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More on today’s opinion in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125.

As we noted in our critique of the Atlantic Yards case (Goldstein), New York judges apparently are too “frightened and confused” by allegations that property is not truly “substandard or unsanitary,” so must defer to the agency’s finding:

The term “substandard or insanitary area” is defined as “a slum, blighted,  deteriorated or deteriorating area, or an area which has a blighting influence on  the surrounding area” (Uncons Laws § 6253 [12]). Here, the two reports prepared by ESDC consultants — consisting of a voluminous compilation of documents and photographs of property conditions — arrive at the conclusion that the area of the Project site is blighted. Just as in Matter of Goldstein, “all that is at issue is a reasonable difference of opinion as to whether…

Continue Reading New York Still Has “Unfrozen Caveman Judges” Who Are “Frightened And Confused” By Eminent Domain Blight

The New York Court of Appeals today reversed the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010). The unanimous opinion came swiftly (oral arguments were just under a month ago), suggesting it was not a close call for the court. Here’s the Appellate Division’s opinion.

We haven’t had time to digest it, and there certainly will be a round of analysis and opinion on the case, but here’s the introductory paragraph of the court’s opinion:

In this appeal, we are called upon to determine whether respondent’s exercise of its power of eminent domain to acquire petitioners’ property for the development of a new Columbia University campus was supported by a sufficient public use, benefit or purpose (see New York Const art I, § 7 [a]; Eminent Domain Procedure Law 207 [C] [4]). We answer this question in the affirmative…

Continue Reading There Really Are No Limits To Eminent Domain In New York – Court Of Appeals Reverses The Columbia Case (Kaur)

Most of the time when we think of impact fees and other development exactions, Nollan and Dolan spring immediately to mind. In those two cases, the Court established the requirement that exactions have a reasonable relationship (“nexus”) to some ill caused by a proposed development, and be “roughly proportional” to the impact created by the development.

Absent a nexus and proportionality, an exaction is “not a valid regulation of land use but ‘an out-and-out plan of extortion.'” Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (citations omitted). The Court was worried that absent a nexus and proportionality, impact fees, in-lieu fees, and development exactions were a form of “pay to play” where local governments take advantage of the fact that a property owner seeks development approvals, to leverage land other property or cash to address impacts not caused by the property owner.

However, Nollan/Dolan is not…

Continue Reading Impact Fee Not Reasonably Related To Burden Created By Development
Launch in external player

Missed our live blog of the the New York Court of appeals oral arguments in Kaur v. New York State Urban Development Corp. the case in which the Appellate Division struck down an attempt to take property north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight?”

Well, you’re in luck — the court has archived the video.

Launch the live blog and start the video at the same time and you can follow along with Timothy Sandefur, Mark Murakami, and me as we provide commentary.

To launch the video in a separate window, go here.

Norman Oder has posted an excellent summary of the arguments on Atlantic Yards Report. Worth reading, especially as you follow along with the video.Continue Reading Video Of Columbia Blight Case Oral Arguments (NY Court Of Appeals)

We’ve been busy filing an appellate brief and drafting another, so until now, haven’t had the chance to post up links about Tuesday’s New York Court of Appeals oral argument in Kaur v. New York State Urban Development Corp.

We live blogged the arguments, following along on the court’s video webcast. The court usually posts an archived video of oral arguments, which we expect next week.

Until then, check these out:

Any predictions? The only thing we’re going to predict publicly is that the opinion should be issued by the end of the…

Continue Reading Columbia Oral Argument Recap – Blight, Civic Purpose, And Bad Faith

Today, starting at 2:00 p.m. ET, the New York Court of Appeals will hear oral arguments in Kaur v. New York State Urban Development Corp. In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight.” We analyzed the Appellate Division’s opinion here.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event in the window below. Joining me will be eminent domain scholar and property owners’ advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami.

The briefs are posted below the live blog window.

<p><p><p><p><p><p><p><p><a href="http://www.coveritlive.com/mobile.php/option=com_mobile/task=viewaltcast/altcast_code=8d1b4a3fb2" >N.Y. Ct. of Appeals Oral Arguments in Kaur v. NY State Urban Dev (Columbia

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Continue Reading 2pm ET Today: Live Blog Of Columbia Eminent Domain Arguments (NY Court Of Appeals)

A reminder: on Tuesday, June 1, 2010 at 2:00 p.m. ET, we will be live blogging the oral arguments in Kaur v. New York State Urban Development Corp.

In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight.” The agency appealed to the Court of Appeals.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will be eminent domain scholar and property owners’ advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami. Sign up here for email notification, then on Tuesday, follow along and join in the discussion.

Here are the briefs in the Court of Appeals:

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Continue Reading Reminder: June 1 NY Court Of Appeals Oral Agument In Columbia “Blight” Case

Today, we filed the final briefs in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship,two condemnation appeals presently before the Hawaii Supreme Court arising out of the County’s attemptsto take a Kona family’s property.

We filed this brief replying to the developer’s Answering Brief, and this brief in reply to the County of Hawaii’s Answering Brief.

The Opening Brief which we filed in November 2009 is posted here.

These cases have resulted in two prior reported opinions, County of Hawaii v. C & J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here), which deals with the issue of pretext and public purpose in eminent domain, and County of Hawaii v. C & J Coupe Family Ltd. P’ship, 120 Haw. 400, 208 P.3d 713 (2009) (available here), which held that under Hawaii law…

Continue Reading Final Briefs In Hawaii Eminent Domain Abuse Cases: Pretext, Actual Purposes, And Private Benefit

Aliaba We just wrapped up the annual three-day Festival of Eminent Domain Law, otherwise known as the American Law Institute | American Bar Association’s two CLE conferences, “Eminent Domain and Land Valuation Litigation,”and “Condemnation 101: How To Prepare and Present an Eminent DomainCase.” 

Dana Berliner, Matt Fellerhoff and I spoke about about “Winning Arguments in Challenging the Right toTake and Public Use” in the Land Valuation course, and in the 101course, I presented a session on “Voir Dire: Selecting a Jury in a Post-Kelo Era in a Down Economy” with William Blake and Susan MacPherson.

The depth of talent teaching and attending these courses is unbelievable, so I always learn more at these conferences than I impart. Among the other presenters were our fellow law bloggers Gideon Kanner, Anthony Della Pelle and Edward McKirdy. Internet marketing strategist Jayne Navarre also presented an interesting session on using…

Continue Reading ALI-ABA Annual Eminent Domain Conference Wrap-Up

On Wednesday, Honolulu lost its iconic former Mayor, Frank Fasi. Mayor Fasi will be remembered for a lot of things, but we here at inversecondemnation.com will fondly recall his cheek when it came to exactions and in lieu payments. Two of the more well known examples:

  • During the second wave of investment in Hawaii from Japan, he announced that any golf course developer who wished to obtain permits from the City and County of Honolulu would have to pay a $100 million impact fee. We’re not sure whether anyone ever paid the fee, and we’re pretty sure that even in the days before Nollan and Dolan that a court would cast a skeptical eye towards it, but sometimes you just have to admire the pure audacity of something.
  • In a case involving Queen’s Beach on Oahu’s east shore, the director of Mayor Fasi’s Department of Land Utilization testified that

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Continue Reading Getting The “Goodies” And Honolulu’s $100 Million Golf Course Exaction