Eminent Domain | Condemnation

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Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

These topics will also be covered:

  • Contractor Licensing Update
  • Planning Update – Development Near the Right of Way
  • Uniform Relocation Act Benefits
  • Rail Development and Property Valuation
  • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

A lot of interesting law review articles published lately, and here’s the latest: William Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738 (2013). As the title suggests, the author argues that for 75 years, the original view was that the federal government lacked eminent domain power, because it was not expressly granted and it “was too great of a power to be granted only by implication.” While this view has not prevailed, he argues this history should be reexamined. Here’s the summary:

It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.

From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories—but not within states.  Politicians and judges…

Continue Reading One More Law Review Article: “Rethinking the Federal Eminent Domain Power”

Much of the interest in eminent domain law since Kelo v. New London understandably has been on the Public Use Clause, but as condemnation lawyers know, a supermajority of the issues in these cases involve the other part of the Takings Clause, the question of just compensation.

The shorthand usually employed is that an owner whose property is taken is entitled to “fair market value,” but that is only part of the equation, since, as the Supreme Court has held, the Just Compensation Clause requires the “full and perfect equivalent” be provided when an owner of forced to give up property for the public good. See Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893).

A newly-published law review article addresses some of those issues, and is worth reading.  Brian Angelo Lee, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).

Continue Reading New Law Review Article On Just Compensation: Property Owners Getting Too Much

Watch Eminent Domain Case: How Can You Take My House? on PBS. See more from Constitution USA with Peter Sagal.

Here’s a video snippet focusing on eminent domain and the Kelo decision, from PBS’s ongoing series on the U.S. Constitution. It’s a somewhat generic view of the issue complete with silly sound effects and graphics, but it does touch on the concept of property rights, and there’s a tour of the former Fort Trumbull neighborhood in New London, currently an overgrown field.

The money quote is from former property owner Michael Cristofaro: “How could those justices in black robes steal our property rights from us? I feel like the Constitution failed me.”

Professor Gideon Kanner adds his thoughts on the video here. Continue Reading PBS’s Constitution USA On Eminent Domain

In In re: Condemnation by PPL Electric Utilities Corp., No. 1389 CD 2012 (Pa. Comm’w May 8, 2013), a Pennsylvania state appeals court held the condemnation of property by a utility for a right-of-way to reconstruct electric lines already existing on the land, needed the prior approval of the Public Utilities Commission. The utility had not sought the PUC’s approval because the the statute does not require approval when seeking to rebuild existing lines, and the utility asserted it only meant to do that (and not build new lines).

The declaration of taking, however, was worded much more broadly, and in addition to the rebuilding, also gave the utility the power to “‘construct, operate and maintain … additional Electric Facilities of any type,'” as “‘from time to time [may] be necessary for the convenient transaction of the business of [PPL],’  including the right to erect new facilities, including…

Continue Reading Pa Appellate Ct: Declaration Controls In Eminent Domain, Not Professed Intent

We generally don’t cover unpublished decisions, but since we’re adding this case to our “to watch” list, we’re making an exception. In 62-64 Main Street, LLC v. Mayor and Council of the City of Hackensack, No. A-3257-11T4 (N.J. Super. May 3, 2013), the Appellate Division of the New Jersey Superior Court held that “the trial judge and the City misapplied our Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007),” when it concluded that the taking of property for redevelopment was supported by a blight finding. The appellate court concluded that the city had not made a factual showing that the properties it wishes to take are in an actual state of “deterioration or stagnation that negatively affects surrounding areas.”

Under the Gallenthin decision, New Jersey courts — unlike the courts in many other states — are not mere rubber…

Continue Reading NJ App: No Blight Proven In Redevelopment Taking

There isn’t a whole lot of eminent domain action in the Ninth Circuit’s opinion in Grand Canyon Skywalk Development, LLC v. Sa Nyu Wa, Inc., No. 12-15634 (Apr. 26, 2013), and the issue the court analyzes is the relative jurisictions of the federal and tribal courts, but it still is an interesting read nonetheless.

The case involves the Hualapai Tribe’s efforts to condemn the rights of the non-Indian developer of that big glass bridge over the Grand Canyon. A dispute arose between the developer and a corporation chartered by the tribe over a revenue-sharing contract, and while the corporation and the developer were arbitrating their disagreement, the tribe instituted an eminent domain action in tribal court to condemn the developer’s “intangible rights in the contract, which practically speaking left [the tribal corporation] in contract with the Hualapai Tribe.” Slip op. at 5. The developer filed suit in…

Continue Reading 9th Circuit: Hard To Complain About Indian Tribe’s Eminent Domain Home Cookin’ When Condemnee Develops Indian Land

Cle-logoFor those of you attending the Virginia Eminent Domain Conference, here’s the expanded papers on “Tough Takings Questions: Regulatory Takings, Zoning Issues and Judicial Takings” and Public Use issues.

Use the password provided at the conference to open the pdf’s. It’s the same p/w for both. If you forgot the password, email me.

For those who did not attend, sorry folks, there are some benefits to coming to a conference! Y’all are going to have to wait for a bit — after a decent interval to allow the attendees to get their money’s worth, we’ll remove the password.

For more about the cases and books we discussed yesterday during my presentation on “Virginia’s Place in National Eminent Domain Trends, check these out:

  • Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005) (gas station rent control, and the demise of the “substantially advance” test as a takings test).

     
    Continue Reading Materials From Today’s Virginia Eminent Domain Conference

    Here’s one to brighten your day, courtesy of the the U.S. District Court for the Middle District of Flordia (that’s Tampa, to all you non-Floridians). In Hillcrest Property, LLP v. Pasco County, No. 8:10-cv-819-T-23TBM (Apr. 12, 2013), the court held the county’s “Right of Way Preservation Ordinance” that allows it to land bank for a future road corridors by means of an exaction (more details on the ordinance below), is “both coercive and confiscatory in nature and constitutionally offensive in both content and operation.” Slip op. at 4.

    We’ve seen this situation before — the government wants to build roads, but it either doesn’t have the money to buy or condemn the necessary property to do so, or it simply figures it can get it another way. The county had such plans, and designated future transportation corridors on its comprehensive plans. In 2005, the county adopted the…

    Continue Reading Fla Fed Ct: Exaction Scheme Is “Constitutional Mischief” To Avoid “Nettlesome Payment of ‘Just Compensation’”

    When the cert petition was filed in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012), we wrote that the case seemed like a good vehicle for the U.S. Supreme Court to revisit the pretext-in-eminent-domain issue it teased us with in Kelo, especially the part about the taking being part of a “comprehensive” eminent domain plan.

    The facts of the case were egregious. The Guam Supreme Court’s opinion reversed the trial court’s conclusion that the taking was unconstitutional. The Guam Government refused to appeal, leaving only the benefitted private party arguing the taking was valid. The petition was well done and highlighted the lower court split in authority. When the respondent waived a reponse, the Court requested one. The petition was supported with an amici brief authored by lawprof Ilya Somin, a noted scholar on public use issues and joined by other legal…

    Continue Reading Sorry, Property Owners. Supreme Court Just Not That Into You