensation under the Fifth Amendment. Citing both the Loretto and Kaiser Aetna cases and referring to the rule in the former that a permanent physical occupation is a taking regardless of either the economic impact on the owner or the benefit to the public, the Court said: We think a ‘permanent physical occupation’ has occurred, for the purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.62 In the same paragraph, the Court reiterated that “[w]e have repeatedly held that, as to property reserved by its owner for private use, ‘the right to exclude [other is] “one of the most essential sticks in the bundle of rights that are commonly characterized as property.’” The Court further observed that “[t]o say that the appropriation of a public easement across a landowner’s premises does not constitute a taking of a property interest but (as Justice Brennan contends) ‘a mere restriction on its use’ is to use words in a manner that deprives
60. Id. at 1186 (emphasis added). 61. 483 U.S. 825 (1987). 62. Id. at 832.
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them of all their ordinary meaning.”63 Finally, in Dolan v. City of Tigard a property owner’s loss of the right to exclude again led the Court to more strictly scrutinize a local government’s attempt to exact an easement across private property.64 In Dolan the City of Tigard sought a public greenway across a property owner’s land in exchange for a permit that would allow the owner to expand a hardware store.65 Situated along a river bank, the city required the greenway so as to mitigate a flood hazard that it concluded would result from the owner’s construction of a parking lot.66 Rejecting the contention that the greenway was reasonably related to the impact of the hardware store construction, the court said: The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control. The difference to petitioner, of course, is the loss of her ability to exclude others. As we have noted, this right to exclude others is ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.67 Relying on Pruneyard Shopping Center v. Robins,68 the City of Tigard subsequently argued that the hardware store owner’s right to exclude others was compromised because the property at issue was commercial in nature.69 However, the Court rejected the city’s reliance on Pruneyard on the ground that, unlike in Pruneyard, “petitioner [in Dolan] would lose all rights to regulate the time in which the public entered onto the greenway, regardless of any interference it might pose with her retail store. Her right to exclude would not be regulated, it would be eviscerated.”70 While affirming that the city’s dedication demands invaded the owner’s right to
63. Id. at 831 (citations omitted). 64. 512 U.S. 374 (1994). 65. Id. at 379-80. 66. Id. at 382. 67. Id. at 393. (Citing Kaiser Aetna, 444 U.S. at 176). 68. 447 U.S. 74 (1980) (holding that under the California Constitution, the California Supreme Court could recognize free speech rights that permitted a person to distribute pamphlets on the premises of a large shopping center without the owner’s consent). 69. 512 U.S. at 393. 70. Id. at 393-94.
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exclude to a degree that triggered constitutional scrutiny, the Court nevertheless neglected the implicit question of whether the right to exclude was diminished by its holding in Pruneyard.
B. Pruneyard Does Not Diminish the Right to Exclude
In Pruneyard Shopping Center v. Robins,71 the U.S. Supreme Court considered whether a shopping center owner’s “right to exclude others” was violated when the California Supreme Court decided that free speech protections in the California Constitution allowed individuals to circulate petitions on the property without the owner’s consent.72 In holding that the California court’s interpretation did not affect an unconstitutional taking of private property by violating the owner’s right to exclude, the court said, “appellants have failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of their property that the state- authorized limitation of it amounted to a ‘taking.’”73 At first glance, Pruneyard might appear to undermine the right to exclude others so explicitly protected by Kaiser Aetna and Loretto. However, Pruneyard is clearly distinguishable from those cases on the following grounds: 1) The property owner in Pruneyard was already inviting the general public onto his premises but sought to exclude only those with whose speech he disagreed; 2) The owner was unable to show that an unchecked right to exclude was a central part of the economic value of his property;74 and 3) the owner’s attempt to exclude implicated the first amendment right to free speech, to which the courts have always accorded the greatest deference.75
71. 447 U.S. 74 (1980). 72. Id. at 88. 73. Id. at 84. 74. See RONALD D. ROTUNDA & JOHN E. NOWACK, TREATISE ON CONSTITUTIONAL LAW 729 (3d ed. 1999). 75. See Lloyd Corp. v. Tanner, 407 U.S. 551, 567-568 (1972) (stating “the courts properly have shown a special solicitude for the guarantees of the First Amendment.”); In re Lane, 79 Cal. Rptr. 729 (1969) (stating “Certainly the paramount and preferred place given the First Amendment freedom of speech right in our democratic system should be accorded precedence over the mere ‘naked title’ of [the] market owner[’s] interest in the premises”).
