Eminent Domain | Condemnation

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It’s pretty easy to blog about cases in which your side prevails, but not so easy when you don’t. This post is one of the latter instances. In County of Hawaii v. C & J Coupe Family Ltd. P’ship, No. 29887 (Nov. 10, 2010), a unanimous court in an opinon authored by Justice Acoba concluded:

This case is the post-remand sequel to County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Hawaii 352, 198 P.3d 615 (2008) [hereinafter, Coupe I]. In that case, this court reviewed two condemnation actions (Condemnation 1 and Condemnation 2) brought by Plaintiff/Counterclaim Defendant-Appellee County of Hawaii (the County) to condemn property belonging to Defendant/ Counterclaimant-Appellant C&J Coupe Family Limited Partnership in Civ. No. 00-1-0181K and Defendant/Counterclaimant/Cross Claimant-Appellant in Civ. No. 05-1-015K (Coupe). In the instant appeal, we hold that (1) the County’s asserted public purpose for Condemnation 2 was not a…

Continue Reading Hawaii Supreme Court: No Per Se Rule In Pretextual Takings

Professor Gideon Kanner has a recurring feature on his eminent domain law blog Gideon’s Trumpet called “Lowball Watch” in which he points out cases in which the condemnor’s offer is below — way below— the eventual compensation awarded to a property owner.

Thus, we’re looking forward to his thoughts on the latest case from the California Court of Appeal (3d District) which held that for purposes of California’s statute awarding attorneys fees to property owners when the condemnor’s offer is “unreasonable,” an offer which is 38.8% of the eventual compensation fixed by the jury is unreasonable as a matter of law. Tracy Joint Unified School Dist. v. Pombo, No. C061239 (Oct. 29, 2010).

California’s eminent domain statutes provide that a property owner is entitled to litigation expenses in defending an eminent domain action if the condemnor’s final pretrial offer of compensation is “unreasonable.” Cal. Code of…

Continue Reading Cal Ct App: Condemnor’s Offer Of 40% Of Compensation Ultimately Awarded Is Per Se Unreasonable

The Institute for Justice, the Cato Institute, and the Beckett Fund for Religious Liberty have weighed in on Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not…

Continue Reading One More Amicus Brief In Columbia Eminent Domain Case: Court Should Clarify “Pretextual Taking”

New York State Senator Bill Perkins has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010)

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate…

Continue Reading Another Amicus Brief In Columbia Eminent Domain Case: Redevelopment Takings “[D]isproportionately impact … racial and ethnic minorities.”

The Pacific Legal Foundation has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate Division…

Continue Reading Amicus Brief In Columbia Eminent Domain Case: What Level Of Scrutiny Does Kelo Require?

Here are the slides that I used and links to the cases I discussed in “The Whacky and Wonderful World of Eminent Domain After Kelo.”

My presentation was entitled “Schlimmbesserung – Eminent Domain for Redevelopment.” Schlimmbesserung is one of those wonderful German compound words that have no direct translation into English, and means “worsening by improvement.” That term summed up for me how several of the more notorious efforts to use eminent domain in redevelopment efforts have fared (e.g., Poletown, Kelo). Professor Gideon Kanner recently posted some thoughts on “redevelopment blunders” here. The Owners’ Counsel of America’s blog has a summary of the seminar here.

Joining me on the panel was Andrew W. Schwartz, a partner in San Francisco’s Shute, Mihaly & Weinberger, who suggested that redevelopment was good, and that eminent domain was a necessary part of the process when market forces break…

Continue Reading Materials And Links From The Webconference “Eminent Domain After Kelo”

Eminent Domain NYC There was a time when eminent domain lawyers practiced in relative obscurity. Other than a select few, not many knew about condemnation or eminent domain law, or regulatory takings or inverse condemnation. 

But ever since the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), which permitted the taking of a nonblighted home for economic redevelopment (someone else might make more economically productive use of your property than you do), “eminent domain” has become a household word.

These days, it even inspires art.

Brooklyn artist Bettina Johae’s new project is “eminent domain: nyc.” Here is the artist’s description:

Bettina Johae’s project, “eminent domain, nyc” (2010), investigates the use of eminent domain—for public and for private use—in New York City over the past centuries: from the creation of Central Park and the forming of New York’s streets in the 19th century, via…

Continue Reading Art Imitates Life In eminent domain: nyc

An opinion worth reading from the Missouri Court of Appeals on the relationship between an action in trespass and eminent domain. Sterbenz v. Kansas City Power and Light Co., No. WE71776 (Oct. 5, 2010) discusses the liability of a utility company for the installation of an underground utility line without an easement.

The Sterbenzes discovered that the utility company was installing a conduit on their land and informed the utility that it had no easement to do so. The utility offered to purchase an easement, but the Sterbenzes refused, and filed suit for trespass, among other claims. The utility countered by filing an eminent domain lawsuit against the Sterbenzes to condemn an easement. “The eminent domain action was stayed by agreement pending disposition of the Sterbenzes’ lawsuit. In fact, though not disclosed in the parties’ briefs, the record on appeal indicates that the parties stipulated to be bound by…

Continue Reading Trespass And Eminent Domain Compared

We knew that, but in case you didn’t take our word for it, here’s a judge from the New York Supreme Court’s Appellate Division to tell it like it is. In Uptown Holdings, LLCC v. City of New York, No. 2882 (Oct. 12, 2010), 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:

Relying on Kelo v New London (545 US 469 [2005]), petitioners contend that the public benefits are illusory and speculative because there is no carefully considered, integrated development plan to which a developer is contractually bound. However, Kelo does not say that land may be condemned only if there is such a plan. Moreover, the Court of Appeals’ decision in Matter of Aspen Cr. Estates, Ltd. v Town of Brookhaven (12 NY3d 735 [2009], cert denied…

Continue Reading NY Appeals Judge: “[T]here is no longer any judicial oversight of eminent domain proceedings.”

11.LULHI Mark your calendars for January 13 and 14, 2011 for the 5th Hawaii Land Use Law Conference, to be held in Honolulu. Yes, it’s a few months away, but this is the Big One, it only comes around every two years, and you don’t want to miss it. 

The program chairs are Professor David Callies and land use attorney Ben Kudo, and they have assembled an expert and diverse faculty, including keynote speaker Professor Gideon Kanner (no stranger to readers of this blog).

  brochure

, which contains all the details and a registration form.

Here’s the program description:

The Hawai`i system of land use is complex and private land use is highly regulated. Attorneys and legal staff, planners, government officials, land owners and developers need to understand the complex federal, state and local requirements and procedures.

An expert faculty of land use practitioners, planners and regulators will explain the…

Continue Reading January 13 & 14, 2011: 5th Hawaii Land Use Law Conference