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Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on eminent domain in “Governor must insure wind farm moves forward,” where he writes about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can’t let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it’s so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to …

Continue Reading “Make Eminent Domain Imminent” – Fidell On Wind Power

11.LULHI This Thursday (January 13, 2011) I’ll be leading two sessions at the fifth Hawaii Land Use Law conference at the Ala Moana Hotel in Honolulu. This conference takes place biannually, so this is your last chance until 2013 to get updated on the hottest topics, by a stellar faculty.

My sessions will cover Coastal Issues (which includes shoreline boundary, takings, and the U.S. Supreme Court’s Stop the Beach Renourishment case), and Water Issues (which will cover instream flow standards, public trust and private rights, and the Maui Water cases). The conference continues on Friday. Download the brochure here for a complete agenda.

The planning chairs, U. Hawaii Law Professor David Callies (U. Hawaii Law) and Ben Kudo (Imanaka, Kudo and Fujimoto), have assembled a talented and interesting faculty. The keynote speaker will be Professor Gideon Kanner, who will present “Taking a Critical Look at 30 Years of the Supreme Court’s …

Continue Reading There’s Still Time To Register And Attend The Fifth Hawaii Land Use Conference

I’m an alum of Columbia University (LLM, 1995), so I’m on the list to receive the semi-regular emails sent out by the law school and the alumni association, informing me about a recent faculty hire, or containing the latest plea to enhance the endowment.

So today, I get this from University president Lee Bollinger, about the expansion of the Morningside Heights campus. That “17-acre campus” mentioned is the one that is at the heart of the eminent domain case that only yesterday, the U.S. Supreme Court allowed to go forward:

Dear Members of the Columbia Community:

One hundred and fifteen years ago, in 1895, President Seth Low presided over a small ceremony on the new 17-acre campus known as Morningside Heights to lay the cornerstone of Low Library. He already had presciently observed that it might even take a century to build the last building. This past Friday, December…

Continue Reading Amazing: A Summary Of Columbia Expansion That Doesn’t Mention “Eminent Domain”

The Columbia Spectator, the student newspaper of Columbia University has a story about  Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case about the New York State Urban Development Corporation’s attempt to take property for a new Columbia campus, which is up for consideration by the U.S. Supreme Court at today’s conference.

In U.S. Supreme Court to consider hearing M’ville case, the Spectator quotes the property owners and their lawyer:

At stake are the only properties in the expansion zone—from 125th to 134th streets, from Broadway to 12th Avenue—that Columbia does not yet own: Nick Sprayregen’s four Tuck-It-Away Self-Storage locations and two gas stations owned by Gurnam Singh and Parminder Kaur. Under eminent domain, the state would turn the properties over to the University in exchange for market-rate compensation for Sprayregen, Singh, and Kaur.

“The significance…

Continue Reading Columbia Spectator On The Columbia Eminent Domain Cert Petition

SCOTUSblog has listed in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010) as a “Petition to Watch”  (scroll down to the fourth case) for tomorrow’s conference. The results of the conference should be released on Monday morning.

SCOTUSblog has posted most the cert stage briefing, or you can get all of the briefs here. As we noted earlier today, Norman Oder has posted an excellent summary of the issues in the case on his Atlantic Yards Report blog.

While we are talking Tuck-It-Away, check out this column from the Las Vegas Review-Journal, which includes a video (also posted here) of the petitioner Nick Sprayregen, his counsel, New York civil rights attorney Norman Siegel, and New York State Senator Bill Perkins (who filed amicus briefs supporting Sprayregen) after the oral arguments in the New York Court Continue Reading Columbia Eminent Domain Cert Petition Is a SCOTUSblog “Petition To Watch”

On his indispensable blog Atlantic Yards Report, journalist Norman Oder has posted a comprehensive summary of the issues in the Columbia eminent domain case, which is scheduled to be considered at the Supreme Court’s conference this Friday, December 10, 2010.

In In effort to get Supreme Court to hear Columbia eminent domain case, AY precedent and New York practices seen as outliers favoring condemnors, Oder writes:

The Columbia University expansion case should reach a reckoning this week at the U.S. Supreme Court, which, if in the unlikely case it accepts the appeal, could place a check on eminent domain as practiced in New York State.

As I wrote in September, after seeing a surprising Appellate Division victory overturned unanimously by the state Court of Appeals, which relied on its Atlantic Yards decision, Tuck-It-Away owner Nick Sprayregen and the Kaur/Singh family are trying to get to the Supreme…

Continue Reading A Very Good Summary Of The Columbia Eminent Domain Cert Petition Issues

The property owner has filed its Reply to the Brief in Opposition in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010). That’s the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

The New York Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts.

The cert petition poses two Questions Presented:

This Petition should be granted to address two urgent questions arising from the Court of Appeals of New York’s…

Continue Reading Final Cert Stage Brief In Columbia Eminent Domain Case

The week before last, the Hawaii State Bar Association’s Real Property and Financial Services Section held a session on recent developments in land use law of interest to local dirt lawyers.

We were not able to attend (we were teaching a seminar on water law), but our Damon Key colleagues Mark Murakami, Greg Kugle (who Chairs the Section), and Ken Kupchak were able to go, and reported that the following decisions were discussed and debated:

  • County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010). In that case, the Hawaii Supreme Court concluded that state zoning statutes are “environmental laws” as defined in the Hawaii Constitution, and therefore a private right of action exists. We suggested that

…
Continue Reading Land Use And Takings Cases Discussed At The HSBA Real Property Session

It’s pretty easy to blog about cases in which your side prevails, but not so easy when you don’t. This post is one of the latter instances. In County of Hawaii v. C & J Coupe Family Ltd. P’ship, No. 29887 (Nov. 10, 2010), a unanimous court in an opinon authored by Justice Acoba concluded:

This case is the post-remand sequel to County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Hawaii 352, 198 P.3d 615 (2008) [hereinafter, Coupe I]. In that case, this court reviewed two condemnation actions (Condemnation 1 and Condemnation 2) brought by Plaintiff/Counterclaim Defendant-Appellee County of Hawaii (the County) to condemn property belonging to Defendant/ Counterclaimant-Appellant C&J Coupe Family Limited Partnership in Civ. No. 00-1-0181K and Defendant/Counterclaimant/Cross Claimant-Appellant in Civ. No. 05-1-015K (Coupe). In the instant appeal, we hold that (1) the County’s asserted public purpose for Condemnation 2 was not a…

Continue Reading Hawaii Supreme Court: No Per Se Rule In Pretextual Takings

The Institute for Justice, the Cato Institute, and the Beckett Fund for Religious Liberty have weighed in on Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not…

Continue Reading One More Amicus Brief In Columbia Eminent Domain Case: Court Should Clarify “Pretextual Taking”