June 2007

“Courts are required to be more than ‘rubber stamps’ in determining whether a taking furthers a public use.”

In a must-read opinion for eminent domain practitioners, the Appellate Division of the New York Supreme Court invalidated an attempted taking on public use grounds. 

In In the Matter of 49 Wb, LLC v. Village of Haverstraw, 2007 NY Slip Op 05506 (Jun. 19, 2007), the court held that a taking of private property for affordable house was an improper use of eminent domain since the “evidentiary record [is] that the Village invoked its power of condemnation for the sole purpose of benefitting private, and not public, interests.”  Slip op. at 22.  The court found that the “Village’s sole purpose [was] assisting private entities by means of condemnation.”  Slip op. at 22. 

This case follows the roadmap set out by the Court in Kelo v. City of New London…

Continue Reading ▪ Kelo Pretext vs. Public Use: Eminent Domain Improper When the Sole Purpose to Assist Private Entities

More on the US Supreme Court’s opinion (400kb pdf) in Wilkie v. Robbins (No. 06-219, June 25, 2007) (also posted here in HTML), a decision that unfortunately has not garnered much attention, despite the fact that its this year’s version Kelo.  The following items have been posted so far:

My previous posts on the case:

  • Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations (about the oral arguments)
  • Links to Further Wilkie Analysis
  • More on Wilkie

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    Continue Reading ▪ Government Gone Wild: More on Wilkie v. Robbins

    The US Supreme Court has issued its opinion in Wilkie v. Robbins (No. 06-219, June 25, 2007), a case I posted about here.  The legal issues in the case were whether there is a claim for RICO violations and a private claim for relief when federal officials are alleged to violate a property owner’s Fifth Amendment rights, retailing against him when he refused to provide free access to his land.  The Court held “no.”  More to follow after a better chance to digest the many opinions.  Preemptive Karma posts her (his? its?) thoughts here:

    The Supreme Court basically said that even if government officialsengage in behavior that would normally be considered racketeering, ifthey’re doing it in pursuit of their duties for the government and notfor any benefit for themselves, then they cannot be held personallyresponsible for racketeering. It pretty much seals sovereign immunityin stone. No matter where…

    Continue Reading ▪ Government Gone Wild: Wilkie v. Robbins Decided

    Kauai’s newspaper, The Garden Island, has posted a story “Legal funds approved for Ohana Kauai battle.”  The appeal, summarized in the story, was argued in February 2007, and is awaiting a decision from the Supreme Court of Hawaii.

    Ohana Kauai, a citizens group, helped put thetax relief measure on the November 2004 General Election ballot becauseit felt property tax reform was needed in light of skyrocketingassessments and huge county budgets.

    The measure passed with 75 percent of the voters in support of it.

    Asubsequent charter amendment proposed lowering homeowner property taxesto 1998 levels and limiting yearly increases to 2 percent.

    Butthe county challenged the measure’s validity, questioning whether theamendment should be able to override the county’s state-approved taxingauthority.

    Attorneys for Ohana Kauai said citizens also have that right, by law.

    In order to prevent the amendment from taking effect, the county attorney filed a lawsuit against the…

    Continue Reading ▪ Kauai Official: “The lawsuit was set up to get a court determination on the ballot issue” — More on Kauai’s Property Tax Charter Amendment Appeal

    West Hawaii Today has posted a story on an ongoing eminent domain case:

    Counsel for the developer William Meheula Jr. saidinverse condemnation can only be proven if the defendants admit thatthe government is taking possession of the private property for apublic purpose. The Coupe case claims the lack of public purpose fortaking the 3-acre strip of land for the highway.

    Meheula saidOceanside was not opposing the Coupe’s claims regarding public purposeand would address those during the trial, but said it was notappropriate to argue inverse condemnation at the same time.

    However,Robert Thomas, counsel for the defendants, who counter sued the countyto block the eminent domain proceedings, said there are no HawaiiSupreme Court cases that can be used to support Meheula’s claims.

