Development agreements

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It appears that the New York Court of Appeals live streams oral arguments, so tomorrow, for the second day in a row, we’ll go live with real-time blogging of an important and fascinating case (today we’re blogging oral arguments in the Hawaii Supreme Court on a land use case).

Starting at 2 pm EDT on Wednesday October 14, we’ll follow the arguments in Goldstein v. New York State Urban Development Corp., the latest case involving the controversial Brooklyn Yards development and Kelo-like claims of eminent domain abuse in an economic development taking.

Go to this pageto check if the viewer window works in your browser, and to sign up foran email reminder as the date approaches. Or, you can just come backhere on Wednesday when we go live at about 1:45 p.m. Eastern time. Thelive window will be the top post on the blog that day.

Continue Reading Wednesday, October 14, 2009, 2 pm EDT: Live Blog Of NY Court Of Appeals Atlantic Yards Eminent Domain Abuse Case Oral Arguments

That now-cliched line from Field of Dreams, “if you build it they will come” (actually, it’s “he will come,” but work with us here) seemed to be the driving force behind the New London Development Corporation’s plans for the Fort Trumbull neighborhood when it wanted to condemn the homes of Susette Kelo and her neighbors. If they condemned, Pfizer would come.

They condemned the hell out of it, but it turns out that it wasn’t the pharmaceutical giant that came, or even Shoeless Joe and his Black Sox. According to a report in the New London, Connecticut paper The Day, birds — killdeer, red-winged blackbirds, mourning doves and others — have come: “Fort Trumbull Neighborhood Is For The Birds.”

WhenSpinoza observed some 350 years ago that “nature abhors a vacuum,” theFort Trumbull peninsula hadn’t seen its first fort yet, let alone anyhints of the…

Continue Reading Field Of (Broken) Dreams In New London?

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the court held that a taking is not immune from judicial scrutiny for pretext or private benefit simply because the property is being taken for a “classic” use such as a road. The court recognized that the recitation by the government of some public benefit to a taking will not insulate it from judicial review if the claim of public benefit is a pretext to hide a private guiding hand. The court remanded the case to the trial court for a review of the record and a determination among other things of whether the County’s claim that it instituted the taking independently stood up, or whether the taking was simply a better-disguised retread of an earlier failed condemnation.

The recent decision by the Hawaii Supreme Court in…

Continue Reading Why Getting Eminent Domain Right Matters

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

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not “finally taken” in acondemnation action when a single condemnation fails or is dismissed,even if the condemnor succeeds in a subsequent — or concurrent –attempt to take the…

Continue Reading HAWSCT: Property Owners Entitled To Attorneys Fees & Costs For Failed Taking, Even If Gov’t Prevails In Intermediate Steps

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

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 Big Island’s West Hawaii Today reports “Both sides claim win in latest ruling” about the Hawaii Supreme Court’s recent opinion in the cases involving the County of Hawaii’s attempt to take the property of a Kona family to meet the County’s obligations under a development agreement with the developer of the Hokulia project.  Disclosure: we represent the property owner in these cases.

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Apr. 21, 2009) (posted here), the court confirmed that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27,including the reasonable attorneys fees and costs it incurs on appeal when its property is not “finally taken” forpublic use. The trial court struck down an attempted taking for a road for lack ofpublic use,

The road, partof a development agreement between the county and…

Continue Reading West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases

Little-pink-houseI was fortunate enough yesterday to attend an event with Jeff Benedict, who spoke about his recently-published book Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here). 

Little Pink House gives the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005). It’s not a dry recounting of the legal issues or the Court’s opinion, but a story of how one property owner’s determination to keep her home ended up in the U.S. Supreme Court, and eventually took on a life of its own. The book has been reviewed in the New York Times and the Wall Street Journal among other places.  Robert S. Poliner, the Connecticut Ombudsman for Property Rights also reviewed the book; we’ve reprinted his review here.

The highlights of Benedict’s talk:

  • The

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Continue Reading Little Pink House Event Report

Thank you to those who were able to join us live for today’s teleconference. Here are the links to the additional cases and other items I mentioned (or wanted to mention) in my session on Public Use and Pretext Update:

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Continue Reading Links From Today’s ABA Teleconference: Hot Topics In Land Use Law 2009