Eminent Domain | Condemnation

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We’re still on the road so haven’t had time to digest this eminent domain decision in more detail, but here’s a short summary.

In an unpublished opinion in Council of San Benito County Governments v. McNamee, No. H033989 (Apr. 27, 2010, the California Court of Appeal (Sixth District) rejected the property owners’ argument the trial court erroneously held they were not entitled to severance damages:

Defendants contend on appeal that the trial court erred in rejecting their claim that the taking of their property created a “substantial impairment” of access to the remainder parcel. They claim that the trial court’s statement of decision “demonstrates its failure to analyze correctly the issues and evidence in this case” and “shows that the trial court failed to consider the facts of this case.”

Slip op. at 4. The court noted that under Cal. Evid. Code § 402, the hearing on the…

Continue Reading Cal Ct App: “Substantially Impaired” Access Does Not Mean Reduced Access

I’m on the road so haven’t had the opportunity to digest this one in more detail.

In an unpublished opinion in Community Redevelopment Agency of the City of Los Angeles v. Kramer Metals, No. B208726 (Apr. 23, 2010, the California Court of Appeal (Second District) held:

Kramer Metals, a California partnership, Stanley J. Kramer, as its general partner, and Stanley J. Kramer and Susan M. Kramer, husband and wife, as joint tenants, (collectively, Kramer) appeal from the judgment in condemnation following: (1) a court trial determining Kramer’s entitlement to just compensation from the Community Redevelopment Agency of the City of Los Angeles, California (CRA) for taking Kramer’s property (Kramer Property or 1000 Property); (2) a jury trial resulting in an award of $4,830,000 as just compensation; and (3) a jury trial resulting in a verdict that Kramer “suffered no loss of goodwill as a result of the taking.”

On…

Continue Reading Latest Eminent Domain Ruling From The California Court of Appeal

According to this City Room blog post at the New York Times, Daniel Goldstein, the “last Atlantic Yards holdout” and the driving force behind Develop Don’t Destroy Brooklyn, has agreed to cease his objections to the taking of his family home in return for $3 million. For a statement from Mr. Goldstein, see here.

We say good for him.

Browse through some of the comments on the post, however, and you will note that others view this through more jaded lenses: “We knew it was all about the money in the end,” “I guess it was about money all along, eh?,” “Moral of the story: He who holds out longest, gets the biggest check. No good guys in this one.” Similar charges were leveled against Susette Kelo when she eventually settled her case.

These comments are unfair, and reflect a gross lack of understanding of what…

Continue Reading Was It “All About The Money?” Hardly.

On Friday, April 30, 2010, as part of the Spring Meeting of the ABA’s Section of State and Local Government Law, I’ll be presenting a paper Recent Developments in Challenging the Right to Take in Eminent Domain (SSRN posting here) during the “Land Use Hot Topics” program.

If you are in South Florida, the in-person program will be at Holland & Knight, 701 Brickell Avenue, Miami, from 12:30 – 2:00pm. If you can’t be there in person, you can sign up for the “virtual” meeting (a teleconference and live audio webcast) here. Either way, hope you can join us.

The program will also cover such topics as Religious Land Use Update, Recent Developments in Comprehensive Planning, The Miami Beach Art Deco District, Official Immunity in Making Local Zoning Decisions, and Uses and Limits of the Fair Housing Act and the Americans With Disabilities Act. Registration also includes two…

Continue Reading Upcoming: Land Use Hot Topics Program (In Person And Online)

What we’re reading today:

  • Curbing abuse of eminent domain – A Denver Post editorial on a new Colorado statute designed to limit the power of the government to declare farmland “blighted” (“The new law says land that has been classified by the county assessor as agricultural land cannot be condemned for urban renewal. However, it makes an exception for agricultural land that is an enclave within cities and has had development around it for at least three years. We will have to see how the law shakes out in the coming years, but that seems to be an awfully big exception. That’s exactly the kind of land that usually needs the most protection from government.”).

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Continue Reading Sunday Eminent Domain Round-Up

In Cottage Emporium, Inc. v. Broadway Arts Center, L.L.C., No. A-0048-97T2 (Apr. 16, 2010) (per curiam), the New Jersey Superior Court (Appellate Division) struck down the city of Long Branch, New Jersey’s declaration that properties located in an area of the city known as the “Broadway Corridor” are blighted. The court held that the city must do more than recite the statutory criteria for blight and then assert the properties met the criteria.

The city determined the properties were in “poor” condition using only “cosmetic and superficial” criteria, and by visually inspecting the buildings’ exteriors. Nor did the city attempt “even in small part to establish what Gallenthin [Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007)] requires, namely a degree of ‘deterioration or stagnation that negatively affects surrounding areas’ by promoting conditions that can develop into blight.” Slip op. at 36.

Although a city’s…

Continue Reading New Jersey Appellate Division: For Property To Be Blighted, City Must Do More Than Say It Is Blighted

The eminent domain issue grabbing everyone’s attention these days is the question of whether property can be taken — the Public Use/Kelo issue — and not the issue in play in the vast majority of condemnation cases, just compensation. The question of how much a property owner is entitled to under the U.S. and state constitutions’ “just compensation” clauses when her property is taken does not grab many headlines. Other than than us down-in-the-trenches condemnation lawyers, and property owners who are being jacked by lowball government offers, the issue does not boil the blood.

The latest decision in the long-running odyssey of Bart Didden and the Village of Port Chester, New York illustrates the process. In the Matter of the Application of the Village of Port Chester, 2010 NY Slip Op 50532(U) (Apr. 2, 2010). My Owners’ Counsel of America colleague Michael Rikon represented the property owners.

The…

Continue Reading The Latest (Last?) Chapter In The Port Chester Condemnation

When is a lease that everyone agrees is worth more than a million dollars totally worthless? When it’s an eminent domain case and the court applies the “undivided fee” rule, that’s when.

Update: Professor Kanner adds his thoughts here.

Most eminent domain attorneys know about the infamous undivided fee rule (aka as the “unit rule” in some jurisdictions), a legal fiction which requires a trial courtto calculate valuation of property as if a single owner possessed everything, even when it is held by more than one interest. Under the rule, the condemnor is not required to compensate eachseparate interest in the property, but treats the property as if it had one owner.

For example, ifa condemned building is being leased to tenants, compensation ismeasured by the value of the undivided fee simple absolute value of thebuilding, not the aggregate value of the building and the leases. The building owner…

Continue Reading New Cert Petition: Is The “Undivided Fee” Rule Unconstitutional?

The New Hampshire Public Utilities Commission properly approved the taking of private water works by the City of Nashua. In Appeal of Pennichuck Water Works, Inc., No. 2009-274 (Mar. 25, 2010), the New Hampshire Supreme Court concluded taking was in the public interest, and that it resulted in a net benefit to the public.

New Hampshire law creates a rebuttable presumption that the acquisition of a privately-owned utility is in the public interest, and the court held that “those opposing the City’s petition to acquire [the water works] had to demonstrate, by at least a preponderance of the evidence, that the proposed takings was not in the public interest.” Slip op. at 9. Separately, the court determined that the taking had a “net public benefit” — an analysis required by the New Hampshire Constitution. Slip op. at 9-10.

Overall, this case does not add much to the “public…

Continue Reading New Hampshire Supreme Court Upholds Taking Of Private Water Works