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There is yet a fourth basis for distinguishing Pruneyard: its emphasis on the right of states to expand civil liberties. The Court essentially invited the states to expand the reach of the First Amendment’s free speech guarantees to private activities, especially in contexts like the commercial shopping center at issue in Pruneyard.76 Yet, few state courts have either amended their constitutions or applied existing constitutional free speech provisions more broadly. Moreover, of the half-dozen states that have done so,77 many have recently retreated on grounds ranging from applicable free election guarantees78 to traditional state action requirements.79 In Commonwealth v. Hood80 for instance, the Supreme Judicial Court of Massachusetts declined to extend to non-election related speech an earlier decision recognizing a right under the Massachusetts Constitution’s free election clause to gather on private property signatures for placement of a candidate on a state ballot.81 Indeed, the court rejected outright the argument that free speech and assembly provisions in the Massachusetts Constitution permitted such activities on private property.82 Similarly, in Southcenter Joint Venture v. National Democratic Policy Committee,83 the Washington Supreme Court relied on the doctrine of state action in reversing an earlier decision allowing advocacy groups to demonstrate and solicit signatures at a shopping mall.84 In Southcenter Joint Venture the court declared that “[t]he free speech provision of the State of Washington . . . affords protection to the individual against actions of the State. It does not protect an
76. See Brady C. Williamson & James A. Friedman, State Constitutions: The Shopping Mall Cases, 1998 WIS. L. REV. 883, 887-88 (1998), and Kevin Gray & Susan Francis Gray, Civil Rights, Civil Wrongs and Quasi-Public Space, 1 EUROPEAN HUMAN RIGHTS L. REV. 46 (1999). 77. The states that have recognized some form of a right to speech on private property are New Jersey, Colorado, Oregon, Massachusetts, Washington, and Pennsylvania. See id. 78. See Commonwealth v. Hood, 452 N.E.2d 188 (Mass. 1983). 79. See Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co., 515 A.2d 1331 (Pa. 1986). 80. 452 N.E. 2d 188 (Mass. 1983). 81. See Batchelder v. Allied Stores Int’l, Inc., 445 N.E.2d 590 (Mass.1983). 82. See Commonwealth v. Hood, 452 N.E.2d at 191. 83. 780 P.2d 1282 (Wash. 1989). 84. See Alderwood Assocs. V. Washington Envtl. Council, 635 P.2d 108 (Wash.1981).
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individual against the actions of other private individuals. The free speech provision of our state constitution thus does not afford . . . a constitutional right to solicit contributions and sell literature at the mall.”85 Further, the court emphasized that “‘property [does not] lose its private character merely because the public is generally invited to use it for designated purposes.’”86 Finally, in Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co.,87 the Pennsylvania Supreme Court substantially limited the reach of Commonwealth v. Tate,88 in which the court held that state action was not required to implicate Pennsylvania’s free speech and assembly provisions so that individuals were permitted to pass out leaflets at a private college.89 In Western Pennsylvania Socialist 1982 Campaign, the court refused to allow individuals to solicit signatures at a shopping mall against the owner’s consent, concluding that, despite its holding in Tate, the Pennsylvania Constitution is only “a limit on our state government’s general power.”90 The court distinguished its holding in Tate on the basis that the college had transformed itself into a public forum by allowing the public “to walk its campus freely and use many of its facilities” and by holding public events,91 while the shopping mall owner had precluded the mall from becoming a public forum by “adhering to a strict no political solicitation policy.”92 Thus, it is clear that some of the courts that have accepted Pruneyard’s invitation to expand free speech rights to private property have been careful to do so only where the private property owner has not fully exercised the right to exclude.
