Eminent Domain | Condemnation

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Calling the case “tempestuous,” the New Jersey Law Journal (via law.com) summarizes this week’s New Jersey Supreme Court oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009). See Michael Booth, Town’s Taking of Beachfront Property Without Compensation Tested at Court (Mar. 24, 2010).

In Klummp v. Borough of Avalon, A-49-09, a trial judge found and an appeals court agreed that an inverse condemnation of beach property resulted from Avalon’s passing of shore-protection regulations after a 1962 Nor’easter leveled the house once standing there.

The borough built sand dunes and vacated access roads to the property, but Edward and Nancy Klummp kept paying taxes — albeit for miniscule amounts. No condemnation case was filed nor was notice given of a taking.

Not until 1997, when they sought permits to rebuild, did Avalon assert the Klummps were no longer the owners, which led them to…

Continue Reading NJ Law Journal’s Summary Of The Klumpp Oral Arguments (The “Bizarre Condemnation”)

“Bust a deal and face the wheel.”

 – Aunty Entity (Tina Turner) Mad Max: Beyond Thunderdome

You make a deal, you live with it. Or use legal means to try and avoid your obligations. But in New York, if you don’t like a deal and can’t get out of it, apparently you try to condemn the other side.

The New York Supreme Court (Appellate Division, Fourth Department) has invalidated an attempt to take property, in this case land used by Syracuse University for “cogeneration facility and steam plants.” The taking, the court held, was purely private since it was an attempt by the condemnor to free its affiliate from its contractual obligations. Syracuse University v. Project Orange Associates Services Corp., No. 208 OP 09-01732, 2010 NY Slip Op 02225 (Mar. 19, 2010).

The deal made by the affiliate was economically “unsustainable,” and it had attempted on several occasions to…

Continue Reading NY Supreme Court (Appellate Division): Eminent Domain Can’t Be Used To Get Out Of A Contract

Technology permitting, we are live blogging today’s oral arguments in Klumpp v. Borough of Avalon,No. A-49-09 (certification granted Nov. 10, 2009).

That’s the case in which the New Jersey Supreme Court is reviewing the decision from the AppellateDivision which held that the government can assert inverse condemnationin order to take property without compensation. (If that leaves you scratching your head, you are not alone — the New Jersey Law Journal called the decision “a bizarre condemnation.” More about the case here, including links to the Appellate Division’s per curiam opinion and the merits and amici briefs.

The court’s web site states the issue simply:

May a municipality occupy a property and obtain title through inverse condemnation without initiating condemnation proceedings under the Eminent Domain Act, N.J.S.A. 20:3-1 to -50?

Arguments are set to begin at 11:00 a.m., Monday, March 22, 2010 in Trenton. Although we are…

Continue Reading Live Blog Of New Jersey Supreme Court Oral Argument In Klumpp v. Borough of Avalon (The “Bizarre Condemnation”)


What we’re looking at and listening to today. Some video, some podcasts.

  • A clip about the owner of what might be “the most condemned property in America.” It features a Virginia rancher whose property has been subject to condemnation 10 times, and who now is alleging an inverse condemnation claim because the VA DOT this time didn’t bother to exercise eminent domain before it interfered with his property rights. Joe Waldo, my Owners’ Counsel colleague, is also featured.
  • From the Federalist Society, a podcast or a video of a recent discussion about “Civil Pleadings Standards After Iqbal” for all of us federal civil procedure nerds.
  • A podcast of a debate on post-Kelo eminent domain reforms between George Mason lawprof Ilya Somin and U.Chicago lawprof Saul Levmore.

Continue Reading Multimedia Round-Up

Who among us hasn’t, at one point or another, found some comfort in that icon of mid-century americana, the greasy spoon diner? In the words of Martin Sexton:

Like a locomotive they were streamlined
And the blue prints were drawn up from a dream of mine
Slap ’em up put ’em on the train
Out to Michigan up to Maine
You may find a diner down in Georgia or
Carolina off the twenty by the Piggly Wiggly
In the country out of Waynsboro

….

Diner my shiny shiny love
In the night you’re all I’m thinking of
Diner my shiny shiny love

The above video is surely the product of the “shiny shiny love” about which Sexton sings. It presents the case of Curley’s Diner in Stamford, Connecticut, and the fallout from the city’s earlier failed attempt to take its property. In Aposporos v. Urban Redev. Comm’n, 790…

Continue Reading Diner My Shiny, Shiny Love

In the latest chapter is the Skyland Shopping Center saga, Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam), the U.S. Court of Appeals for the D.C. Circuit got rid of most of the 17 plaintiffs by determining they did not have standing to object to a condemnation, and then dismissed the claims of the remaining four plaintiffs on Younger abstention grounds.

