Eminent Domain | Condemnation

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upFrom Oregon Live comes the report that a Portland attorney who was fighting to keep his office building (a converted Victorian), from being taken, has prevailed.

After a years-long fight in which Randal Acker, a commercial litigation lawyer, vowed to “do eminent domain law for the next two years to save the house” if necessary, the other side relented and allowed him to keep the house in place and decided to build the Portland State Dormitory around it.

Noting the resemblance of the home to the house in the Pixar animated film Up, the lawyer recently had 400 helium filled balloons affixed to its chimney, just like in the film.

Wish we could have been there.

Turns out this did not devolve into a typical eminent domain fight and that positions did not harden, but that reasonable minds prevailed:

Construction on the $90 million College Station [dormatory] started in…

Continue Reading Portland Lawyer Fighting To Keep His Property Goes “Up”

That’s not the most elegant of headlines, but to those of you interested in the valuation of equipment and machinery in eminent domain cases, you’ll like this post.

[Update: more from our Michigal Owner’s Counsel colleague Alan Ackerman at the National Eminent Domain Blog, and from the Rocky Mountain Appellate Blog.]

Thanks to our Owners Counsel of America colleague Anthony Della Pelle for alerting us to the recent opinion of the Virginia Supreme Court about “fixtures” in Taco Bell of America, Inc. v. Commonwealth Transp. Comm’r, No.10-92465 (June 9, 2011).

In eminent domain cases, “fixtures” are generally considered to be part of the property taken, and thus compensable. The issue in the case was whether the trial court should have allowed the jury to make the determination that a restaurant’s equipment were fixtures, or whether the equipment was personal property and thus noncompensable. The Virginia DOT…

Continue Reading Va Supreme Court Thinks Outside The Bun: Use And Intent Keys To Determination Of “Fixture,” Not Moveability

If you hear that property owners should not worry too much when their homes, land, or businesses are targeted for eminent domain because the government has their best interest in mind and will treat them fairly, pay attention to this case. 

Most understand government’s power to take property by eminent domain. (Note: we don’t like the term “right” when speaking of eminent domain, since governments don’t possess “rights” only those powers delegated to them by the people. So while we often use the convenient shorthand “right to take,” it is a misnomer.) But when can the government stop taking property? How about after it settles a case? After it stipulates to judgment?

In Village of Bellwood v. American National Bank & Trust Co., No. 1-09-3115 (June 7, 2011), the Illinois Court of Appeals held that an Illinois statute that prohibits a condemnor from unilaterally abandoning a taking after…

Continue Reading Illinois Ct App: Condemnor Can Abandon Eminent Domain Action, Even After Settling Case

“Kelo, Parents and the Spatialization of Color (Blindness) in the Berman–Brown Metropolitan Heterotopia” by Denver lawprof Tom Romero II.

This article utilizes interdisciplinary methodology and resources to describe the manner by which legally enforced color lines on a local scale became paradoxically proscribed, yet essential to what I call the multi-racial heterotopia. As a consequence of scholars largely having failed to make the link between eminent domain and school integration jurisprudence in the construction of the modern metropolitan United States, the article makes a timely and important intervention to the combined analysis of these most recent Supreme Court cases.

Posted on SSRN here. Topic seems worthy of examination, but what a title!Continue Reading Winner: Best Title For Law Review Article About Kelo (I Think)

My Pacific Legal Foundation colleague and eminent domain scholar Tim Sandefur has posted an analysis of the legislation proposed by California’s redevelopment agencies in reaction to Governor Brown’s call to eliminate them (“California Redevelopment Agencies fight to defend their turf“).

Sandefur deconstructs (or should we say “redevelops”) the agencies’ claim that the bill will “tighten the definition of blight” — 

Section 33031 of the California Health and Safety Code defines the word “blight,” and AB 1250 does not change that section at all. This is problematic because the standards for “blight” are extremely vague: they include things like “nearby incompatible land uses that prevent the development,” “a high crime rate,” or “conditions that prevent or substantially hinder the viable use or capacity of buildings or lots.” What exactly do these phrases mean? Answer: whatever the government says they mean.

AB 1250 does not change these criteria. Instead, it…

Continue Reading Sandefur Redevelops A Proposal To “Tighten The Definition Of Blight”

Rest easy: this post, thankfully, is not about a certain disgraced Congressman, but is about the much more mundane (but interesting to us) issue of how “owner of a business” is defined in the California statute that allows recovery for loss of goodwill in eminent domain.