    Ifthey do not prevail, the Coupe’s attorneys are also arguing “blight ofsummons damages,” which compensates a landowner in a condemnationaction for the damages resulting from the government’s delay in…

    Continue Reading ▪ Inverse Condemnation, Eminent Domain, and Development Agreements

    Does a landowner challenging the public use of a taking of property need to utilize state compensation procedures before seeking relief in federal court?  In Rumber v. District of Columbia (No. 06-7004, D.C. Cir. May 25, 2007), the U.S. Court of Appeals for the District of Columbia joined the majority of federal circuits and held “no.”

    Landowners challenged the District of Columbia’s power to condemn their property, alleging, among other things, that the taking was beyond the District’s authority because it was not “for public use” as required by the Fifth Amendment’s Takings Clause.  The D.C. Council had enacted a series of laws which authorized the National Capital Revitalization Corporation, a redeveloper, to take a shopping center by eminent domain. 

    The landowners objected, and filed suit in federal court alleging that a taking of their property would not serve a public purpose.  The federal district court dismissed the…

    Continue Reading ▪ Public Use Challenges Not Subject to Williamson County Ripeness

    The Missouri Supreme Court, in in Mint Properties v. Centene Plaza Redev. Corp. (SC88487, Jun. 12, 2007), clarified that state’s meaning of the term “blight” as a justification for taking property by eminent domain:

    (1) The evidence presented was insufficient to showthe social liability necessary to support a finding of blight. Section353.020 defines “blighted area” in part as consisting of those portionsof a city that, “by reason of age obsolescence, inadequate or outmodeddesign or physical deterioration have become economic and social liabilities, and that such conditions are conducive to ill health, transmission of disease, crime or inability to pay reasonabletaxes” (emphasis by italics added). The statute does not define “socialliability,” but its historical context suggests its definition focuseson the health, safety and welfare of the public.

    (2) The city failed to provide evidencesupporting a finding of social liability. Although the city managerhere expressed some potential concerns in his testimony regardingsafety…

    Continue Reading ▪ Eminent Domain and “Blight” Designations – Missouri Weighs In

    I’ve finally had a chance to sit down and read the recent Hawaii Supreme Court opinion in  Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), a case I posted about here.  I won’t detail the complex procedural history of the case, as the most interesting aspect of the opinion deals with whether a request for an agency to issue a declaratory ruling under Haw. Rev. Stat. § 91-8 can effectively substitute for an appeal of an agency decision, and the facts that resulted in that holding are fairly straightforward.

    The Honolulu Director of Planning and Permitting issued a Conditional Use Permit (CUP) to Wal-Mart build a store and “Sam’s Club” in urban Honolulu.  A citizen’s group, CARD, objected, but apparently missed the deadline to file an administrative appeal of the issuance of the CUP with the…

    Continue Reading ▪ HAWSCT: More on CARD v. Honolulu ZBA – Administrative Procedures in Land Use Cases

    In MiPro Homes, LLC v. Mount Laurel Township (No. 06-1345) (docket listing here), the US Supreme Court is being asked to consider the following question:

    Whether the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from taking private property for “public use” when the municipality’s public use determination is ad hoc, pretextual, and not part of a comprehensive planning process.

    This case is a follow up to Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the Court upheld a broad power to take private property for public use, provided it is accomplished as part of a comprehensive planning process.  This case asks whether a municipality’s claim that a taking was to preserve open space was “pretextual,” and was instead designed to halt ongoing residential development, and a determination made outside the usual planning process.  A prior proposal by…

    Continue Reading ▪ Cert Petition Challenging Kelo Pretext

    HnlIn “The downside of paradise,” the San Francisco Chronicle’s travel editor writes:

    News flash: There are problems in Paradise. 

    Actually, I don’t believe that any place is heaven on earth  —  though I’ve been to my fair share of purgatories, or worse  —  but some readers are disappointed that I don’t always highlight the lowlights of Hawaii. 

    What about the sluggish traffic on Kauai’s Coconut Coast or in Kailua-Kona on the Big Island, they ask. What about the helicopters that crash during sightseeing tours? And, did I know that many Hawaii residents oppose the coming interisland ferry service?

    The article highlights the problem of somewhere perhaps being too good for its own good, and is, in some ways, the mainland perspective on these local stories on the development vs.  preservation dynamic that is so common locally in land use.  About the photo — can you see Waikiki’s iconic

    …
    Continue Reading ▪ Trouble in “Paradise” — The Raindrop Never Believes It Is Responsible for The Flood