Eminent Domain | Condemnation

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In City of Dallas v. Stewart, No. 09-0257 (Jan. 27, 2012), the Texas Supreme Court provided a good reminder of the importance of property rights and due process, even when protecting rights may inconvenience the government. In that case, the court held that a determination by a city agency that a home was a public nuisance and should be demolished, was not entitled to preclusive effect (that’s “res judicata” to us Old Schoolers) in a subsequent takings lawsuit by the homeowner.

The facts of the case are pretty straightforward: Ms. Stewart abandoned her house and allowed it to fall into disrepair, and she ignored notices from the city. The Dallas Urban Rehabilitation Standards Board, the agency charged with enforcing the city’s zoning ordinances, concluded that the house was a public nuisance and ordered it demolished. It rejected Stewart’s request for a rehearing and obtained a judicial demolition warrant, after…

Continue Reading Texas: “The protection of property rights, central to the functioning of our society, should not – indeed cannot – be charged to the same people who seek to take those rights away.”

Here are the cases Professor Callies and I discussed in today’s session at ALI-ABA’s Eminent Domain and Land Valuation conference:

  • McCandless v. United States, 298 U.S. 242 (1936) – an offer of proof that irrigation water could be transported to the land was not too “remote and speculative,” and should have been allowed in support of the property owner’s contention that the highest and best use of the land taken was to grow sugar cane.
  • Damon v. Hawaii, 194 U.S. 154 (1904) – when an ahupuaa patent includes the adjacent fisheries, the U.S. Constitution recognizes that interest as “property.”
  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – when a private waterway, recognized as private property under Hawaii law, is modified by private effort and investement into a navigable waterway, the government can only impose a right of public access by condemnation.

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Continue Reading ALI-ABA Annual Eminent Domain Conference, San Diego: “The Role of Hawaii’s Unique Property Law in the U.S. Supreme Court’s Takings Cases”

Here’s what we’re reading today:

  • Oakland budget cuts his zoo, Children’s Fairyland – from the San Francisco Chronicle: “In all, more than $28 million will be sliced from the budget, mostly from the $388 million general fund. The cuts are due to the loss of redevelopment funds, which Oakland used to fund services and programs across the city. ‘It’s not clean and neat. We wish it were,’ said Mayor Jean Quan. ‘For California’s older, larger cities, like Oakland, losing these redevelopment funds has been very, very tough.'”
  • Redevelopment Agencies Facing Default – from Cal Watchdog: “The Legislation canceled the RDAs’ tax increment-financing, which served as their piggy-bank under the Community Redevelopment Law for the past 65 years.  The California Legislature and its crony capitalist allies will desperately try to resurrect new tax and economic incentives to reclaim their ability to interfere in the California real estate markets.”

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Continue Reading Tuesday Round Up: Cal Redevelopment Drawdown To Hurt Animals, Children; Thank You Public Workers For Saving Hawaii

Roxie_logoSan Francisco Bay Areans: come join us at the Roxie Theater (3117 16th Street between Valencia and Guerrero, San Francisco) tonight for screenings of Battle for Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards eminent domain case. Two shows, 7:00 and 9:00 p.m. Details, including ticket purchase here.

I’ll be there to answer questions on the legal aspects of the film, as well as discuss its relevance to California, where redevelopment and eminent domain abuse are front page stories due to the California Supreme Court’s recent decision upholding the Legislature’s abolishment of the state’s 400+ redevelopment agencies.

Also showing is “The Tragedy of Eminent Domain: The destruction and survival of a New York City neighborhood.” This short tells the story of how a project called “Manhattantown” destroyed a historic African-American community on the Upper West Side in the 1950s. Manhattantown set the model…

Continue Reading Tonight: San Francisco Screenings Of “Battle For Brooklyn” At The Roxie

YouvebeentrumpedDonald Trump has more money than you. He’s also a huckster, a self-aggrandizing showman, a judgmental snob, and an eminent domain abuser with more than a hint of mean lying just below the surface. And he has really weird hair.

But we already knew that, and if these are the only insights to be taken from You’ve Been Trumped (Montrose Pictures 2011), the new documentary by director Anthony Baxter, the film would add little to the conversation.