In Galardi Group Franchise & Leasing, LLC v. City of El Cajon, No. D056737 (June 7, 2011), the California Court of Appeal (4th District) held that Galardi — which authorized Bingham to operate a Wienerschnitzel restaurant via a franchising agreement — is not the “owner” of a business entitled to be compensated for loss of goodwill caused by a taking. See Cal. Code. Civ. P. § 1263.510. However, the court concluded that Galardi might be entitled to compensation as the assignee of the operator’s rights.

Galardi is a franchisor of Wienerschnitzel restaurants (which feature that quintessentially Southern California delicacy, the chili dog).

Continue Reading Cal Ct App: Who “Owns” The Wienerschnitzel?

“Nobody’s gonna remember how long it took. They’re only gonna look and see that it was done.”

     – New York Mayor Michael Bloomberg, on the use of
            eminent domain to build a basketball arena in Brooklyn

Battle for Brooklyn film poster

Earlier this year, at the annual ALI-ABA Eminent Domain law conference, filmmakers Michael Galinsky, Suki Hawley, and David Beilinson screened a rough cut of their documentary about the Atlantic Yards case, Battle for Brooklyn.

At the conference, we interviewed Mr. Galinsky after the showing, but wanted to wait for the film to be finalized before releasing a review. The film is now on the festival circuit and it looks like it is heading to general release in the near future so it’s time for us to actually let you know what we think about it.

If you have been following the many lawsuits and appellate opinions which the project generated…

Continue Reading Movie Review: Battle For Brooklyn

Responding to the recent post on the New York Court of Appeals’ decision in Uptown Properties, George Mason U. lawprof Steven Eagle writes with his thoughts on the concurring opinion by Judge Smith that caused us some dissonance.

Here, with a little editing for layout, are Professor Eagle’s comments:

In your blog for May 20, you express confusion over Judge Smith’s concurring opinion in Uptown Properties. You ask:

Judge Smith, bless him, had the courage to be the lone dissenting voice in Goldstein, although we’ve never quite figured out how the the public use clause in the New York Constitution can provide more protection than the Fifth Amendment’s Public Use Clause as interpreted in Kelo, but at the same time allow a “blight” standard that is so deferential to the agency’s determination of blight that it renders judicial review meaningless. Is he arguing that because…

Continue Reading Professor Eagle Clears Up Our Confusion

Hartman

Update: a follow up from lawprof Steve Eagle  here.

Thanks to colleague Dwight Merriam for pointing out a recent decision that we missed from the Court of Appeals, New York’s highest court. In Uptown Holdings, LLC v. City of New York, 2011 NY Slip Op 01071 (Feb. 17, 2011), the court sua sponte dismissed the appeal because “no substantial constitutional question is directly involved.” We’ve been following the case, in which the Appellate Division held that the city’s Department of Housing Preservation and Development validly condemned property, upholding the taking against a due process and a public use challenge, because Kelo does not require a taking to be part of a comprehensive plan.

Judge Smith concurred in a short statement:

Smith, J. (concurring): I agree that no substantial constitutional issue is presented, because, as the concurring opinion in the Appellate Division points out, this case is controlled…

Continue Reading Now I’m “Frightened And Confused” – New York Eminent Domain Law May Provide More Protection Than The Fifth Amendment, Unless There Is Blight?

Honolulu attorney Jay Fidell (who also produces Think Tech Hawaii) writes a regular column in the Honolulu Star-Advertiser. This week, he focuses on eminent domain in “Governor must insure wind farm moves forward,” where he writes about the proposed wind farm on Molokai, and urges the state to use eminent domain aggressively to take the needed land:

When Abercrombie threatened eminent domain against Molokai Ranch, he unleashed the genie, and the possibility of condemnation is now in play. He gave us a glimpse of a powerful solution to our energy security predicament, and we can’t let it pass.

In our state of islands, land is scarce, and NIMBY is in every back yard. Large landowners want to hold on to their land in hopes of appreciation and because it’s so difficult to find other parcels. So they refuse to sell.

Hawaii has traditionally been reluctant to …

Continue Reading “Make Eminent Domain Imminent” – Fidell On Wind Power