Eminent Domain | Condemnation

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Update: More here.

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Today, I have the great pleasure of welcoming Dwight H. Merriam, a partner with the Robinson & Cole firm, as the Connecticut member of Owners’ Counsel of America. OCA is the nationwide network of the most experienced eminent domain and property rights lawyers who, as noted in a recent brief, “seek to advance, preserve and defend the rights of private property owners and thereby further the cause of liberty, because the right to own and use property is ‘the guardian of every other right‘ and the basis of a free society.” OCA has one member per state.

Readers of this blog should know Dwight well. He frequently forwards items of interest to post, was a co-author of a recent brief in the New York rent control case, has authored chapters in the seminal eminent domain treatise Nichols on …

Continue Reading Welcome To Dwight Merriam, New Owners’ Counsel Of America Member

For those who listened in to the just-concluded “Recent Developments in Eminent Domain” teleconference, thank you. Here are the links to the cases and briefs that we discussed that were not included in your written materials. Also, click on the link above to order the audio CD of the program if you missed out.

  • Are interlocutory public use determinations immediately appealable? Some courts say no. Others say yes. 
  • More on the California Supreme Court’s opinion validating the legislature’s elimination of redevelopment agencies. Follow the issue at the California Eminent Domain Report. 

Continue Reading Links From Today’s Eminent Domain Teleconference

Mark your calendars for next Tuesday, July 17, 2012, at 1:00 p.m. Eastern (noon CT, 11:00 a.m. MT, 10:00 a.m. PT, 7:00 a.m. Hawaii Time) for “Recent Developments in Eminent Domain,” a live audio program sponsored by Lorman Education.

It’s a 1.5 hour teleconference discussing some of the more important recent court decisions about our favorite topics, eminent domain, inverse condemnation, and regulatory takings.

I’m the sole faculty member, so you get to hear me chatter for about an hour and fifteen minutes, and we’ll save 15 minutes or so for questions. I’ll be covering the latest in public use, just compensation, and related topics. Here is the registration and CLE credit information. Hope you can join us. Continue Reading Upcoming Teleconference: Recent Developments In Eminent Domain

No, not another case from the Hawaii courts, but from an island further afield, Saipan in the Northern Mariana Islands.

We were going to do a write-up of Commonwealth v. Lot No. 353 New G, No. 2012-MP-06 (CNMI June 28, 2012), but Gideon Kanner beat us to it. Read the opinion, and his summary of what happens in the CNMI when the government takes property but doesn’t pay for it for 15 years.

Commonwealth v. Lot No. 353 New G, No. 2012-MP-06 (June 28, 2012) Continue Reading Eminent Domain, Island Style

5310412_bigJust published: the ABA Section of Litigation (Condemnation, Zoning, and Land Use Committee) has released The Law of Eminent Domain — A Fifty State Survey (First Chair Press 2012). This book is a “single resource for eminent domain practitioners … a reference for questions about eminent domain and condemnation procedure in every state and the District of Columbia.” It’s a handy desk reference for how common issues in eminent domain are handled in each jurisdiction. Each state chapter covers the same topics:

  • Who is Eligible to Condemn?
  • What can be Condemned?
  • The Condemnation Proceedings
  • Procedure to Challenge Condemnation
  • Inverse Condemnation
  • Just Compensation Issues
  • How are Various Ownership Interests Treated?
  • Abandonment
  • Attorney’s Fees and Costs

We authored the Hawaii chapter. Our Owners’ Counsel of America colleague Bill Blake served as the editor, and many of our friends and colleagues from across the nation authored their state’s chapter. It’s a great reference…

Continue Reading New Book: The Law of Eminent Domain (A Fifty State Survey)

In Eminent Domain and the Obamacare Decision, Gideon Kanner also looks for the eminent domain angle in the recent opinions on the legality, vel non, of the ACA. In particular, he challenges the casual assetion in Justice Ginsburg’s opinion that eminent domain an “unwanted sale,” that there is such a thing as an “inactive landowner,” and that necessity has anything to do with a federal condemnation action.

Check it out, if you haven’t had your fill of Obamacare news. On second thought, belay that order: check it out even if you have had your fill. Continue Reading Professor Kanner On Justice Ginsburg’s Eminent Domain Illiteracy

We haven’t followed the Obamacare cases except as interested observers, and have largely avoided digging deep into the opinions, preferring to allow minds immeasurably superior to ours to provide the high-altitude view. However, we naturally scanned the majority opinion for any tie-in to our favorite topic, eminent domain.

Starting on page 33, the Chief Justice writes about the “functional” approach to legislative labeling, pursuant to which the majority concluded that the requirement to purchase insurance (the “mandate”) was a constitutional exercise of Congress’ taxation power, even though Congress did not call it a “tax,” and indeed packaged and sold it as anything but a tax. The majority concluded, “[t]hat constitutional question [is] not controlled by Congress’s choice of label.” Slip op. at 34. The opinion then provides examples where the Court held that particular exactions “not labeled taxes nonetheless were authorized by Congress’s power to tax,” because the Court…

Continue Reading Does The “If It Looks Like A Tax And Walks Like A Tax, It Is A Tax” Rule Apply To Public Use?

Thanks to the Land Use Prof Blog for getting the word out about the most recent documentary from filmmaker Gary Hustwit, “Urbanized,” which will have its Hawaii premier this weekend as part of Interisland Terminal‘s “Manufacturing Reality” film series.

The film examines how cities are designed — whether on purpose or though usage — and what works and what doesn’t. It covers a range of issues: zoning, architecture, mass-transit, sewage, redevelopment, sprawl, smart growth, and economic inequality. Urbanized features planners, architects, artists, and lawyers (including colleague Grady Gammage, Jr., with a different perspective on “sprawl” in Arizona), discussing their visions of urban design.

From the film’s description page:

Urbanized is a feature-length documentary about the design of cities, which looks at the issues and strategies behind urban design and features some of the world’s foremost architects, planners, policymakers, builders, and thinkers. Over half the world’s population …

Continue Reading Honolulu Premiere: “Urbanized” – Designing Cities, Working Cities

A must read: our Owners’ Counsel of America colleague Michael Rikon, the doyen of New York’s eminent domain bar, has published “I Represented The Devil Of Brooklyn,” in the Practical Real Estate Lawyer. As Mike writes, “it wasn’t a demonic fight in front of the hot dog line at Nathan’s in Coney Island … this legal tale is about a property owner in Prospect Heights who had the absolute gall to object to the taking of his property for an arena and related real estate development by a well-connected real estate developer.”

If that sounds familiar, it is: Mike represented Daniel Goldstein, the plaintiff-in-chief in the multi-jurisdiction Atlantic Yards eminent domain fight, and the protagonist of the documentary Battle for Brooklyn in the final condemnation case in New York’s courts. Other lawyers had handled Goldstein’s attempt to stop the condemnation and the environmental challenges, and…

Continue Reading “I Represented The Devil Of Brooklyn”