A short video with Jeff Benedict, author of Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009), which tells the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005) (available from Amazon here).
More on the book here.Continue Reading Video Of Kelo’s New London Neighborhood With Author Jeff Benedict
Our post on the subject is located here.Continue Reading Sotomayor On Takings Issues
Our thanks to Dwight Merriam for responding to yesterday’s post on “Maui Mansionism” and noting the more common terms “McMansion,” “starter palace,” and (my favorite) “garage Mahal.” He’s also kindly forwarded two powerpoint presentations on regulation of big and tall homes: Monster Mash: Putting a Stop to Too-Big Houses (3mb pdf) and Teardown and Mansionization (4mb pdf). Read his land use posts at IMLA’s Local Government blog, and his book The Complete Guide to Zoning which we reviewed here.
Continue Reading More On McMansions
I learned a new -ism word today thanks to an article in the Maui News forwarded by my Damon Key colleague Mark Murakami. Currently, Maui’s “Hotel” zoning allows the property owner to build an apartment or a single-family residence as well as a hotel, but in Mansionism discouraged on land with hotel zoning, Harry Eagar writes:
The Maui Planning Department would like to take a stand againstcreeping mansionism in the hotel district, but Planning Director JeffHunt says the best way to approach the problem remains under discussion.
…
The draft hotel bill would delete apartments and single-family houses as permitted uses in hotel zones.
Generally, a less-intensive use within a district is seen as a good thing, and the article points out that “the community was pleased when that lot was ‘saved’ from dense hotel development.” Yet, building a large house is now characterized as some sort of
Continue Reading Mansionism Discouraged On Maui …”Mansionism?”
Second Circuit Judge Sonia Sotomayor, the nominee to fill Justice David Souter’s seat on the U.S. Supreme Court, has served as either a federal District or Circuit Judge for 18 years during which she’s either authored or sat on panels in cases involving eminent domain or regulatory takings. Here’s an admittedly unscientific sampling of those decisions, which reveal a mixed bag on the property issue:
In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the court held that a taking is not immune from judicial scrutiny for pretext or private benefit simply because the property is being taken for a “classic” use such as a road. The court recognized that the recitation by the government of some public benefit to a taking will not insulate it from judicial review if the claim of public benefit is a pretext to hide a private guiding hand. The court remanded the case to the trial court for a review of the record and a determination among other things of whether the County’s claim that it instituted the taking independently stood up, or whether the taking was simply a better-disguised retread of an earlier failed condemnation.
The recent decision by the Hawaii Supreme Court in
Under Haw. Rev. Stat. § 101-27,when a condemnation action is “abandoned or discontinued beforereaching a final judgment, or if, for any cause, the property concernedis not finally taken for public use,” the condemnor is liable for:
all such damage as may have been sustained by the defendant by reasonof the bringing of the proceedings and the possession by the plaintiffof the property concerned if the possession has been awarded includingthe defendant’s costs of court, a reasonable amount to cover attorney’sfees paid by the defendant in connection therewith, and otherreasonable expenses
In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not “finally taken” in acondemnation action when a single condemnation fails or is dismissed,even if the condemnor succeeds in a subsequent — or concurrent –attempt to take the
In United Here! Local 5 v. City and County of Honolulu, No. 28602 (May 22, 2009), the Hawaii Intermediate Court of Appeals held that a developer need not undertake a Supplemental Environmental Impact Statement under the Hawaii Environmental Policy Act, Haw. Rev. Stat. ch. 343, unless the plaintiff shows a substantive change in the project being reviewed.
The April 9, 2009 oral arguments are posted here.
Continue Reading HAWICA: Plaintiff’s Burden To Show Changed Project Warranting Supplemental EIS
You may remember Mel Brooks’ History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims “it’s good to be the King!” each time he takes advantage of one of his subjects.
Well, it turns out that it really is good.
In Sable v. Myers, No. 07-6286 (10th Cir. Apr. 24, 2009), the U.S. Court of Appeals held that city councilpersons are absolutely immune from claims they used the domain power to take the property of an owner as retaliation for his having successfully brought a quiet title action against the city.
Mr. Sable’s property was immediately north of the city’s public works facility. His predecessor in title had adversely possessed from the city a portion of a former city street on the southern boundary of the property, and this “strip” was fenced in along with Sable’s main parcel.
In Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (May 19, 2009), the Minnesota Court of Appeals held that when a delegation of eminent domain power from a municipality requires a redevelopment agency to enter into a development agreement before acquiring property, the agency is without power to take property until it enters such an agreement.
Most property owners within the redevelopment district did not object to the taking of their land but three did. They argued that the city’s resolution delegating condemnation power to the redevelopment agency incorporated a redevelopment plan into its requirements by reference. As noted by the court, section 1-8 of the resolution provided:
The Redevelopment Plan contemplates that the City may acquire property and reconvey the same to another entity. Prior to formal consideration of the acquisition of any property, the City will require the execution of a binding development agreement
