2009

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…

Continue Reading Minn Court Of Appeals: Redevelopment Agency Exceeded Delegation Of Eminent Domain Authority

Under Haw. Rev. Stat. § 101-27, when a condemnation action is “abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is 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

The County of Hawaii filed a condemnation lawsuit, and when it looked like that action was in legal jeopardy, filed a second lawsuit seeking to take virtually the same property. The trial court eventually held the first condemnation was an unconstitutional private taking, but upheld the second.  The County denied it was liable for 101-27 damages…

Continue Reading Government Must Pay 100% Of Owner’s Defense Fees In Illegal Condemnation

To those who attended today’s seminar “Integrating Water Law and Land Use Planning,” thank you.  The materials from my session on “Water Rights, Property Rightsand the Law of Settled Expectations” are below. 

  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – the Hawaii Kai Marina case – physical invasions, regulatory takings, and interference with settled expectations.
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) – Hawaii water law is not a federal case.  Summary of the decision here.
  • The Hawaii State Planning Act,

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Continue Reading Materials And Links From Today’s Water Law Seminar

There’s still time to register for the upcoming seminar “Integrating Water Law and Land Use Planning,” being held in Honolulu at the Ala Moana Hotel on Thursday, May 14, 2009 from 9am – 4:30pm.  I’ll be leading the session on “Water Rights, Property Rights and the Law of Settled Expectations,” and my Damon Key colleage Christi-Anne Kudo Chock is handling “Hawaiian Water Rights – Where Culture and the Law Merge.”

Also on the faculty are Lenore Nakama Ohye, a hydrologic planning program manager for the State of Hawaii Commission on Water Resource Management; Lawrence E. Beck, P.E., from the County of Hawaii Department of Water Supply; and Lawrence Miike, M.D., a Commissioner on the Water Commission.  Seminar details, including a complete agenda and registration information, are posted here.Continue Reading Upcoming Water Law Seminar – Integrating Water Law and Land Use Planning

On behalf of the property owner, we’ve filed a Motion for Reconsideration (filed May 1, 2009) of the Hawaii Supreme Court’s latest opinion in which the court held that a condemnee who appeals the denial ofdamages for a failed taking is entitled to damages it sustains onappeal. The opinion had three points that merited correction:

  • Haw. Rev. Stat. § 101-27 requires the condemnor to pay all damages sustained by the property owner when a taking is ultimately unsuccessful, even if the condemnor prevailed on intermediate steps in the case.
  • Work that may not appear to have been recorded separately was in fact separated (there were two concurrent condemnation attempts, and two appeals).
  • Under section 101-27, the property owner is entitled to recover all “costs of court” and is not subject to a “reasonableness” inquiry.

More to follow when the court renders its decision.  Update: forgot to add that the court…

Continue Reading Damages Flowing From A Failed Condemnation: Motion For Reconsideration

Here’s what we’ve been reading today:

  • Connecticut Public Broadcasting Network’s Where We Live show has posted a mp3 of an interview with Jeff Benedict, author of “Little Pink House,” the book about Kelo v. City of New London. More about the book here.

Continue Reading Monday Eminent Domain Round-Up

A state law providing that airport boards may exercise the powers of the municipalities which appoint them, but which also requires a condemnation action by an airport board “be instituted in the names of the municipalities jointly,” prohibits an airport board from instituting an eminent domain suit in its own name. In Spokane Airports v. RMA, Inc., No. 26538-2-III (Apr. 28, 2009), the Washington Court of Appeals held that any condemnation suit filed by the airport board that is not in the names of the municipalities lacks subject matter jurisdiction.

The City of Spokane and Spokane County jointly operate the Spokane International Airport, and formed the Spokane Airport Board to operate it. The airport needed to remove some buildings, including several which were leased to RMA, so the city and the county passed a resolution of taking condemning the leases. The Airport Board, purporting to act pursuant to…

Continue Reading WA Court Of Appeals: Delegations Of Eminent Domain Power To Municipalities Strictly Construed

The Washington Examiner has published an op-ed about McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), petition for cert. filed May 2, 2009, “When the Government Takes Your Money, It Takes Your Property,” by Cato Institute’s Ilya Shapiro and Pacific Legal Foundation’s Lauren Wiggins (who filed an amicus brief urging the Court to review the case).

McClung involves an exaction of money, and not land, as a condition of a development permit. The Ninth Circuit held that legislative exactions are not subject to Nollan/Dolan:

Courts are deeply divided over whether the Fifth Amendment applies tothe taking of property by means of fees such as the ones the McClungswere assessed.  They are also split as to whether legislatively imposedconditions allow a local government to avoid making individualizeddeterminations of a development’s impact.  Courts like the NinthCircuit rely on the fact that the Supreme…

Continue Reading Op-Ed: Money Is Property – Monetary Exactions And Nollan/Dolan