Eminent Domain | Condemnation

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On Thursday, October 21, 2010, from noon to 1:00 p.m. EDT, please tune in for the free web conference “The Whacky and Wonderful World of Eminent Domain After Kelo.”

I’m not sure I can live up to making eminent domain “whacky and wonderful,” but I will be speaking about what the Court in Kelo really decided, and how courts in the intervening five years have viewed the decision. We will be looking at cases from New York, D.C., Hawaii, and Pennsylvania, among others.

Joining me on the panel will be Andrew W. Schwartz, from San Francisco’s Shute, Mihaly & Weinberger. The session will be moderated by John Clapp, Ph.D. of the UConn Center for Real Estate, and Michele Maresca, a land use attorney at Robinson and Cole in Hartford. Here’s the description of the program:

Kelo v. City of New London has been viewed by property rights…

Continue Reading 10/21/2010 Webconference: Eminent Domain After Kelo

In a case that could write the next chapter in the Kelo saga, the property owner recently filed this cert petition asking 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. As we noted in several posts criticizing the decision (see here and here) and in a post lauding the Appellate Division’s decision (which struck down the taking as pretextual), “in other words, ‘blight’ is whatever the agency says it is. Just…

Continue Reading Cert Petition In Columbia “Blight” Case: Are There Any Limits To Eminent Domain In New York?

No, thankfully this post is not about the MTV show, but who owns the new dry sand created when the government “replenishes” beaches. In a case reminiscent of the U.S. Supreme Court’s decision in Stop the Beach Renourishment v. Fla. Dep’t of Envt’l Protection, 130 S. Ct. 2592 (2010), the New Jersey Supreme Court unanimously concluded that a beachfront property owner was not entitled to compensation for the city’s taking of his property — a beach created by the city’s beach replenishment program — because the replenished beach was a common law “avulsion” and therefore belonged to the public.

In City of Long Branch v. Liu, No. A-9-09 (Sep. 21, 2010), as part of a redevelopment project, the city condemned littoral property owned by the Liu family. The parcel was described by metes-and-bounds, with the easternmost boundary being described as the “high water mark of the Atlantic…

Continue Reading Jersey Shore Belongs To The Public, Not Private Owners

We’ve been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners’ Counsel of America colleagues Dennis Dunphy and Jill Gelineau have launched a new blog focusing on condemnation and land use issues in the Pacific Northwest. They are partners in Schwabe Williamson & Wyatt (in Seattle and Portland, respectively) and will focus on condemnation issues in the region.

They’ve actually been blogging since early 2010, but have recently picked up steam.

Check out Schwabeblog: Condemnation. Worth following.Continue Reading New Condemnation Law Blog Focuses On Pacific Northwest

You may have missed the live program, but it’s still not too late to get the podcast of a recent discussion of Stop the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (June 17, 2010), the Supreme Court case about judicial takings and beachfront property. Here’s the course description from ALI-ABA:

In an unusual takings case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the Florida Supreme Court relied on state real property law to conclude that the objecting beachfront property owners lacked a valid property right, and thus the state could “renourish” the beaches. The beachfront owners appealed to the U.S. Supreme Court, asking it to recognize a new doctrine of judicial takings.

On June 17, 2010, the Supreme Court issued its opinion, which may be a partial victory for property-rights advocates. Chief Justice Roberts, and Justices Scalia, Thomas, and Alito all endorsed the idea that…

Continue Reading Another Podcast On The Judicial Takings Case (Stop The Beach Renourishment v. Florida)

Here’s your chance to be a well-known “eminent domain photographer.”

The ABA Section of State and Local Government Law will soon be publishing a Handbook on Eminent Domain, and is need of photographs to illustrate it. We’re looking for high resolution, not copyrighted pictures for the various chapters to illustrate “public purpose,” “inverse condemnation,” “pre-trial,” “trial,” “flooding and erosion,” “valuation,” and “damages.”

We’ve thought of appropriate illustrations for some on that list – e.g., a ball stadium for “public purpose, ” a limited-access highway under construction for “damages,” but the creative readers of this blog may have others. Illustrations from projects that you might have been involved in are one possible source (maps, plans, aerials, so it doesn’t necessarily have to be a photograph); high reso and not copyrighted are the primary criteria.

If you have material you’d be willing to share, send it to the book’s editor, Bill Schiederich…

Continue Reading Call For Eminent Domain Photos For Upcoming ABA Book

We all live under the threat the government may exercise eminent domain and take our property, and must live with that cloud, unless the threat becomes more concrete. Only then can we run to court to complain about it. While the U.S. Court of Appeals for the Seventh Circuit didn’t expressly hold so, that idea underlay its decision in Rock Energy Cooperative v. Village of Rockton, No. 10-1106 (Aug. 10, 2010) (sounds like something out of “The Flintstones,” no?).

In that case, Rock Energy sought a declaratory judgment from the federal district court that the Village does not have the authority to purchase or condemn its property. We leave the details for you to review, but here is the most interesting part of the decision in our view:

We begin with Rock Energy’s eminent-domain theory. The company would like us to believe that its Alliant assets are…

Continue Reading Seventh Circuit: Threat Of Eminent Domain No “Sword Of Damocles,” So Declaratory Judgment Suit Premature

Courts have equitable powers to fashion remedies that the law may not account for, but does a state’s judicial power stretch so far as to allow it to order a property owner to sell an acre of property (at fair market value) to a neighbor who had built an encroaching structure over the property line due to the erroneous words of a surveyor, even though the neighbor could not prove adverse possession or any other theory that would entitle its building to continue to encroach?

In Proctor v. Huntington, No. 82326-0 (Aug. 19, 2010), a deeply divided (5-4) Washington Supreme Court held that even though the encroaching property owner was not entitled to adversely possess the property, the court would order an appraisal of the property, and force the owner to sell it. Our thanks to the Supreme Court of Washington Blog and to our colleagues at the Eminent…

Continue Reading Why Isn’t This A “Judicial Taking?” Washington Supreme Court Orders Property Owner To Sell To Neighbor

It’s always a pleasure when a gifted colleague is recognized, perhaps more so when they are called to public service. Comes word that Cincinnati attorney Matt Fellerhoff has been appointed by Ohio governor Strickland to the state trial bench. Congratulations, Matt!

While we lament his loss to the private bar (Matt has an enviable record in defending property owners in eminent domain cases), we know that the citizens of Ohio are gaining a judge who will render justice impartially and with a strong dose of common sense. We last worked with Matt presenting a session at February’s ALI-ABA eminent domain conference, “Winning Arguments in Challenging the Right toTake and Public Use.” We’re going to miss you, but wish you well on your new venture (and in the upcoming retention election)!Continue Reading Matt Fellerhoff Appointed To The Ohio Bench

Yes, the government took your property. But it wasn’t an exercise of its eminent domain authority. When you don’t pay your tax bills, the government can foreclose on your property, and sell it. Which it did. Inverse condemnation complaint dismissed.

Epice Corp. v. Land Reutilization Auth. of the City of St. Louis, No. 4:07CV00206 (E.D. Mo., Aug. 17, 2010) (“The Court agrees with these courts in finding that the foreclosure of a tax lien
involves the taxing power, not the eminent domain of the government.”). Continue Reading Missouri Federal Court: No Compensation Owed When Property Is Taken By The Tax Power