Eminent Domain | Condemnation

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Here are the other two amicus briefs in support of the petitioner in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012).

That’s the case in which a Manhattan property owner and developer is challenging the compensation awarded by New York courts for a taking near Lincoln Center. The Appellate Division denied the owner the right to present and have considered evidence about the valuation of the property because the court held that 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…

Continue Reading Amicus Briefs In Manhattan Just Compensation Case

Here’s the first of two cases about the recovery of attorneys fees in takings cases.

The first is People ex rel. Dep’t of Transportation v. Superior Court, No. C069391 (Mar. 1, 2012), from the California Court of Appeal, about recovery of fees in eminent domain proceedings.

After a stipulated judgment days before the trial was to commence, the trial court awarded the property owners their litigation expenses under the California statute allowing the court to include those expenses as part of the costs if the condemnor’s offer was unreasonable, and the property owner’s demand was reasonable. Here’s the relevant provision:

If the court, on motion of the defendant made within 30 days after entry of judgment, finds that the offer of the plaintiff was unreasonable and that the demand of the defendant was reasonable viewed in the light of the evidence admitted and the compensation awarded in the proceeding…

Continue Reading Cal Ct App: Property Owners Only Entitled To Attorneys Fees In Condemnation Cases After A Trial

The Stanford Law Review has been doing a good job lately of talking takings. Last week, it published a note about judicial takings and the Stop the Beach Renourishment case. Now comes the Law Review’s online edition with a new essay by Professor Richard Epstein, “Physical and Regulatory Takings: One Distinction Too Many,” about the New York City rent control case up before the Supreme Court on a cert petition. (We posted the cert petition and the amicus briefs in support in the Harmon case here.) Professor Epstein writes:

Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment … The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. …

Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast…

Continue Reading Epstein On Physical And Regulatory Takings (Stanford L. Rev.)

Descendants-kauai After the New York Court of Appeals’ decisions in the Goldstein (Atlantic Yards) and Kaur (Columbia) cases, we opined that there were not many limits remaining on the government’s exercise of eminent domain in that state.

But even after those cases, there’s got to be some limits, no?

Our Owners’ Counsel of America colleague Michael Rikon is currently testing that hypothesis in a case arising from Willets Point, a Queens neighborhood adjacent to Citi Field (new home of the Mets). Mike represents property owners (mostly small businesses) in the case, their public use challenge to the City of New York’s attempt to take their Willets Point properties for “redevelopment.” For more, see Willets Point United, and this video.

The problem is, the city doesn’t have a redevelopment plan, or any plan regarding what it intends to do with the land beyond making it a “lively, mixed-use, sustainable…

Continue Reading Amicus Brief In Willets Point Case: Condemnation For Redevelopment Needs A Plan

Gideon Kanner reminds us of the passing of retired California Court of Appeal Justice Lynn “Buck” Compton, famous of late for his exploits as a hard-charging paratrooper in World War II (L.A. Times story here). Gideon writes about Justice Compton’s time on the bench:

No, we aren’t going to wax lyrical about the high profile criminal cases in which he was involved, first as a prosecutor and later as a judge. We leave that to the popular press. We do wish to note that “Buck” Compton was one of the few — very few — California appellate judges who would give condemnees an even break, and for that he deserves our, and your thanks. He was tough-looking and blunt, but you knew when you appeared before him on behalf of property owners in an eminent domain case that he would listen to your arguments and give them fair …

Continue Reading Justice Lynn “Buck” Compton

In case you are working today (we are), here’s some light reading to distract you:

Continue Reading Saturday Round Up

Today, on behalf of Owners’ Counsel of America, we filed this amicus brief in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922.

Did you know that when the U.S. Supreme Court began applying the rights in the Bill of Rights to the states (aka “selective incorporation”) that it started with the Just Compensation Clause? See Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897). Was that a sign that the Court believed the right to the “full and perfect equivalent” in value when property is taken “for public use” is more important than other rights in the Bill of Rights? Maybe not, but it is a reminder than a vast majority of eminent domain cases do not involve the Public Use issues that have captured the public’s attention in the wake of Kelo v. City…

Continue Reading New Amicus Brief: A Property Owner Need Not Have Development Plans To Show Highest And Best Use

What we’re reading today:

  • Court weighs handling of suit over DOT rules for future highways – North Carolina colleague Matthew Bryant argued an appeal yesterday in the court of appeals regarding the class action-worthiness of a case in which the Dep’t of Transportation effectively blighted a huge swath of land by identifying it as a future highway, and then did nothing to acquire it. More on the appeal (Beroth Oil Co. v. North Carolina DOT) here. 
  • The Federalist Society’s view of the oral arguments in Filarksy v. Delia. We filed an amicus brief for the ABA supporting the petitioner in that case, which involves the availability of qualified immunity for private-practice lawyers who work for state and local governments, but whom are not employed by those entities. 

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Continue Reading Thursday Round-Up

Most of the cert petitions about eminent domain in recent years have focused on the “public use” side of the equation, and not on the “just compensation” side. That’s not surprising, since the Kelo issue (the power to take) has been the object of intense public interest, so much so that as eminent domain lawyers, we no longer pass under the public radar. (We say “most” since there have been a few petitions on the compensation issue, all denied. Here for example.)

But now comes this cert petition (River Center LLC v. The Dormitory Authority of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012)) which presents three questions focused directly on the Just Compensation Clause. It’s a case we’ve been following as it worked its way up through the New York state court system, and it is now ripe for U.S. Supreme Court …

Continue Reading New Cert Petition: Just Compensation For Development Potential, Inequitable Precondemnation Activities