Eminent Domain | Condemnation

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Appellate courts issue opinions and orders to decide cases. The opinions and orders in many cases get “published,” meaning that they end up in the bound reporters (the U.S., Federal, Federal Supplement, the official state reports, and in West’s Regional Reports, for example) and become precedential and set forth a rule of law governing future litigation.

Most appellate courts also issue opinions and orders that are not “published” in the sense referred to above, even though they are “published” meaning they are made available to the public. Generally speaking, these are cases presenting more routine issues. Unpublished decisions may be designated as unpublished opinions, memorandum opinions, summary disposition orders, “per curiam” opinions, or simply may bear the notation “Not For Publication.” The rules vary by jurisdiction on whether unpublished opinions are precedential, and even whether they can be cited in a brief. [Barista’s note: we are of the school believing…

Continue Reading “Unpublished” Opinion Round-Up

The first line of this opinion issued today by the Georgia Supreme Court got us all excited:

The trial court dismissed this condemnation case for lack of prosecution pursuant to OCGA § 9-2-60 (b).

Windsor f/k/a Bank v. City of Atlanta, No. S10A0102 (May 17, 2010). Was it a case where a condemnor sat on its rights? Started to take property then did nothing? Alas, it was not quite as dramatic.

The city needed a 29-foot subsurface easement to address a substandard sewer line. The city offered $180 for the easement but Windsor declined, at which point the city instituted a “declaration of taking” action and put $400 into court as the estimated compensation. The trial court vested title in the city. Slip op. at 3.

Windsor challenged the taking, including with its claims a challenge to the constitutionality of the declaration of taking procedure. The issues were briefed…

Continue Reading Georgia SCT: Lack Of Prosecution Time Limit Applies To Condemnees

On June 1, 2010, starting at 2:00 p.m. ET, the New York Court of Appeals will hear oral arguments in Kaur v. New York State Urban Development Corp. In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight.” We analyzed the Appellate Division’s opinion here.

Here are the briefs in the Court of Appeals:

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will…

Continue Reading Briefs And Live Blog Of June 1 New York Court Of Appeals Oral Argument In Kaur v. NY State Urban Dev Corp. (Columbia “Blight” Case)

After Kelo v. City of New London, 545 U.S. 469 (2005), many state and local governments adopted measures designed to limit exercises of the power of eminent domain. Some jurisdictions went for substantive limits. For example, Nebraska adopted a statute prohibiting takings that are “primarily” for economic development. Other jurisdictions took the procedural route, and adopted procedural limits on the exercise of the eminent domain power.

Missouri is one of the latter jurisdictions. It adopted Missouri Rev. Stat. § 532.256 which requires a condemor to engage in “good faith negotiations” before filing an eminent domain action:

Before a court may enter an order of condemnation, the courtshall find that the condemning authority engaged in good faith negotiations prior to filing the condemnation petition. A condemning authority shall be deemed to have engaged in good faith negotiations if:

(1) It has properly and timely given all notices to owners requiredby…

Continue Reading Missouri Court Of Appeals: Good Faith Negotiation Statute Requires Appraisal Using “Generally Accepted Appraisal Practices”

Vanderbilt lawprof James Ely (if you haven’t read his book The Guardian of Every Other Right: A Constitutional History of Property Rights (1998), you really should) writes on the topic du jour, the nomination of SG Elena Kagan to the Supreme Court in Stevens, Kagan and property rights.

Most of the article focuses on Justice Stevens’ record in property cases:

However, in at least one important area of constitutional law – the rights of property owners – Justice Stevens’ record fell woefully short of protecting the interests of average citizens. In fact, Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals.

He concludes with this:

Hopefully Elena Kagan, Mr. Obama’s nominee to replace Justice Stevens, holds a more balanced view of the importance of property rights in the American constitutional order. As in many other fields of law, however…

Continue Reading Ely On “Stevens, Kagan and Property Rights”

A new article worth reading: Eminent Domain Due Process, 119 Yale L. J. 1280 (2010) by D. Zachary Hudson. Here’s the abstract:

This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed…

Continue Reading Yale Law Journal: Eminent Domain Due Process

In County of Cortland v. Miller, No 507725 (Mar. 24, 2010), the New York Appellate Division (Third Department) held that when the county legislature authorized the condemnation of property for a road culvert pursuant to New York’s Eminent Domain Procedure Law, the county highway department must condemn the property pursuant to the EDPL, and not the Highway Law.

Here, the County Legislature’s resolution in August 2008 authorized the acquisition pursuant to the EDPL. Rather than adhering to the method for the taking directed in the resolution (i.e., the EDPL), petitioner instead attempted to use a procedure under a different statute (i.e., Highway Law § 120). This alone is reason enough to dismiss the petition. In addition, Highway Law § 120 is inconsistent with the EDPL in significant aspects relevant in this proceeding, including hearing requirements (see EDPL 201) and who determines compensation (see EDPL 501 [B]). Those aspects of…

Continue Reading New York Appellate Division: Condemnation Must Proceed Under Eminent Domain Statutes, Not Highway Law

A couple of links following up on our recent post about 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).

That’s the case in which the Supreme Court is being asked to review a decision by the Wisconsin Supreme Court (768 N.W.2d 749 (Wis. 2009)) applying the “undivided fee” rule to conclude that a valuable long-term $1 per year lease was worthless as a matter of law. The VFW was prohibited by the trial court from introducing any evidence of value since under the undivided fee rule, the jury could only determine the value of the fictional fee simple interest. The sharply divided Wisconsin Supreme Court affirmed. [Disclosure: we filed an amicus brief, noted below.]

The cert petition is here. The amicus brief we filed for National…

Continue Reading More About The “Undivided Fee Rule” Cert Petition

Yesterday, I had the pleasure of speaking to members of the Western Manufactured Housing Communities Association about some of the legal issues facing their businesses, and property owners in general. Here are the links I mentioned:

  • Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir. 2009) (en banc review ordered Mar. 12, 2010). This is the very important case regarding the city’s mobile home rent control ordinance, which the Ninth Circuit panel concluded worked a facial taking of property under Penn Central. We have the briefs which have been filed for en banc review, and will be posting them in the upcoming days. Most definitely a case to watch.
  • A recent opinion from the California Court of Appeal in another rent control

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Continue Reading Links From WMA Presentation – Regulatory Takings, Rent Control, And Guggenheim

Today, on behalf of the National Association of Home Builders and the Wisconsin Building Association, we filed this brief amici curiae 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).

The brief argues that the “undivided fee rule,” as applied by the Wisconsin Supreme Court, violates the Fifth Amendment’s Just Compensation Clause because it  requires that the value of a leasehold interest which would be worth over $1 million if condemned separately be valued at zero. Most eminent domain attorneys know about the infamous undivided feerule (aka as the “unit rule” in some jurisdictions), a legal fictionwhich requires a trial courtto calculate valuation of property as if a single owner possessedeverything, even when it is held by more than one interest. Under therule, the condemnor is not…

Continue Reading Home Builders’ Amicus Brief In SCOTUS Eminent Domain Case: Is Wisconsin’s Application Of The Undivided Fee Rule Unconstitutional?