March 2009

Thanks to Dwight Merriam for the heads-up on “Driven Out,” the upcoming New York Times book review of Little Pink House – A True Story of Defiance and Courage, about the infamous 2005 eminent domain case Kelo v. City of New London, 545 U.S. 469 (2005). The review laments the Supreme Court’s “virtually incidental” role in the book: “The law itself barely gets a walk-on bit, withthe Supreme Court’s analysis of the case accorded less than aparagraph.”  The reason?

That’s because long before the court determined in 2005 that a town inConnecticut could use the “takings clause” of the Fifth Amendment toseize private homes in order to transform a lunch-pail community into ahip urban center, this case had been tried and decided in the court ofmade-for-TV movies. The story of a little pink house in New London andits determined owner launched a thousand enraged editorials, galvanizeda movement…

Continue Reading NY Times Sunday Book Review Of “Liitle Pink House”

A teaser for The Battle of Brooklyn, produced by the Moving Picture Institute (which “nurtures promising filmmakers who are committed to protecting and sustaining a free society”) about the ongoing redevelopment dispute in Brooklyn over the Atlantic Yards project. The summary describes the film:

The Battle of Brooklyn explores the poorly understood phenomenonof eminent domain abuse. A feature-length documentary from filmmakersMichael Galinsky, Suki Hawley, and David Beilinson, this filminvestigates how real estate developers, local government, communityactivists, and the media have clashed over the largest single-sourcedevelopment project ever proposed in New York City. Widely known as theAtlantic Yards project, this undertaking has for the past four yearsbeen a major source of contention as local residents resist abillionaire developers attempt to use eminent domain to seize theirhomes and businesses. Done in the name of “development,” schemes suchas this one eviscerate private property rights and make a mockery ofthe Fifth Amendment–and yet…

Continue Reading Preview of “The Battle of Brooklyn” Doc About Atlantic Yards

Okay, we’ve decided to surrender to temptation and let fly with bad (and obvious) egg puns. But at least they’re out of our system in the beginning. After that, no more yolks. We promise.

In Rose Acre Farms, Inc. v. United States,No. 2007-5169 (Mar. 12, 2009), the U.S. Court of Appeals for theFederal Circuit held that a regulation restricting the sale of eggs was not ataking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation “was not severe” and the character of the government action “strongly favored” the government.

Rose Acre Farms owns egg-laying chickens.  A lot of them: “eight layer-hen farms with millions of hens.” The USDA first promulgated temporary, then final regulations that restricted the interstate sale and transportation of eggs determined to be contaminated with salmonella. After illness outbreaks were traced to three…

Continue Reading Federal Circuit: Eggonomic Impact Not Eggregious Enough To Require Feds To Shell Out Compensation

Check out the interview with Nalo Farms owner (and Hawaii Farm Bureau Federation president) Dean Okimoto in this month’s Hawaii Business. 

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The state Constitution even, in article XI, section 3, expressly protects farming and ranching by commanding the State to “conserve and protectagricultural lands, promote diversified agriculture, increaseagricultural self-sufficiency and assure the availability ofagriculturally suitable lands.”

Disclosure: I represent the Hawaii Farm Bureau Federation.Continue Reading Hawaii Farmers And Ranchers: We Don’t Get No Respect

Thank you to Kamuela attorney Margaret Wille for allowing us to post the commentary she published in West Hawaii Today (Mar. 7, 2009), but which is not available on line. Posting on inversecondemnation.com is not an endorsement of the views expressed or the conclusions reached, but we thought it was worthwhile to hear others’ voices on this important subject. Disclosure: we represent the property owners in the eminent domain cases instituted by the County, County of Hawaii v. C&J Coupe Family Ltd. P’ship which she discusses. Our thoughts on the topic are posted here.

Who Pays For Impacts: You Do
by Margaret Wille

Recently there have been several articles in West Hawaii Today about “fair share” versus “impact” fees.  Probably there are many readers who wonder why do these fees matter to me. In other words, does this issue affect the ordinary Big Island taxpayer?  Yes, very much so.  

These fees, regardless of name, are charged to developers to defray a portion of the cost to maintain the current level of service for one or more categories of public facilities impacted by the proposed development.

