January 2010

Most of the buzz these days about eminent domain is about the “public use” side of the equation — whether a condemor can take property, and the legitimacy of its professed reasons for doing so. Today, however, the U.S. Supreme Court is considering the other side, which makes up a vast majority of eminent domain cases, but does not get nearly the exposure: just compensation.

The Court has been asked to review an 11th Circuit decision about compensation arising out of the federal government’s taking of property located near the Florida Everglades. In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the 11th Circuit held that in calculating compensation, the federal government could take advantage of the fact that the local government’s restrictive land use regulations had severely depressed the value of the acquired property. The property owner alleges the local government imposed the restrictive…

Continue Reading Preacquisition Regulations Depressing Value And The “Scope Of The Project” Rule

The Minnesota Supreme Court today heard oral arguments in Eagan Economic Development Authority v. U-Haul Company of Minnesota. The case asks from where a redevelopment authority derives its eminent domain power. We digested the court of appeals’ decision here.

Update: a report on the argument is posted here.

Here’s the summary of the issues presented from the Minnesota Courts site:

In 2001, the city established Cedar Grove as a tax increment financing district and adopted a redevelopment plan for the district. That redevelopment plan provided that before formal consideration of the acquisition of any property, the city would require a binding development agreement. In 2007, after negotiations to purchase the properties stalled, appellant Eagan Economic Development Authority took the properties by eminent domain. The district court granted the condemnation petitions; the court of appeals reversed, concluding that the economic development authority exceeded the scope of its…

Continue Reading Minnesota Supreme Court Hearing Eminent Domain Delegation Appeal

PICT0319 This post deals with the practical impacts of the Hawaii Intermediate Court of Appeals’ recent decision in Maunalua Bay Beach Ohana 28 v. State of Hawaii,No. 28175 (Dec. 30, 2009). [Disclosure: we filed an amicus brief supporting the property owners,available here.]

First, some background for those who have not been following our recent posts on the November 2009 oral arguments, and the decision.

In 2003, the Hawaii Legislature adopted Act 73 (codifed here and here),which declared that title to shoreline land naturally accretedcannot be registered by anyone except the State, and that only theState could quiet title to accreted lands. Most critically, the Actdeclared that all accretion not registered was State property.

A three judge ICA panel held that Act 73 took accreted land in existence when the Act was adopted. The ICA agreed with the trial court that the Act rewrote the common law…

Continue Reading Balkanizing The Beach: The Practical Consequences Of Maunaula Bay Beach Ohana 28

Waves Can the legislature adopt a law mandating that from here forward, upon an owner’s death, all of her property escheats to the State? Yes, according to the Hawaii Intermediate Court of Appeals. Because the property is not “vested” in future heirs and “may never materialize,” the State is free to take it.

That’s the basic rationale the 3-judge ICA panel adopted in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (Dec. 30, 2009), where the issue was not the right of descent and devise, but whether littoral property owners are entitled tocontinue to own accreted lands. In that case, the court held the legislature was not constrained by the takings clauses of the federal and state constitutions from simply assigning ownership of land which has not yet accreted from littoral property owners to the State. [Disclosure: we filed an amicus brief supporting the property owners, available

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Continue Reading Hawaii Court Of Appeals: Legislative Grab Of The Right To Beachfront Accretion Is Not A Taking