85. 780 P.2d at 1285. 86. Id. at 1292 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972)). 87. 515 A.2d 1331 (Pa. 1986). 88. 432 A.2d 1382 (Pa. 1981). 89. See Commonwealth v. Tate, 432 A.2d at 1387-88. 90. Western Pennsylvania Socialist 1982 Campaign, 515 A.2d at 1335. 91. Id. at 1337. 92. Id.
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C. Custom, Public Trust and the Right to Exclude
U.S. courts have increasingly relied on customary rights93 and the rights of the public in public trust laws94 to derogate from private property rights, and in particular, the right to exclude others. Thus, for example, in Public Access Shoreline v. Hawaii County Planning Commission (PASH) the Hawaii Supreme Court declared that native Hawaiians (approximately one-fifth of the population) have the right to go upon any public or private land in the state in the exercise of traditional customary rights protected by the state constitution.95 Similarly, the Supreme Court of Oregon based its decision in State ex rel Thornton v. Hay to disallow private owners from fencing portions of beachfront lots on the customary rights of Oregon citizens to traverse dry sand areas along the coast.96 There is, however, a clear counter-trend as well. In the area of customary law, the Oregon Supreme Court temporarily retreated from the sweeping language in State ex rel Thornton in McDonald v. Halvonson, noting inconsistencies in Thornton and stating that “nothing in [Thornton] fairly can be read to have established beyond dispute a public claim by virtue of ‘custom’ to the right to recreational use of the entire Oregon coast.”97 Similarly, in upholding
93. See, e.g., Public Access Shoreline Hawaii v. Hawaii County Planning Commission, 903 P.2d 1246 (Hawaii 1995); State ex rel Thornton v. Hay, 462 P.2d 671 (Or. 1969); Stevens v. City of Cannon Beach, 894 P.2d 449 (Or. 1993), cert. denied, 114 S. Ct. 1332 (1994) (Scalia, J., dissenting); See generally DAVID L. CALLIES, CUSTOM AND PUBLIC TRUST: BACKGROUND PRINCIPLES OF STATE PROPERTY LAW? 30 ELR 10003 (2000); David Bederman, The Curious resurrection of Custom: Beach Access and Judicial Takings, 96 COLUM. L. REV. 1375 (1996); and Paul Sullivan, Traditional and Customary Revolutions: The Law of Custom and Conflict of Traditions in Hawaii, 20 U. HAW. L. REV. 99 (1999). 94. See, e.g., Orion Corp. v. State, 747 P.2d 1062 (Wash.1987), cert. denied, 486 U.S. 1022 (1988); National Audubon Society v. Superior Court of Alpine Co., 658 P.2d 709 (Cal. 1983); Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984). See generally David L. Callies, Custom and Public Trust: Background Principles of State Property Law? 30 ELR 10003 (2000); Pearson, Illinois Central and the Public Trust Doctrine in State Law, 15 VA. ENVTL. L.J. 713 (1996); Searle, Private Property Rights Yield to the Environmental Crisis: Perspectives on the Public Trust Doctrine, 41 S.C. L. REV. 897 (1990); Richard Lazarus, Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631 (1986). 95. 903 P.2d 1246 (Hawaii 1995). 96. 462 P.2d 671 (Or. 1969). 97. MacDonald, 780 P.2d at 724.
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a trespassing conviction in State of Hawaii v. Hanapi,98 the Hawaii Supreme Court limited the settings in which the Native Hawaiian customary rights identified in PASH could interfere with private property: “To clarify PASH, we hold that if property is deemed ‘fully developed,’ i.e., lands zone and used for residential purposes with existing dwellings, improvements and infrastructure, it is always ‘inconsistent’ to permit the practice of traditional and customary Native Hawaiian rights on such property.”99 In a pattern established by the Massachusetts Supreme Court in Opinion of the Justices, some state courts have emphasized the essential nature of the right to exclude in cases dealing with public trust. In Opinion of the Justices, the Massachusetts court considered whether a bill that created a public “on-foot right-of-passage” across intertidal lands amounted to a taking of private property. In finding the proposed legislation a probable taking, the court said: The permanent physical intrusion into the property of private persons, which the bill would establish, is a taking of property within even the most narrow construction of the phrase possible under the Constitutions of the Commonwealth and the United States. . .. The interference with private property here involves a wholesale denial of an owner’s right to exclude. If a possessory interest in real property has any meaning at all it must include the general right to exclude.100 In Bell v. Town of Wells, the Supreme Judicial Court of Maine echoed the Massachusetts opinion in considering the constitutionality of a bill which granted the public a broad recreational easement over private coastal property.101 Specifically, the court agreed that “[i]f a possessory interest in real property has any meaning at all it must include the general right to exclude others” and concluded that the imposition of the easement effected an unconstitutional taking
98. 970 P.2d 485 (Hawaii 1998). 99. State v. Hanapi, 970 P.2d at 494-95 (emphasis in original). In a footnote the court noted that “[t]here may be other examples of ‘fully developed’ property [besides residential] . . . where the existing uses of the property may be inconsistent with the exercise of native Hawaiian rights.” Id. at 495 n.10. 100. Id. at 611 (emphasis added). 101. Bell, 557 A.2d at 176.