But at its core, You’ve Been Trumped demands more of its audience by posing an essential question: in the “supersized” consumerist culture epitomized by Mr. Trump, is “better” inherently preferable? The film highlights his belief that modest, traditional, and worn-at-the-heels should naturally give way to glitzy, contemporary, and grandiose.

The U.S. Supreme Court sided with Mr. Trump’s philosophy in Kelo v. City of New London, the case where the Court’s majority allowed…

Continue Reading Movie Review: “You’ve Been Trumped” – Is “More” And “Better” Always Preferable?

In Miccosukee Tribe of Indians of Florida v. Dep’t of Environmental Protection, No. 2D11-2797 (Dec. 30, 2011), the Florida District Court of Appeal (Second District) held that land owned by the Miccosukee Tribe was not immune from being condemned by the State o Florida.

The tribe purchased three parcels but did not immediately take action to have the federal government take title in trust for the tribe (which apparently would have protected it). Six years later, it filed a “fee-to-trust” application with the feds, but before the Department of the Interior could take any action, Florida instituted an eminent domain action to take the parcels for an Everglades restoration project. The tribe asserted sovereign immunity, but the court allowed the taking.

The appeals court affirmed, concluding that because a condemnation action is “in rem” (against the land) and not “in personam,” the tribe’s immunity from lawsuits did not extent…

Continue Reading Fla App: Indian-Owned Land Is Not “Aboriginal Land” Immune From Eminent Domain

Here’s what we’re reading today:

  • Blight barons of redevelopment plot comeback – Steven Greenhut (O.C. Register): “As of February, anyway, redevelopment is dead in California, the victim of an absurdly arrogant legal and political strategy pursued by redevelopment’s chief defenders. This is wonderful news, made even better by the teeth-gnashing of public officials who have routinely abused their powers under redevelopment law. Cry me a river. But before I gloat too much, we need to remember that this victory already resembles one of those cheap horror movies where the Evil Thing has been vanquished, and all appears well, then its hand pokes out from the grave just as the credits begin.”
  • RDA Timeline: Hatchet to Fall Feb. 1 – via California Planning & Development Report: “State senators Alex Padilla and Luis Alejo have reportedly introduced Senate Bill 659, which would extend the deadline for agencies’ dissolution for several

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Continue Reading Redevelopment Developments

California followers: be sure to register and join in on Wednesday, January 4, 2012, starting at 2:00 p.m. PST as Rick Rayl, Brad Kuhn (California Eminent Domain Report) and their firm colleagues present a webinar, “Supreme Court Upholds Elimination of Redevelopment in California – Now What?“

This, of course, refers to last week’s California Supreme Court decision upholding the state legislature’s wipeout of the 400+ redevelopment agencies in California. Join in and find out “now what,” and what happens next.

Details here. Continue Reading California Redevelopment Alert: Free Webinar, Wednesday, Jan. 4, 2012

Battle for Brooklyn film poster

Today was the Hawaii premiere of Battle For Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards case. We’re introducing the film and conducting a question-and-answer session after each showing.

Screening information: Tuesday and Wednesday, January 3 and 4, at 1:00 p.m. and 7:30 p.m. each day at the Doris Duke Theater. More information (and ticket purchase) from the Academy of Arts web site here.

Battle-for-brooklyn-flyer

Today’s two screenings were followed by lively questions from the audience. Here are links to the key posts on the case, in the event you want to find out more:

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Continue Reading Hawaii Premiere Of “Battle for Brooklyn” – Oscar-Contending Docfilm Of Atlantic Yards Eminent Domain Fight

At the 2010 ALI-ABA eminent domain conference, Anthony Della Pelle (NJ Condemnation Law blog), Nancy Myrland (social media marketing consultant), and I presented a session on how condemnation lawyers can leverage social media to build their law practices.

This month’s edition of The Practical Real Estate Lawyer includes my short article based on the materials I presented at the conference, The Social Lawyer: New Media Strategies For Marketing Your Eminent Domain Practice (Jan. 2012). 

The Social Lawyer: New Media Strategies For Marketing Your Eminent Domain Practice – The Practical Real Est…Continue Reading New Article: New Media Strategies For Marketing Your Eminent Domain Practice