Eminent Domain | Condemnation

Subscribe to Eminent Domain | Condemnation via RSS

Here’s what we’re reading today:

  • Our Owners’ Counsel colleague from New Jersey, Anthony Della Pelle, has posted some thoughts on the New Jersey Supreme Court’s recent decision in Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013). That’s the case about valuation issues when there’s a partial taking of littoral property in order to erect protective dunes. Tony’s thoughts are well worth reading. 
  • In that vein, on Wednesday, August 14, 2013, starting at noon ET, we’ll be joining Tony and other experts to speak at the New Jersey Institute for Continuing Legal Education’s teleseminar on “Eminent Domain and Regulatory Takings:

…
Continue Reading Wednesday Round-Up: Koontz Recording, Jersey Shore Dunes, Plastic Bag Bans

Update: Here’s more from the San Francisco Chronicle. As you read this and other stories on the issue, this begins to take on an “occupy” tone and a let’s-stick-it-to-the greedy-lenders flavor. Not a good sign for a considered use of eminent domain.

————————————————————–

Like a visiting relative, the proposal to use eminent domain to condemn underwater mortgages just won’t seem to go away. First attempted in large jurisdictions like San Bernardino County, it initially looked like the idea was petering out.

But now it seems like the idea has found traction in smaller municipalities that appear to be equally desperate such as North Las Vegas, and now Richmond, California, which appears on the brink of using its eminent domain power to take mortgages if the lenders don’t take the city’s offer to purchase. See “A City Works to Save Homes By Invoking …

Continue Reading Hey Look, Free Money!

Here’s the amicus brief of Atlantic Legal Foundation which urges the Supreme Court to review the Fifth Circuit’s decision in United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013).

That’s the case in which the Fifth Circuit held that the association’s right to collect maintenance fees, recognized as property under Louisiana law, was not “compensable property” in an eminent domain action. The court held concluded that the “consequential loss rule” governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.

The Association filed a cert petition and was supported by several lawprofs.

ALF’s amicus brief argues:

The decision of the Fifth Circuit below raises the question whether the Takings Clause requires the government to compensate private parties for the lost value of real covenants associated with land it…

Continue Reading One More Amicus Brief In Condo-Assessments-As-Property Case

Here’s the latest from the Wisconsin Supreme Court. In Waller v. American Transmission Co., LLC, No. 2013AP805 (July 16, 2013), the court held that when a partial taking for an easement for transmission lines substantially impaired the economic viability of the remnant parcel, the condemnor is liable for taking the entire parcel.

Gideon Kanner summarizes the opinion in “When Must the Condemnor Take the Whole Parcel, Even Though it Wants to Take Only a Part of It?” (“So we won’t go through the whole megillah in anything resembling detail. But the court’s bottom line is clear: the condemnor — in this case a public utility seeking to take an easement — must take the entire larger parcel and pay for it when the owner so wishes and in the after condition the property, if subjected only to a partial taking, would wind up in an uneconomic condition.”).…

Continue Reading Wisconsin: You Broke It, You Bought It

A coalition of law professors including property law scholars Richard Epstein, James Ely, and Ilya Somin, along with the Cato Institute have filed an amicus brief supporting the cert petition in Mariner’s Cove Townhomes Ass’n v. United States, No. 12-1453 (cert. petition filed June 12, 2013).

That’s the case in which the Fifth Circuit held that the association’s right to collect maintenance fees, recognized as property under Louisiana law, was not “compensable property” in an eminent domain action. In United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), the court held concluded that the “consequential loss rule” governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.

The Cato/lawprofs’ brief argues:

By adopting the minority view in the split among the circuits and the States, the Fifth Circuit’s…

Continue Reading Lawprofs’ Amicus Brief: Townhome Association’s Right To Collect Assessments Is A Compensable Property Interest

Update: From the July 13 WaPo: As Wal-Mart threatens to walk, what’s next for a dying shopping center? (“The Skyland Shopping Center in Southeast Washington is amost dead. Shops are shuttered and windows broken.” Gee, we wonder why?). See also Gideon Kanner’s thoughts on the story at “Another Kelo Case in the Marking?”

————————————————————————-

You remember the Skyland redevelopment project in Washington, D.C., don’t you? That’s the one we’ve covered before, which has resulted in boocoo court decisions, most of them unfavorable to the small property owners whose businesses were considered “blighting factors” to the surrounding area, and thus stood in the way of a redevelopment project coveted by the city fathers and mothers. See DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. National Capital Revitalization Comm’n, 930 A.2d…

Continue Reading If This Wasn’t So Depressing (And Predictable), It Might Be Funny

We’ve been offline for a few days, but wanted to pick up this decision in an important case we’ve been following about the valuation of protective dunes on the Jersey Shore, and general and special benefits.

In Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013), the New Jersey Supreme Court held that a jury is entitled to determine whether the diminution in value caused by construction of barrier dunes on private property, which block the view of the owners and thus must be compensated, can be offset by claimed special benefits by the dunes to the property. The Borough asserted that the dunes resulted in special protection to the property, and enhanced its value. The intermediate appellate court held that the Borough’s evidence was not admissible, but the Supreme Court reversed.

As reported by the New York Times:

They are “waiting for the good old…

Continue Reading New Jersey: Dunes That Protect Everyone Get Paid For By A Few

Another date to save on your calendar: the 2014 Conference of the International Academic Association on Planning, Law, and Property Rights will be held from February 11-14, 2014 in Haifa, Israel, at Technion-Israel Institute of Technology. The Conference will include the usual presentations, plus day-long workshops, and excursions. You don’t need to be a PLPR member (although joining is free), nor do you have to be an “academic.”

We attended the 2013 PLPR Conference in Portland, and it was well worth it. The message of PLPR is “Planning matters. Law matters. Property matters,” and the 2013 Conference delivered, with presentations on those topics with an emphasis on international practices.

The 2014 event is chaired by Professor Rachelle Alterman, who, among other accomplishments, edited Takings International (2010), a book our ABA Section published that is a comparative study of how what we call regulatory takings are treated worldwide.

Continue Reading 2014 Planning, Law, And Property Rights Conference – Haifa

We’ve commented on the various plans (mostly backed by a private venture capital outfit out of San Francisco) to have local municipalities seize underwater-but-performing morrtgages by eminent domain (see here and here, for example). Apparently the brainchild of Cornell lawprof Robert Hockett and sold as a “no lose” situation (see “Paying Paul and Robbing No One: An Eminent Domain Solution for Underwater Mortgage Debt“), the city of North Las Vegas was the first municipality to bite.

Yesterday, chapter 2: someone named “Gregory P. Smith” filed suit in federal court seeking to invalidate the plan. The complaint seeks declaratory and injunctive relief for violations of the Public Use Clauses of the U.S. and the Nevada Constitutions, the Due Process Clauses, the Contracts Clause, the Commerce Clause, and Nevada eminent domain statutes.

Who is Smith, and how does he have standing? We’re not sure, because…

Continue Reading It Begins: Plan To Seize Underwater Mortgages Challenged In Federal Court