Eminent Domain | Condemnation

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Check out United States v. 32.42 Acres of Land, No. 10-56568 (9th Cir. June 14, 2012), the case in which the Ninth Circuit held that a federal taking of state land (for a Navy base in San Diego) extinguishes the state’s tidelands public trust, even if the property is later conveyed to a private party. California argued that the state’s public trust lay dormant while the feds held the property, but was “quiescent” and would “re-emerge” upon any transfer from the U.S. to a private party.

We won’t go through the facts of the case (the opinion is short, and an interesting read), but here’s the short story: the feds condemned state-owned land, which was subject to California’s common law public tidelands trust because it was under water at the time of California’s admission to the Union. The state argued that its public trust rights would essentially lie dorman…

Continue Reading 9th Circuit: Federal Eminent Domain Power Trumps Equal Footing Doctrine

In Johnson v. Des Moines Metropolitan Wastewater Reclamation Authority, No. 11-0444 (May 18, 2012), the Iowa Supreme Court held that two separate condemnation cases should not have been consolidated even though each case involved the taking of part of the same parent tract of land from the same landowner. The court concluded that these facts alone were not enough, and that other considerations demonstrated that the cases should be heard separately:

  • different condemnors were taking the parcels – the court rejected the owner’s claim that the taking authorities were “similar”
  • the takings were instituted four months apart
  • different reasons supported each condemnation (one was for a street relocation and to support a nearby airport, while the other was for a sewer connection)

The court rejected the trial court’s determination that the fact the property owner was using the same expert witnesses in both cases created “common issues of fact…

Continue Reading Iowa: Close Relationship Needed For Consolidating Eminent Domain Actions

UtahblogCheck this out: my Owners’ Counsel of America colleague Kevin E. Anderson has a blog on eminent domain and related issues, forcusing on decisions from the Utah state and federal courts, Eminent Domain Review.

It’s not a new blog (Kevin has been posting since at least 2011), but it’s new to us, so we though we would pass it along to you.

Among the categories he covers are the latest cases from the Utah Supreme Court, just compensation issues, and regulatory takings.

We’re subscribing, and so should you.Continue Reading New(er) Eminent Domain Law Blog Worth Following

In Larson v. Sinclair Transp. Co., No 09SC966 (May 21, 2012), the Colorado Supreme Court held that a state statute does not grant a company such as Sinclair the ability to take property for the construction of petroleum pipelines.

The statute, Colorado Rev. Stat § 38-5-105, is not exactly elegant in its wording:

Such telegraph, telephone, electric light power, gas, or pipeline company or such city or town is vested with the power of eminent domain, and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems for such purposes by means thereof. Whenever such company or such city or town is unable to secure by deed, contract, or agreement such rights-of-way for such purposes over, under, across, and upon the lands, property, privileges, rights-of-way, or easements of persons or corporations, it shall be lawful for such telegraph, telephone, electric light power…

Continue Reading Colorado: Company Lacks Eminent Domain Power To Construct Gas Pipeline

Here are the cases we discussed in this morning’s session at the Eminent Domain & Land Use in Hawaii seminar:

  • Brown v. Howard, No 26991 (June 21, 2011), the case in which the South Carolina Supreme Court held that an attorney’s services constitute property, and that property was taken when a trial court refused to let a court-appointed attorney withdraw from defending a criminal case, forcing him to work for a fee capped at $3,500. Here’s the Bar Association’s amicus brief on the issue.

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Continue Reading Links From Today’s Eminent Domain Conference

There is still time to register for the Eminent Domain & Land Use in Hawaii seminar, to be held this Thursday, May 12, 2012, in downtown Honolulu. Along with James Mee, I am leading the session “Eminent Domain Update” in which we will talk about the latest in public use issues from the U.S. and Hawaii Supreme Courts, and other recent developments in condemnation law.

The Chair of the program is my Damon Key partner Mark M. Murakami. Also on the agenda is a session on potential burials issues in the rail project with another Damon Key partner, Greg Kugle, and a session on rail bid protests with Anna H. Oshiro. The final session of the day will be devoted to ethics, so you can get your MCLE credit requirement at least partially fulfilled for this year.