The first question to ask is whether you believe the developer who reaps the financial benefit of the new development should shoulder a portion of the financial cost to maintain the current level of service for affected public facilities that are off of the developed property, e.g. area roads or police and fire stations. Would you rather all of the resulting costs to maintain the current level of service of these affected public facilities be paid for by us existing taxpayers? By way of example, when Costco went in, who paid the 5.5 million in cost to upgrade the Queen K intersection, just to maintain the current level of service at that intersection (I believe the level of service of that intersection was level D if not worse.) We did, you, me, all of us existing taxpayers and businesses paid for the improvements needed just to continue at that same low level of service (and if bond money was used for a portion of either the County’s or the State’s cost, you could say we saddled our kids with some of this expense).  If the County had passed a development fee ordinance consistent with the State’s 1992 impact fee law, some of the County’s cost of those intersection improvements would instead have been paid by Costco’s owners.  

Continue Reading Impact Fees And “Fair Share” Guest Commentary: “Who Pays For Impacts: You Do”

Develop Don’t Destroy 104597/07 (Brooklyn) v. Urban Dev. Corp., 2009 NY Slip Op 01395 (Feb. 26, 2009) is the latest decision involving Brooklyn’s Atlantic Yards redevelopment project. See “A Hole Grows In Brooklyn” from the Wall Street Journal for more.  An earlier constitutional objection to the public use of the taking was rejected in Goldstein v. Pataki,516 F.3d 50 (2d Cir. 2008). The most recent case involves the amount of scrutiny a court should give a blight designation that is used as a trigger to eminent domain. The short answer: none.

Six of the eight city blocks needed for the project had been designated as blighted since 1968 and there was no dispute that redevelopment was appropriate in that area. Another two blocks, however, were recently deemed to be blighted even though they are not “substandard and insanitary,” and property owners challenged the designation.

The Appellate…

Continue Reading Might Makes Blight In The New York Appellate Division

Two more amicus briefs supporting the petitioner in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009) are available.

In that case, the Illinois Supreme Court held (896N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property. Several casinos challenged the law asserting,among other arguments, that the redistribution of their money to trackswas a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takingsanalysis.

The Mountain States Legal Foundation’s brief argues the Court should review the case to resolve the confusion created by Eastern Enterprises, Inc. v. Apfel, 524 U.S. 498 (1998), and because the Illinois Supreme Court’s decision means that money is not “property.”

The brief of property and…

Continue Reading More Amicus Briefs In Empress Casino (Can The Gov’t “Take” Money?)

The U.S. Court of Appeals has denied a petition for rehearing and rehearing en banc in Casitas Municipal Water District v. United States,No. 2007-5153 (Sep. 25, 2008), a decision we noted here.  In September 2008, a panel held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout.  The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback.  The character of the government action was a physical diversionfor public use — the protection of an endangered species.” Slip op. at30.

The per curiam order denying rehearing is available here.  Three Federal Circuit judges dissented, arguing that no physical taking occurred because the federal government did not appropriate water from…

Continue Reading Federal Circuit Denies En Banc Review In Casitas

An Alaska borough has sought Supreme Court review of the Ninth Circuit’s determination in Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008) (a decision we analyzed here). The cert petition is posted here (No. 08-1052).

The Ninth Circuit held a property owner has two choices when faced with what it believes is an erroneous determination by the Corps of Engineers that property contains wetlands: either (1) apply for a very expensive Clean Water Act permit, or (2) don’t get a permit and challenge the Corps’ jurisdiction when the federal government brings criminal or civil charges. The court held that since the Corps’ jurisdictional determination is not a final agency action, the property owner cannot immediately challenge it under the Administrative Procedures Act. 

The borough wanted to develop a parcel fora playground, athletic fields, and associated infrastructure, and askedthe…

Continue Reading New Cert Petition – Corps’ Clean Water Jurisdiction Determination Is Reviewable Now

In Building Industry Ass’n of Central California v. City of Patterson, No. F054785 (Cal. Ct. App. Mar. 2, 2009), the California District Court of Appeal held that the city could not increase an in-lieu affordable housing exaction from $734 to $21,000 per house, because it failed to show the increase was attributable to the development.

The City of Patterson entered into a development agreement with the landowner in which the city agreed the owner would pay only those affordable housing fees in effect at the time the agreement was executed. The agreement recognized, however, that the exaction may be increased and that the city was preparing an “updated analysis.” The owner agreed to pay the revised exaction, provided it was “reasonably justified.” Predictably, the city revisited the exaction schedule and after study that changed the methodology of calculating the fee, revised it to $20,946 per market rate unit. After…

Continue Reading Cal. Court of Appeal Strikes Down Out-Of-Proportion In-Lieu Affordable Housing Exaction