2009

Willets Point United has filed an amicus brief supporting their fellow New York City property owners in the public use case now pending in the New York Court of Appeals regarding the Atlantic Yards “redevelopment” project in Brooklyn, Goldstein v. New York State Urban Dev. Corp. As we noted here, Willets Point is under the takings gun itself, and has our Owners’ Counsel colleague Mike Rikon helping them (he also filed the amicus brief).

The brief argues that the Court of Appeals should not follow the Kelo rule of total deference to economic development takings: “The majority decision in Kelo v City of New London written by Justice Stevens was wrong, wrong in its holding and wrong on its facts.” Br. at 7. The New York Constitution’s public use clause prohibits economic development takings, and the brief walks through some of the more storied cases from that jurisdiction…

Continue Reading Amicus Brief In NY Court Of Appeals In Goldstein/Atlantic Yards Case: NY’s Public Use Clause Prohibits Judicial Rubber Stamp Of Takings

Justice Stevens’ majority opinion in Kelo v. City of New London, 545 U.S. 469 (2005) held the government’s public use determination isoff-limits if thedetermination was the result of a “comprehensive plan,” regardless ofwhether than plan has any realistic chance of actually beingaccomplished. Thus, property owners can be forcibly dispossessed of their homes based merely on the government’s “belief”  and “hope” a planwill succeed:

TheCity has carefully formulatedan economic development plan that it believes will provide appreciablebenefits to the community, including–but by no means limited to–newjobs and increased tax revenue. As with other exercises in urbanplanning and development,the City is endeavoring to coordinate a variety of commercial,residential, and recreational uses of land, with the hope that theywill form a whole greater than the sum of its parts. To effectuate thisplan, the City has invoked a state statute that specifically authorizesthe use of eminent domain to promote economic development. Given thecomprehensive…

Continue Reading Kelo Reality Check: “Belief” And “Hope” Aren’t All They’re Cracked Up To Be

Happy Birthday to us: we uploaded our first posts on this blog three years ago this day. In lawblog years, that’s quite a while.

If you can’t already tell by the nearly 900 posts during this time, we enjoy doing this. Even even though it’s a lot of work, it’s rewarding. Mostly because of the readers, subscribers, and contributors whom this blog has allowed us to meet and get to know over the years.

Finally, we wouldn’t be much without our fellow-travelers — those other law bloggers who, like us, make the time to share thoughts about the legal issues of the day. Here’s a partial list:

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Continue Reading Entering Our Fourth Year

What we’re reading today:

  • “Setting boundaries for property rights” — an opinion piece in the National Law Journal by our friend Timothy Sandefur about the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Highlight: “There must be some limit on the power of state courts to redefineproperty rights. The Supreme Court long ago limited their power tochange other laws in ways that infringe on constitutional freedoms.Southern judges often used cunning interpretations of state law tosilence civil rights protesters, only to be reversed by the high court.In one case, after a group of activists was convicted of trespass afterholding a sit-in, the justices overruled the conviction on the groundthat the South Carolina Supreme Court had ‘unforeseeably andretroactively expanded [the statute] by judicial construction,’ inviolation of due process.”

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Continue Reading Sunday Round-Up

In United Brotherhood of Carpenters and Joiners of America Local 848 v. National Labor Relations Bd., 540 F.3d 957 (9th Cir. 2008), the Ninth Circuit held that six rules applied by shopping centers to restrict picketing andhandbilling by union members violated the state constitution’s freespeech clause, and therefore impermissibly interfered with protectedunion activity. We summarized the Ninth Circuit’s decision here.

The shopping center owner has filed a cert petition asking the Court to review these Questions Presented:

In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), this Court held that states may require private shopping malls to grant third parties access to the malls’ common areas for purposes of engaging in certain expressive activity. The third-party activity at issue in PruneYard – solicitation of signatures on a political petition – was in support of a cause that the mall did not oppose and that did not conflict with the mall’s commercial interests. The present case raises the following questions, unanswered by PruneYard:

1. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s property rights under the Fifth Amendment where the activity – here, urging patrons to boycott the mall and its stores – conflicts with the mall’s commercial interests?

