Eminent Domain | Condemnation

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What we’re reading today – not all of it property or land use law related:

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Continue Reading Friday Round-Up: Kagan On Property, RLUIPA, Second Amendment, CEQA, And Title VII (Yes, Title VII)

Think property rights are a “conservative” issue? To challenge that notion, read Black Landowners Fight to Reclaim Georgia Home in today’s New York Times. It tells the story of African-American property owners whose homes were condemned years ago, who now may have a second chance:

In 1942, Harris Neck, a thriving community of black landowners who hunted, farmed and gathered oysters, was taken by the federal government to build an airstrip. Now, the elders — who remember barefoot childhoods spent climbing trees and waking to watch the Canada geese depart in formation — want to know why they cannot have it back.

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Harris Neck was deeded by a plantation owner to a former slave in 1865. Black families who settled there built houses and boats and started crab and oyster factories. But the community, many descendants suspect, was too independent for the comfort of McIntosh County’s whites.

During…

Continue Reading Are Property Rights A “Conservative” Issue?

Here are items we’re reading today, in no particular order:

  • Bill Ward’s thoughts on Klumpp v. City of Avalon, the recent New Jersey Supreme Court case about inverse condemnation and beach restoration. Our take here.

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Continue Reading Wednesday Potpourri: Inverse Condemnation And Beaches, Rail Takings, And More “Adult-Oriented” Land Use

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Here’s the latest development in the ongoing life imitating art saga of the the use of eminent domain to take property in St. Johannes Cemetery for the expansion of O’Hare airport.

Appellate court hears arguments in O’Hare cemetery case is a short news report about last week’s oral argument in the appeal by the “living relatives” from an Illinois state court’s judgment dismissing their claims.

Listen to the argument recording here (be warned if you aren’t streaming the file, it’s a massive 140mb mp3).

The issues, as framed by the living relatives, are two-fold: first, whether the religion-based claims were barred by res judicata, and second, whether the taking is for a public use. It’s often very difficult to discern the scope of the issues from oral argument, so we’re not sure what the specific questions presented are. Nonetheless, the argument is worth a listen. Continue Reading They Really Are Moving Father’s Grave To Build … An Airport

Today’s U.S. Supreme Court plurality opinion in the long-anticipated Second Amendment case, McDonald v. City of Chicago, No. 08-1521

In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado  v.  California, 110 U.S. 516 (1884) (due process does not require grand jury indictment);  Chicago, B. & Q. R. Co.  v.  Chicago, 166 U.S. 226 (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted. 

First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See  Twining  v.  New Jersey  , 211 U. S. 78, 99 (1908) .

Second, the Court explained that the only…

Continue Reading Takings, Guns, And Incorporation

Here’s a round-up of reports and analysis of yesterday’s opinion by the New York Court of Appeals in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125:

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Continue Reading Friday’s Columbia “Blight” Case (Kaur) Links

More on today’s opinion in the “Columbia U. blight” case, Kaur v. New York State Urban Development Corp., No. 125.

As we noted in our critique of the Atlantic Yards case (Goldstein), New York judges apparently are too “frightened and confused” by allegations that property is not truly “substandard or unsanitary,” so must defer to the agency’s finding:

The term “substandard or insanitary area” is defined as “a slum, blighted,  deteriorated or deteriorating area, or an area which has a blighting influence on  the surrounding area” (Uncons Laws § 6253 [12]). Here, the two reports prepared by ESDC consultants — consisting of a voluminous compilation of documents and photographs of property conditions — arrive at the conclusion that the area of the Project site is blighted. Just as in Matter of Goldstein, “all that is at issue is a reasonable difference of opinion as to whether…

Continue Reading New York Still Has “Unfrozen Caveman Judges” Who Are “Frightened And Confused” By Eminent Domain Blight

The New York Court of Appeals today reversed the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010). The unanimous opinion came swiftly (oral arguments were just under a month ago), suggesting it was not a close call for the court. Here’s the Appellate Division’s opinion.

We haven’t had time to digest it, and there certainly will be a round of analysis and opinion on the case, but here’s the introductory paragraph of the court’s opinion:

In this appeal, we are called upon to determine whether respondent’s exercise of its power of eminent domain to acquire petitioners’ property for the development of a new Columbia University campus was supported by a sufficient public use, benefit or purpose (see New York Const art I, § 7 [a]; Eminent Domain Procedure Law 207 [C] [4]). We answer this question in the affirmative…

Continue Reading There Really Are No Limits To Eminent Domain In New York – Court Of Appeals Reverses The Columbia Case (Kaur)

Today, the U.S. Supreme Court denied review in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

This is the case challenging the constitutionality of the “undivided fee rule” as applied by the Wisconsin Supreme Court. That court concluded the rule requires a leasehold interest — which would be worth over $1 million if condemned separately — be valued at zero. [Disclosure: we filed an amicus brief for the National Association of Home Builders and the Wisconsin Builders Association in the case, supporting the VFW.]

More about the case, including the cert petition, BIO, and amicus briefs here. The Court’s docket entry is here.Continue Reading U.S. Supreme Court Declines Review Of Wisconsin’s Application Of The Undivided Fee Rule

The WMA Reporter, the monthly publication of the Western Manufactured Communities Housing Association has published A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak), my short article that attempts to deconstruct some of the more common terms property lawyers toss about. Here’s the Introduction:

One of my law school professors once remarked (hopefully in jest) “if it ain’t Latin, it ain’t the law.” While thankfully we have moved away from the days when Latin and Norman French were the languages of the law, those of us who regularly represent property owners defending their rights sometimes toss about terms that, although they purport to be standard English, often make normal people look at us askance.

We may forget that not everyone might understand what we mean when we say, for example, “The court dismissed the regulatory takings claim on ripeness grounds under Williamson County because the…

Continue Reading A Regulatory Takings Glossary (or, How to Translate Property Rights Lawyerspeak)