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because “[t]he interference . . . involves a wholesale denial of an owner’s right to exclude the public.”102 The New Hampshire Supreme Court followed Maine and Massachusetts in Opinion of the Justices.103 There, the court considered whether a bill, which would have recognized a public easement in all the “dry sand area” along New Hampshire’s coast, including privately owned areas, affected an unconstitutional taking. Citing Bell the court explained that, “[i]f a possessory interest in real property has any meaning at all it must include the general right to exclude others.”104 Moreover, the court found that, as in Bell, “[a]lthough the bill does not completely deprive private property owners of the use of their property, ‘[t]he interference with private property here involves a wholesale denial of an owner’s right to exclude the public.’”105 Relying in part on Nollan v. California Coastal Commission,106 the court concluded that the imposition of an easement, and the denial of the right to exclude which would flow therefrom, was an unconstitutional taking. Finally, there is the dissent by Justice Scalia to the U.S. Supreme Court’s denial of a petition for a writ of certiori in the Stevens case: “There was no testimony in this record showing use of the narrow beach on the back of the cove. . .. The doctrine of custom announced in [Thornton] simply does not apply to this controversy . . . because there is no factual predicate for the application of the doctrine.”107 Justice Scalia subsequently concluded that the “newfound doctrine of ‘custom’ is a fiction.”108
IV. THE RIGHT TO EXCLUDE GOES INTERNATIONAL
The right to exclude has achieved international status with the 1999 opinion of the European Court of Human Rights in Case of
102. Id. at 178. 103. 649 A.2d 604 (N.H. 1994). 104. Id. at 611 (quoting Bell v. Town of Wells, A.2d 168, 178 (Me.1989)). 105. Id. 106. 483 U.S. 825 (1987). 107. 114 S. Ct. at 1335. 108. Id.
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Chassagnou and Others v. France.109 Before the Court was the French Loi Verdeille,110 which provides for the statutory pooling of hunting grounds. The effect on the plaintiffs (three farmers) was to force them to become members of a municipal hunters’ association and to transfer hunting rights to the association, with the result that all members of the association may enter their property for the purpose of hunting.111 The government of France claimed that the interference with the applicants’ property was minor since they had not been deprived of the right to use their property and all they had lost was the right to prevent other people from hunting on their land. However, the Court found that while it was “undoubtedly in the general interest to avoid unregulated hunting and encourage the traditional management of game stocks,”112 (clearly the purpose of the Loi Verdeille) the interference with the applicants’ fundamental right to peaceful enjoyment of their land was “disproportionate”: [Notwithstanding] the legitimate aims of the Loi Verdeille when it was adopted, the Court place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified.113
V. CONCLUSION
The right of a landowner to exclude others is a fundamental part of the equally fundamental Constitutional Right to the enjoyment of private property. The right is clearly articulated in decisions of the U.S. Supreme Court, Federal appellate courts, and state appellate
109. 1999 Eur. Ct. H.R. (25088/94, 28331/95 and 28443/95) (April 29 1999). 110. Law No. 64-696 of July 10, 1964. 111. See supra note 109, at para. 13. 112. Id. at para. 79. 113. Id. at para. 85. For a more detailed treatment of this case, see David L. Callies, Case Note, Chassaghou and Others v. France, European Court of Human Rights, Apr. 29, 1999, 2 BUS. L. INT’L 109 (2000).