2. Does a state law requirement that a private shopping mall provide third parties access to the mall for expressive activity violate the shopping mall’s First Amendment free speech rights where the expressive activity is in support of a cause opposed by the mall?

The case is now titled Macerich Management Co. v. United Brotherhood of Carpenters and Joiners of America Local 568, No. 09-235 (cert. petition filed Aug. 24, 2009). The case’s docket entry is here.

Continue Reading New Cert Petition: Is Requiring Shopping Centers To Allow Adverse Speech A Taking?

In a case that’s highly topical given the current health care debate, in Franklin Memorial Hospital v. Harvey, No. 08-2550 (Aug. 5, 2009), the U.S. Court of Appeals for the First Circuit held that Maine’s requirement that hospitals provide free medical services to certain low income patients is not a regulatory taking.

The not-for-profit hospital sought a declaration that Maine’s “free care laws” effected a taking because “Maine’s free care laws do not reimburse the hospitals for their expenses incurred in delivering care to low income patients, and the amount of free care that the hospitals must provide is not limited under the statute.” Slip op. at 2. Maine statutes require hospitals to provide free inpatient and outpatient services to residents who earn at or below 150% of the federal poverty level, upon pain of fines and private enforcement suits by the state attorney general or any affected patient.

Continue Reading First Circuit: Requiring Hospital To Provide “Free” Medical Services Not A Taking

The New York Times‘ Greenwire blog posts Property Rights Groups Assemble Support in Regulatory Takings Case, about amici support in Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).

Property rights groups are lining up in support of private waterfront landowners in Florida at the center of a case that the Supreme Court will hear later this year.

Twelve groups, including the National Association of Home Builders and the Cato Institute, have filed friend-of-the-court briefs in Stop the Beach Renourishment v. Florida, which turns on whether Florida’s Supreme Court violated the Constitution’s regulatory takings clause when it upheld a plan to create a state-owned public beach between private waterfront land and the Gulf of Mexico.

. . .

Stop the Beach Renourishment will be the first taking case to come before Chief Justice John Roberts and Associate Justices…

Continue Reading NY Times On Property Owner Amici In Beachfront Takings Case

In yesterday’s New York Daily News, Dana Berliner of the Institute for Justice — the good folks who brought us Kelo — published “End eminent domain abuse: N.Y.’s highest court should rule against Bruce Ratner.” The latest Atlantic Yards case, Goldstein v. New York State Urban Dev. Corp., which is currently being briefed in the New York Court of Appeals prompts the op-ed:

It has been more than a generation since the state’s highest court has interpreted the New York Constitution’s provision that property may be taken only for “public use.” It’s time for the court to take a long, hard look – before more damage is done.

The fundamental legal question is whether the state should go along with the notorious 2005 decision by the U.S. Supreme Court in Kelo vs. City of New London. In that ruling, the court said that using eminent…

Continue Reading Op-Ed On Eminent Domain Abuse At NY’s Atlantic Yards

The recording of the oral argument in Dupree v. Hiraga, No 29464 has been posted. It is available here (caution, massive 34mb mp3 download). (Oral arguments in Hawaii’s appellate courts are not reduced to a written transcript, and the electronic recordings are the only record of arguments.)

The appeal concerns whether the State Board of Registration (County of Maui)correctly concluded that a Maui County councilperson who registered tovote as a Lanai resident is actually a resident of Maui. More details about the case, including the briefs of the parties, are posted here. Disclosure: my Damon Key colleagues and I represent the Lanai voterwho successfully challenged the residency of the councilperson.  Continue Reading HAWSCT Oral Argument Recording In Voter Registration Residency Appeal

Confirming that Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009) is shaping up to be one of the most interesting cases in the Supreme Court’s term, even more amici briefs are coming in supporting the petitioner/property owners.

In an earlier post, we noted that eight briefs have been filed, and now are posting four more:

Continue Reading Even More Amici Supporting The Property Owners In Beach Takings Case