Eminent Domain | Condemnation

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Remember the case in which the Fifth Circuit held that a townhome association’s right to collect maintenance fees — recognized as property under state law — is 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.

Well, the townhome association has filed a cert petition, which asks the Supreme Court to review this Question Presented:

The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use without just compensation. U.S. Const. amend. V. In the present case, the United States condemned 14 of 58 properties comprising Mariner’s Cove Townhomes Association, Inc. All…

Continue Reading New Cert Petition: Is The Right To Collect Assessments A Compensable Property Interest?

Mark your calendars: On August 14-16, 2013, ALI-CLE is putting on the annual Land Use Institute. It’s in San Francisco, which is very convenient for those who may be attending the ABA Annual Meeting the week earlier. A good excuse to stay longer.

The Land Use Institute, now in its 29th year, is designed for attorneys, professional planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, and taught by preeminent practitioners, academics, and government officials, has well-earned its role as the most comprehensive land use continuing education program available.

Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities…

Continue Reading Upcoming ALI-CLE Conference: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain, and Compensation

Here’s what we’re reading today (in addition to the four unanimous Supreme Court decisions issued this morning):

Continue Reading Thursday Round-Up: A SCOTUS Losing Streak, Prune Yard II Denied, Mortgage Seizures

Generally, mere offers to purchase are not admissible in eminent domain trials to show the valuation of the property, because they may be speculative, and not related to the question of value. Pennsylvania follows that general rule.

But it’s not an absolute rule, by far. In Lower Makefield Township v. Lands of Dalgewicz, No. 33 MAP 2011 (May 29, 2013), the Pennsylvania Supreme Court (Middle District) held that the Pennsylvania Eminent Domain Code broadened the scope of what is admissible in condemnation cases, “thus easing evidentiary restrictions for determining fair market value of a property.”

The township condemned a farm to build a public golf course on the property. The Board of View determined the value was $3.99 million, and when the parties were not able to agree on compensation, off to a jury trial they went. The owner testified to several offers to purchase the property, including a…

Continue Reading Pa: Offer To Buy Is Admissible In Compensation Trial

Here are links to the cases and other materials we spoke about at today’s teleconference with Professor Dan Mandelker and my OCA colleague Dwight Merriam:

  • Pipeline takings: Texas

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Continue Reading Teleconference Links: Do You Dare Even Say “Eminent Domain” After Kelo?

According to this story (“Eminent Domain and a Horse Slaugherhouse at Wounded Knee?“) the Oglala Lakota Nation has decided to condemn land on the reservation at Wounded Knee, South Dakota to prevent its sale by its current (non-Indian) owner to third parties. The Wounded Knee site is significant for at least two reasons, the infamous massacre by the U.S. 7th Cavalry in the 1800’s, and the 1970’s takeover and months-long armed standoff by AIM.

The case raises unsettled issues. Can the Nation to condemn land owned by non-members? According to an unnamed Indian law expert quoted in the story, it would be “very hard for me to see the tribe pull this off.” What’s the value of the land if it can be taken by eminent domain? The owner claimes to have offers from potential purchasers in the millions, while others claim that the land is worth…

Continue Reading Eminent Domain In Indian Country: Oglala Sioux To Condemn Land At Wounded Knee?

Update: Professor Ilya Somin, a leading eminent domain scholar and author of the definitive articles on post-Kelo reforms, adds his thoughts on the decision here. Here’s a report from the local paper.

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In the wake of Kelo v. New London, 545 U.S. 469 (2005), a majority of states adopted rules about what constitutes a “public use” in eminent domain. Missouri is one of the states that, by statute, now prohibits takings “solely” for “economic development” purposes:

1. No condemning authority shall acquire private propertythrough the process of eminent domain for solely economic developmentpurposes.

2. For the purposes of this section, “economic development” shall mean ause of a specific piece of property or properties which would provide anincrease in the tax base, tax revenues, employment, and general economichealth, and does not include the elimination of blighted, substandard, orunsanitary conditions, or conditions rendering the property or itssurrounding area…

Continue Reading Missouri S Ct Deconstructs Condemnor’s Stated Reasons, Finds Taking Is “Solely” For Economic Development

What we’re reading today:

  • “Battle of the Beach” – about the choices facing Jersey Shore towns in the aftermath of Sandy: “Offer ‘blighted’ areas to big developers or risk a slow decline. Residents worry about losing their homes.” Via the Wall St. Journal.

Continue Reading Monday Round-Up: Casinos, Sandy Aftermath, Mortgage Seizure

Here’s one as cliché as beach cases from Hawaii: an opinion from a Texas court about the meaning of the term “crude petroleum” in the Texas Natural Resource Code. Oil that is. Black gold. Texas Tea. 

It’s also another pipeline case from the Texas Court of Appeals (Ninth District) — the same panel that on the same day held that TransCanada is a common carrier possessing the power of eminent domain. Except in this case, the court held that Crosstex, which held a permit from the Texas Railroad Commission to build a liquid natural gas pipeline is not a common carrier because a pipeline used to transport LNG is not the same as a pipeline used to transport crude petroleum. Crosstex NGL Pipeline, L.P. v. Reins Road Farms-1, Ltd., No. 09-12-00563 (May 23, 2013). 

The case was Crosstex’s appeal from the trial court’s denial of its…

Continue Reading One More Common Carrier Case From Texas: Pipeline Would Transport Liquid Natural Gas, Not “Texas Tea”

At a recent ABA conference, we suggested during our presentation that cases involving pipelines (petroleum, natural gas, etc.) would be “hot topics,” and here’s the latest: in In re Texas Rice Land Partners, Ltd., No. 09-12-00484-CV (May 23, 2013), the Texas Court of Appeals (Ninth District) held that TransCanada Keystone Pipeline, L.P. is a “common carrier” that has the power of eminent domain, and can condemn an easement for its pipeline.

The Keystone Pipeline is a 2,151 mile petroleum pipline from Hardisty, Alberta in Canada, to Port Arthur, Texas, via Illinois and Oklahoma. TransCanada instituted an eminent domain action to take an easement over land being used for rice farming, and the property owners objected, asserting that TransCanada did not have the condemnation power. The trial judge didn’t make a ruling on that issue, but granted immediate possession to TransCanada, concluding that resolution of its ability to take…

Continue Reading Tex App: TransCanada Keystone Pipeline Is Common Carrier With Eminent Domain Power