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courts. Logically, the Restatement of the Law and respected Constitutional law treatises also conclude that the right to exclude is a fundamental right. It is a right rich in judicial support and a right that is fundamental to a free society. It is therefore appropriate, as the host of state courts discussed above have done, to take some care in formulating or reforming ancient doctrines such as custom that grant others the right to go on the land of another in a fashion that would otherwise amount to a trespass. Doctrines such as custom and public trust may very well be “background principles of state property law”114 under certain correctly circumscribed conditions, but if adopted without limitation, they threaten to swallow up that which is, at least so far, a fundamental property right guaranteed by the Fifth Amendment to the U.S. Constitution.115
114. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 115. See, e.g., Callies, Bederman, and Sullivan, supra note 93.
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Fair Housing Act of 1988
REASONABLE ACCOMMODATIONS
It is a violation of the Fair Housing Act for any person to refuse to make a reasonable accommodation in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.107 This means that the manager of an apartment complex must allow an exception to a rule or policy if it would afford a disabled tenant an equal opportunity to use and enjoy an apartment at the complex. An accommodation that permits disabled tenants to experience the full benefit of tenancy must be made unless the accommodation imposes an undue financial or administrative burden on a housing provider or requires a fundamental alteration in the nature of its program.108
With regard to a disabled tenant or disabled applicant’s reasonable accommodation request, the owner or manager of the apartment complex can request verification that the tenant or applicant is disabled and needs the requested accommodation to use and enjoy the apartment or community. However, the owner or manager cannot request information about the nature, extent, or severity of a person’s disability. Furthermore, if after a disabled tenant makes a reasonable accommodation request, the housing provider delays responding to the request, after a reasonable amount of time, that delay may be construed as a failure to provide a reasonable accommodation. The Federal Fair Housing Act 1988 Under the Fair Housing Act a reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service. The Fair Housing Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling and public and common use areas. In addition, the Fair Housing Act prohibits a housing provider from refusing to permit, at the expense of the person with a disability, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises. Reasonable Accommodations A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to fulfill their program obligations. Please note that the ADA often refers to these types of accommodations as “modifications.” Any change in the way things are customarily done that enables a person with disabilities to enjoy housing opportunities or to meet program requirements is a reasonable accommodation. In other words, reasonable accommodations eliminate barriers that prevent persons with disabilities from fully participating in housing opportunities, including both private housing and in federally-assisted programs or activities. Housing providers may not require persons with disabilities to pay extra fees or deposits or place any other special conditions or requirements as a condition of receiving a reasonable accommodation. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny persons with disabilities an equal opportunity to enjoy a dwelling or participate in the program. Not all persons with disabilities will have a need to request a reasonable accommodation. However, all persons with disabilities have a right to request or be provided a reasonable accommodation at any time. The Fair Housing Act, as amended in 1988, prohibits housing discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Its coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing. It is unlawful to discriminate in any aspect of selling or renting housing or to deny a dwelling to a buyer or renter because of the disability of that individual, an individual associated with the buyer or renter, or an individual who intends to live in the residence. The Fair Housing Act requires owners of housing facilities to make reasonable exceptions in their policies and operations to afford people with disabilities equal housing opportunities. For example, a landlord with a "no pets" policy may be required to grant an exception to this rule and allow an individual who is blind to keep a guide dog in the residence. The Fair Housing Act also requires landlords to allow tenants with disabilities to make reasonable access-related modifications to their private living space, as well as to common use spaces.. This includes accessible common use areas, doors that are wide enough for wheelchairs, kitchens and bathrooms that allow a person using a wheelchair to maneuver, and other adaptable features within the units. Complaints of Fair Housing Act violations may be filed with the U.S. Department of Housing and Urban Development. For more information or to file a complaint, contact: Office of Compliance and Disability Rights Division Office of Fair Housing and Equal Opportunity U.S. Department of Housing and Urban Development 451 7th Street, S.W. , Room 5242 Washington, D.C. 20410 www.hud.gov/offices/fheo (800) 669-9777 (voice) (800) 927-9275 (TTY)