The complete faculty list and agenda is available here…

Continue Reading Honolulu Eminent Domain Seminar – May 12, 2012

Another short one from New York’s Appellate Division (Second Department). In In re Village of Port Chester, No. D34768 (May 1, 2012), the court held that several parcels of land the Village condemned should be treated as a single unit for valuation purposes, and that “unity of use” was established by the property owners because they showed they acquired the parcels in order to put them together to build a CVS store.

The claimants also established unity of use. The record contains testimony as to the claimants’ intention and efforts to acquire the properties as an assemblage for the development of large retail establishment before they had knowledge of a possible condemnation. The record also contains an executed lease (hereinafter the subject lease) between the claimants and Port Chester CVS, LLC (hereinafter CVS), pursuant to which CVS was to construct a new CVS pharmacy (hereinafter the CVS project). Additionally…

Continue Reading Latest Chapter In the Port Chester Takings Case (p.s. You Can’t Destroy Draft Appraisal Reports)

Congratulations to our Owners’ Counsel of America colleague Michael Rikon on the news that New York City has withdrawn its attempt to take his clients’ land in the Willets Point section of Queens.

According to this story, “Michael Rikon, a lawyer representing property owners in Willets Point, challenged the city’s legal bid to condemn property in the Iron Triangle to make way for the first phase of the $3 billion Willets Point Redevelopment Project, which would take the place of the auto shops and pockmarked streets in the neighborhood.”

The New York Observer reports that the city halted the eminent domain proceedings on the eve of the hearing (it was scheduled to be heard next Monday) and withdrew the case from state appellate courts. Remember, in New York, eminent domain actions start in the Appellate Division. We posted the brief Mike filed in the case here, and an amicus brief supporting the property owners here.

Mr. Rikon, an attorney for Willets Point United, a landowner group fighting the city, said that the city faced a tough case because of issues ranging from a failure to have translators at the eminent domain hearing (many property owners are Latino) to not providing notice in person and having no clear public use yet assigned (there was not yet a developer in place at the time of the hearing). “It’s strange, too, because rarely do you win these kinds of cases,” Mr. Rikon said of eminent domain defendants, “but I really think this could have been different.”

His clients, he said, “are pretty ecstatic.” That said, their future remains uncertain as the city owns much of the land in Willets Point now, and whether it wants to remain a landlord to chop shops seems unlikely. “We wish we knew what the city would do with those leases, because they’re commercial leases and the city is under no obligation to renew them,” Mr. Rikon said. “Really, how interested is the city in rental income? Not very.”

Mr. Rikon also said there was no reason the city could not simply hold another eminent domain hearing in the future, correcting any apparent errors, and take the property all over again. He was hopeful that might never happen. “The remediation alone will cost billions of dollars, so is it really worth it?” he said.

Well done, Michael.
Continue Reading NYC Property Owners Victory: Willets Point Eminent Domain Abandoned

The Supreme Court will not be reviewing the case in which a Manhattan property owner and developer was challenging the compensation awarded by New York courts for a taking near Lincoln Center. River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012). 

New York’s Appellate Division denied the property owner the right to present and have considered evidence about the valuation of the property because in order to be admissible, the property owner must be able to show the use it claims is the highest and best use is “established as reasonably probable and not a ‘speculative or hypothetical arrangement in the mind of the claimant,'” and that these plans will “come to fruition” in the near future. The property owner, represented in the Supreme Court by Harvard lawprof Laurence Tribe, argued in its cert petition that the …

Continue Reading Cert Denied In Manhattan Just Compensation Case

How hard is it for the government to obtain a Williamson County dismissal that a federal takings claim is not ripe for federal court reivew? Not too hard, says Justice Souter.

Justice Souter? But wait, didn’t he retire, you ask? Recall that Supreme Court justices who retire from the Court don’t really “retire” in the sense that they may continue to sit and hear cases in the federal courts of appeals. Justice O’Connor has done so, and Justice Souter did so in Efron v. Mora Dev. Corp., No. 11-1347 (Mar. 26, 2012, a case from the First Circuit involving a claim for a regulatory taking in Puerto Rico.

The Puerto Rico highway department condemned Efron’s land, and although he objected, the Commonwealth court transferred ownership and possession to the department. Efron then went to federal court on civil rights claims against the department and Mora Development, alleging that they…

Continue Reading Justice Souter: Dismissal Under Williamson County Is So Easy, A Caveman Could Do It