The case arose from the attempt to condemn the Skyland Shopping Center,which is alleged to be a “blighting factor” to the surrounding area,and redevelop the property. The Washington Post reported on the situation here:

A powerful group of affluent Hillcrest residents has succeeded ingetting the city to declare eminent domain at Skyland — a controversialmove seen in no other commercial land deal in the District except thenew baseball stadium. Skyland will be demolished, under the plan, and ahigher-quality shopping center…

Continue Reading DC Circuit Peels The Onion On Eminent Domain Abuse Case

An interesting difference of opinion about the message in the current blockbuster Avatar. Eminent domain mavens Gideon Kanner and Rick Rayl initially agree that it’s not about eminent domain, but diverge on their philosophical approaches to the issue.

Rather than attempt to summarize their respective positions, it’s probably better we just refer you to their back-and-forth posts. Start with Rayl’s “Is Avatar Really a Political Commentary on Eminent Domain Abuse?” Follow that with Kanner’s “Is the Movie ‘Avatar’ a Story About Eminent Domain?” Finish with Rayl’s reply, “Response to Professor Kanner About Avatar.”

At least one other commentator thought the film was about property rights and eminent domain:

“Avatar” is like a space opera of the Kelo case, which went to theSupreme Court in 2005. Peaceful people defend their property againstoutsiders who want it and who have vastly more power. Jake rallies theNa’vi…

Continue Reading Competing Views Of James Cameron’s “Avatar” (And Eminent Domain)

Today, we filed the final briefs in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship,two condemnation appeals presently before the Hawaii Supreme Court arising out of the County’s attemptsto take a Kona family’s property.

We filed this brief replying to the developer’s Answering Brief, and this brief in reply to the County of Hawaii’s Answering Brief.

The Opening Brief which we filed in November 2009 is posted here.

These cases have resulted in two prior reported opinions, County of Hawaii v. C & J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here), which deals with the issue of pretext and public purpose in eminent domain, and County of Hawaii v. C & J Coupe Family Ltd. P’ship, 120 Haw. 400, 208 P.3d 713 (2009) (available here), which held that under Hawaii law…

Continue Reading Final Briefs In Hawaii Eminent Domain Abuse Cases: Pretext, Actual Purposes, And Private Benefit

The Connecticut Supreme Court has issued opinions in a trio of closely-watched eminent domain cases. The first two opinions deal with technicalities of eminent domain law, but the third overturns a $12 million jury verdict that the Town of Branford, Connecticut abused its eminent domain power.

In Town of Branford v. Santa Barbara, SC 18091 (officially released Feb. 16, 2010), the court affirmed that the highest and best use of the property taken was for residential development.

In Town of Branford v. Santa Barbara, SC 18090 (officially released Feb. 16, 2010), the court held that Connecticut’s offer of judgment statute is not applicable to condemnation appeals.

In New England Estates v. Town of Branford, SC 18132 (officially released Feb. 16, 2010), the court overturned the jury’s $12,435,914 jury verdict, because an “unrecorded, unexercised option to purchase the property…is not considered a property interest under Connecticut state law…

Continue Reading Connecticut Supreme Court: An Option To Purchase Is Not “Property,” So Optionee Can Be Abused

Aliaba We just wrapped up the annual three-day Festival of Eminent Domain Law, otherwise known as the American Law Institute | American Bar Association’s two CLE conferences, “Eminent Domain and Land Valuation Litigation,”and “Condemnation 101: How To Prepare and Present an Eminent DomainCase.” 

Dana Berliner, Matt Fellerhoff and I spoke about about “Winning Arguments in Challenging the Right toTake and Public Use” in the Land Valuation course, and in the 101course, I presented a session on “Voir Dire: Selecting a Jury in a Post-Kelo Era in a Down Economy” with William Blake and Susan MacPherson.

The depth of talent teaching and attending these courses is unbelievable, so I always learn more at these conferences than I impart. Among the other presenters were our fellow law bloggers Gideon Kanner, Anthony Della Pelle and Edward McKirdy. Internet marketing strategist Jayne Navarre also presented an interesting session on using…

Continue Reading ALI-ABA Annual Eminent Domain Conference Wrap-Up