Eminent Domain | Condemnation

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When the one side or the other in the public debate complains about “judicial activism,” they’re usually talking about judges legislating from the bench — finding new rights, reading words into statutes that aren’t there, and the like. But that species of judicial activism doesn’t bother us all that much since we rarely see it, and even when we do, we understand that when accomplished incrementally, it is an integral and generally accepted feature of the common law process. Professor Steven Eagle has compared the common law’s gradual evolution to a big ship making a slow turn, and we think that’s an evocative and apt description. Judges in such a system sometimes do things like that, so that kind of judicial activism doesn’t truly get under our skin. 

No, the “judicial activsm” that bothers us is what the Second Circuit did in the the latest chapter in an issue we’ve been following…

Continue Reading Circuit Split Alert: Second Circuit Says Williamson County Ripeness Applies To Due Process

By statute, California property owners have four years to . Proposition 13 is the ____.

In Olive Land Industrial Park, LLC v. County of San Diego, No. D063337 (July 18, 2014), the Court of Appeal held that 

A nonmandatory interpretation of the time limitation also promotes the
constitutionally-mandated just compensation principles governing eminent domain
proceedings, which—by virtue of governmental action and through no choice of the
property owner—create the need for the property owner to purchase replacement
property. Absent application of Article XIIIA, the property owner remains
uncompensated in the event the property taxes on the replacement property are higher
than on the property taken by the government. Construing the time limitation in section
68 as nonmandatory advances the intent of the voters to incorporate increased property
taxes within the just compensation formula in eminent domain transactions.

Slip op. at 17.

Accordingly, we interpret section 68 to implicitly allow…

Continue Reading Cal App: It’s Not An Owner’s Fault It Needs Replacement Property After Condemnation – Request For Prop 13 Base-Year Value May Be Made After Four Year Time Deadline

Here’s an interesting one from the Georgia Supreme Court. In Dillard Land Investments, LLC v. Fulton County, No. S13G1582 (July 11, 2014), the court held that a condemning agency could not voluntarily dismiss an eminent domain action, after a special master has entered a just compensation award but before the agency has paid the award into the court.

Georgia eminent domain can take one of three tracks. There’s the “assessors method,” the quick take, and the “special master method.” The Dillard case involved the latter, under which the court appoints a master to quickly hold a hearing, after which the master determines the just compensation owed the property owners and files her award with the court. Anyone dissatisfied with the award may appeal for a de novo jury trial. If no appeal is filed, the court enters a judgment. The issue in the case was whether the condemnor could…

Continue Reading Georgia: No “Condemnor’s Remorse” After Special Master Determines Just Comp

To those of you who joined us at the ABA’s Land Use, Planning, and Development Forum, thank you. Here are links to some of the topics I mentioned: 

Those of you who couldn’t make it can get the recording on CD or mp3 here in a couple of weeks, once it is produced.  

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Alabama: Recovering Compensation When The Govt Floods Your Land With Contaminated Water Is

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Continue Reading Links From Today’s Land Use, Planning, And Development Forum

Here’s what caught our attention today:

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Continue Reading Friday Round-Up: Eminent Domain, Cal Food Fight Ends (Maybe), Midwest Flooding

Here’s more on a post in May in which we suggested you should get your hands on a copy of Professor Gideon Kanner’s latest article, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014). He writes about the role of eminent domain as one of the six factors contributing to urban flight and depopulation of major cities such as Detroit. Unfortunately, we could only post a reference to the article, but not the article itself.

Now we can. Here it is. It is a quick and enlightening read.

Related articles
Why We Fight: An Interview With Gideon Kanner, “A Fierce Advocate for Just Compensation”
New Article Of Note: The Role Of Eminent Domain Abuse In Detroit’s Downfall
Use Eminent Domain To “Redevelop” A Sports Franchise, And Take It From An Undeserving Owner?
Professor Kanner On Justice Ginsburg’s Eminent Domain Illiteracy
Gideon’s Trumpet Continues to Sound

Continue Reading Kanner: Detroit and the Decline of Urban America

Like a visiting relative who won’t go home, the idea to seize underwater-but-performing mortgages is still hanging on. The llatest chapter is brought to us by way of our New York colleague Mike Rikon, who writes:

At a press conference on the steps of City Hall, City Council members and housing advocacy groups called on the Mayor to help homeowners who are at risk of foreclosure. Such help would come in the form of using eminent domain to “buy back mortgages where homeowners owe more than their houses are worth.”

According to a CBS report on June 25, 2014, “under the proposed plan, City government would purchase the mortgages from banks and refinance them to match the home’s value to prevent foreclosure.” 

Mike notes that nearly two years ago (and several times since), we suggested that this plan was not clearly legal, and even if it were, was not…

Continue Reading Farpotshket Alert: Plan To Take Mortgages By Eminent Domain Is Back

Update: Here’s a story on the case from the Sacramento Bee (“State Supreme Court to rule in Delta property-rights case“). See also “Property Reserve on Hold: Supreme Court to Review Eminent Domain Right of Entry Statutes” from Brad Kuhn at the California Eminent Domain Law Report.

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Thanks to our New York colleague Mike Rikon at Bulldozers at Your Doorstep, we’ve come to learn that on June 25, 20154, the California Supreme Court agreed to review a very important eminent domain case, Property Reserve, Inc. v. Superior Court, 224 Cal. App. 4th 828 (2014).

That’s the case in which the Court of Appeal held that California’s entry statute (Cal. Civ. Pro. Code § 1245.010 et seq.), was unconstitutional because it allowed an uncompensated taking. We summarized the Court of Appeal opinion here.

California’s entry statute is much like similar provisions in other…

Continue Reading Cal Supreme Court To Review Eminent Domain Entry Statutes – A Free Pass, Or A Taking?

The Utah DOT took all 15 acres of Carlson’s property even though it needed only 1.2 acres for the project. Why? Because it wanted to “avoid[] litigation regarding Carlson’s severance damages.” Well, that’s mighty good of them to want to keep it simple.

Carlson, however, objected on two grounds. First, he asserted that a Utah statute (Utah Code § 72-5-113) did not authorize excess takings. Second, he asserted that the DOT did not have a public use in taking the excess. The trial court rejected his statutory argument, and did not address his constitutional claim.

In Utah Dep’t of Transportation v. Carlson, No. 20120414 (June 24, 2014), the Utah Supreme Court affirmed the trial court’s rejection of the statutory claim, but concluded that Carlson’s constitutional challenge was a “serious one.”

Although we agree with UDOT’s statutory position and thus affirm that aspect of the district court’s decision, we…

Continue Reading Utah: “Serious” Question Whether Excess Taking Is For Public Use

Little-pink-house

Little Pink House, Jeff Benedict’s book about the Kelo v. City of New London case, looks like it is going to become a feature film. 

Earlier, we heard it was going to be a TV (Lifetime) movie with Brooke Shields in the protagonist role, but it appears that they’re going for your local multiplex or arthouse instead, according to an op-ed in USA Today with the interesting title of “Culture can help tame eminent domain abuse” (“We are producing a feature film based on Kelo’s historic saga, and we hope to achieve some of the impact garnered by Erin Brockovich, another underdog film about a real-life working-class woman.”).

The authors, producers of the film, suggest that if only the public knew about Susette Kelo’s story, attitudes would shift about eminent domain abuse:

Erin Brockovich showed how culture can elevate otherwise obscure issues to…

Continue Reading Kelo On The Silver Screen: “Culture can help tame eminent domain abuse”