Eminent Domain | Condemnation

Subscribe to Eminent Domain | Condemnation via RSS

In System Components Corp. v. Florida Dep’t of Transportation, No. SC08-1507 (July 9, 2009), the Florida Supreme Court resolved a conflict in the lower Florida courts regarding the application of business damages in a condemnation case under Florida Statutes § 73.071(3)(b). The court held that a business is not required to relocate as the result of a partial taking, but if it chooses to do so, only the actual damages suffered by the business are compensable, and “its business damages must be determined in light of its continued existence at its new location.” Slip op. at 3.

The Florida appeals courts were split on the issue. In State Dep’t of Transportation v. Tire Centers, LLC, 895 So. 2d 1110 (Fla. 4th DCA 2005), the Fourth District court awarded business damages as if the business had ceased to exist on the date of the taking, reasoning that the…

Continue Reading Florida Supreme Court: Property Owner’s Off-Site Mitigation Taken Into Account In Calculating Business Damages From A Partial Take

Here are items which we’ve been reviewing today:

  • Dwight Merriam’s thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor.
  • A report that the “Florida Hometown Democracy” initiative has made the 2010 ballot. According to the report “[i]f the proposal gets 60 percent approval at the polls, HometownDemocracy would require local referendums on changes to city and countycomprehensive plans.”
  • The New York Court of Appeals (that state’s highest court) will be hearing arguments in the Atlantic Yards cases. The NY Observer‘s report here, and the NY Times report here.
  • Speaking of takings for sports facilities, Professor Gideon Kanner dishes on using taxpayer money to attract and support stadiums and arenas.

Continue Reading Tuesday Round-Up

A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics discussed during today’s call, and other items of interest which we didn’t have time for:

  • Judge Sonya Sotomayor’s decisions about eminent domain and regulatory takings
  • Resource page for the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009).
  • Scalia and O’Connor’s dissent

…
Continue Reading Links From ABA Condemnation Committee Conference Call

I’ve been reading some noteworthy law journal articles on the subject of eminent domain —  two on the issue of pretext, and one on just compensation. Worth reviewing.

  • Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77 Fordham L. Rev. 3095 (2009).

    The plaintiffs in Goldstein based their pretext claims on both Justice John Paul Stevens’s brief discussion of pretext in the majority opinion of Kelo and Justice Anthony Kennedy’s more lengthy discussion in his concurrence. Acknowledging that “[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption . . . of invalidity is warranted,” Kennedy’s fifth-vote concurrence identified the possibility of “a more stringent standard of review than [rational basis review] for a more narrowly drawn category of takings.” Although the Second Circuit rejected the application of this heightened pretext standard in Goldstein,

…
Continue Reading Eminent Domain Academic Round-Up: Pretext And Compensation

I just finished reading a recently-published law review article by Missouri Court of Appeals Judge Harold L. Lowenstein, Redevelopment Condemnations: A Blight or a Blessing upon the Land?, 74 Mo. L. Rev. 30 (2009) (available here).

Despite the efforts of legislatures to reform eminent domain, the exercise of eminent domain for private redevelopment still confers a concentrated benefit on a few while imposing the costs of such redevelopment on a discrete set of property owners. To remedy this imbalance, and to prevent developers and development agencies from abusing this power, this article proposes that property owners be accorded remedies at the beginning as well as at the end of the eminent domain process.

The article recommends redefining blight in “concrete and measurable terms,” and allowing courts to undertake “meaningful judicial review” of blight determinations. The article also suggests that precondemnation blight cover damage to property for the “pall…

Continue Reading New Article On Redevelopment And “Blight” – Proposal For Reform

UA93 Remember that song Undecided, recorded by the Ames Brothers (and countless others)?

First you say you do, and then you don’t (no you don’t)
And then you say you will, and then you won’t (no you won’t)
You’re undecided now
So what are you gonna do?

Now you wanna play, and then it’s no (then it’s no)
And when you say you’ll stay, that’s when you go (when you go)
You’re undecided now
So what are you gonna do?

That looks to be the situation shaping up in the federal government’s attempt to acquire land near Somerset, Pennsylvania for the United 93 memorial (for background see this post).

Initially, the land was to be taken by eminent domain after negotiations broke down, prompting two panel members to resign. Then, the headline “Gov’t reverses course on Flight 93 memorial land” (June 5, 2009) which reported “The federal…

Continue Reading The Ames Brothers On Eminent Domain Negotiations

Second Circuit Judge Sonia Sotomayor, the nominee to fill Justice David Souter’s seat on the U.S. Supreme Court, has served as either a federal District or Circuit Judge for 18 years during which she’s either authored or sat on panels in cases involving eminent domain or regulatory takings.  Here’s an admittedly unscientific sampling of those decisions, which reveal a mixed bag on the property issue:

  • Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005) (Sotomayor on panel).  This decision represents the most favorable case for property owners, although it is more a due process than a takings case.  The panel held that New York’s eminent domain law deprived the property owner of due process notice, and that when the law provides a short time frame to institute a challenge to a condemnation, the government has an obligation to provide express notice of the time frame. The

…
Continue Reading SCOTUS Nominee Sotomayor On Takings Issues

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the court held that a taking is not immune from judicial scrutiny for pretext or private benefit simply because the property is being taken for a “classic” use such as a road. The court recognized that the recitation by the government of some public benefit to a taking will not insulate it from judicial review if the claim of public benefit is a pretext to hide a private guiding hand. The court remanded the case to the trial court for a review of the record and a determination among other things of whether the County’s claim that it instituted the taking independently stood up, or whether the taking was simply a better-disguised retread of an earlier failed condemnation.

The recent decision by the Hawaii Supreme Court in…

Continue Reading Why Getting Eminent Domain Right Matters