5 ms·

Nice job moving the goalposts there.

rayiner 9y ago
Sorry I meant to elaborate the thought. The government can’t just tell you to keep using your property a certain way. So if you get a notice from the government claiming to exercise some power it probably doesn’t have, what exactly do you “know” you’re buying into? If the county sends you a letter saying that they want you to operate a public park out of your back yard. And then you sell your house to someone who has notice of that letter. What does that mean? That the government gets to order the new owner to operate their back yard as a public park?
- lovich 9y ago
  When it's an easement, yes. And even with the public park example there is likely case law for that. We have numerous situations where land can be taken or designated for public use even though it is privately owned. If this easement didn't exist before his purchase then he'd be a much more sympathetic chracter,but he bought this land that everyone could use with the intention of blocking everyone else out so he could privately enjoy it.
  - rayiner 9y ago
    "Easement" isn't a magic word that let's the government use your property how it wants. (And no, the government can't just force you to run a public park on your property; governments have to buy the land they build parks on). There is an easement here--it's the right of way that arises allowing the public to cross private property in order to get to the sea shore. If that was what the litigation was about, Khosla would definitely be in the wrong. But the state is going way beyond that--it's forcing him to keep open the parking lot, allow access to the beach above the mean high tide line, etc. That goes way beyond the easement that exists. And the state admits that. There is no dispute in this case that the parking lot and sandy beach are not part of the easement. That's why the state had to go through a backdoor route: they're saying that he can't change the use of his undisputedly private property without getting a permit to do so.
    - harryh 9y ago
      You make a compelling case that Khosla is in the right here. If that is the case then why do you think he has been failing in court to date?
      - rayiner 9y ago
        I don't know the extensive history of the case, but from what I surmise it's because the lower court punted on the Constitutional question. The Supreme Court case law we have says that takings may happen when, e.g. denial of a permit prevents you from doing any development on your land. Here, the state is demanding that he apply for a permit to change the level of "access" at the beach. The lower court had said that the takings question was unripe for review because he hadn't applied for and been denied the permit. Khosla refuses to get a permit, and argues that requiring a property owner to get a permit just to change the use of the property is itself a taking.
        harryh 9y ago
        If he doesn't get cert based on the current petition, will he have the option of applying for the permit, having it (presumably) be denied, and then trying again?
        rayiner 9y ago
        Yes, the permit denial would precipitate a new opportunity for appeal, and seeking cert from that.

Sorry I meant to elaborate the thought. The government can’t just tell you to keep using your property a certain way. So if you get a notice from the government claiming to exercise some power it probably doesn’t have, what exactly do you “know” you’re buying into? If the county sends you a letter saying that they want you to operate a public park out of your back yard. And then you sell your house to someone who has notice of that letter. What does that mean? That the government gets to order the new owner to operate their back yard as a public park?

lovich 9y ago
When it's an easement, yes. And even with the public park example there is likely case law for that. We have numerous situations where land can be taken or designated for public use even though it is privately owned. If this easement didn't exist before his purchase then he'd be a much more sympathetic chracter,but he bought this land that everyone could use with the intention of blocking everyone else out so he could privately enjoy it.
- rayiner 9y ago
  "Easement" isn't a magic word that let's the government use your property how it wants. (And no, the government can't just force you to run a public park on your property; governments have to buy the land they build parks on). There is an easement here--it's the right of way that arises allowing the public to cross private property in order to get to the sea shore. If that was what the litigation was about, Khosla would definitely be in the wrong. But the state is going way beyond that--it's forcing him to keep open the parking lot, allow access to the beach above the mean high tide line, etc. That goes way beyond the easement that exists. And the state admits that. There is no dispute in this case that the parking lot and sandy beach are not part of the easement. That's why the state had to go through a backdoor route: they're saying that he can't change the use of his undisputedly private property without getting a permit to do so.
  - harryh 9y ago
    You make a compelling case that Khosla is in the right here. If that is the case then why do you think he has been failing in court to date?
    - rayiner 9y ago
      I don't know the extensive history of the case, but from what I surmise it's because the lower court punted on the Constitutional question. The Supreme Court case law we have says that takings may happen when, e.g. denial of a permit prevents you from doing any development on your land. Here, the state is demanding that he apply for a permit to change the level of "access" at the beach. The lower court had said that the takings question was unripe for review because he hadn't applied for and been denied the permit. Khosla refuses to get a permit, and argues that requiring a property owner to get a permit just to change the use of the property is itself a taking.
      - harryh 9y ago
        If he doesn't get cert based on the current petition, will he have the option of applying for the permit, having it (presumably) be denied, and then trying again?
        rayiner 9y ago
        Yes, the permit denial would precipitate a new opportunity for appeal, and seeking cert from that.