Eminent Domain | Condemnation

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Under Haw. Rev. Stat. § 101-27,when a condemnation action is “abandoned or discontinued beforereaching a final judgment, or if, for any cause, the property concernedis not finally taken for public use,” the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reasonof the bringing of the proceedings and the possession by the plaintiffof the property concerned if the possession has been awarded includingthe defendant’s costs of court, a reasonable amount to cover attorney’sfees paid by the defendant in connection therewith, and otherreasonable expenses

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 Hawaii Supreme Court held that property is not “finally taken” in acondemnation action when a single condemnation fails or is dismissed,even if the condemnor succeeds in a subsequent — or concurrent –attempt to take the…

Continue Reading HAWSCT: Property Owners Entitled To Attorneys Fees & Costs For Failed Taking, Even If Gov’t Prevails In Intermediate Steps

Goodtobeking You may remember Mel Brooks’ History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims “it’s good to be the King!” each time he takes advantage of one of his subjects.

Well, it turns out that it really is good.

In Sable v. Myers, No. 07-6286 (10th Cir. Apr. 24, 2009), the U.S. Court of Appeals held that city councilpersons are absolutely immune from claims they used the domain power to take the property of an owner as retaliation for his having successfully brought a quiet title action against the city. 

Mr. Sable’s property was immediately north of the city’s public works facility.  His predecessor in title had adversely possessed from the city a portion of a former city street on the southern boundary of the property, and this “strip” was fenced in along with Sable’s main parcel. …

Continue Reading It Is Good To Be The King: Councilmembers Personally Immune From Charges Of Retaliatory Eminent Domain Abuse

In Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (May 19, 2009), the Minnesota Court of Appeals held that when a delegation of eminent domain power from a municipality requires a redevelopment agency to enter into a development agreement before acquiring property, the agency is without power to take property until it enters such an agreement.

Most property owners within the redevelopment district did not object to the taking of their land but three did.  They argued that the city’s resolution delegating condemnation power to the redevelopment agency incorporated a redevelopment plan into its requirements by reference.  As noted by the court, section 1-8 of the resolution provided:

The Redevelopment Plan contemplates that the City may acquire property and reconvey the same to another entity. Prior to formal consideration of the acquisition of any property, the City will require the execution of a binding development agreement…

Continue Reading Minn Court Of Appeals: Redevelopment Agency Exceeded Delegation Of Eminent Domain Authority

Under Haw. Rev. Stat. § 101-27, when a condemnation action is “abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use,” the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reasonof the bringing of the proceedings and the possession by the plaintiffof the property concerned if the possession has been awarded includingthe defendant’s costs of court, a reasonable amount to cover attorney’sfees paid by the defendant in connection therewith, and otherreasonable expenses

The County of Hawaii filed a condemnation lawsuit, and when it looked like that action was in legal jeopardy, filed a second lawsuit seeking to take virtually the same property. The trial court eventually held the first condemnation was an unconstitutional private taking, but upheld the second.  The County denied it was liable for 101-27 damages…

Continue Reading Government Must Pay 100% Of Owner’s Defense Fees In Illegal Condemnation

On behalf of the property owner, we’ve filed a Motion for Reconsideration (filed May 1, 2009) of the Hawaii Supreme Court’s latest opinion in which the court held that a condemnee who appeals the denial ofdamages for a failed taking is entitled to damages it sustains onappeal. The opinion had three points that merited correction:

  • Haw. Rev. Stat. § 101-27 requires the condemnor to pay all damages sustained by the property owner when a taking is ultimately unsuccessful, even if the condemnor prevailed on intermediate steps in the case.
  • Work that may not appear to have been recorded separately was in fact separated (there were two concurrent condemnation attempts, and two appeals).
  • Under section 101-27, the property owner is entitled to recover all “costs of court” and is not subject to a “reasonableness” inquiry.

More to follow when the court renders its decision.  Update: forgot to add that the court…

Continue Reading Damages Flowing From A Failed Condemnation: Motion For Reconsideration

Here’s what we’ve been reading today:

  • Connecticut Public Broadcasting Network’s Where We Live show has posted a mp3 of an interview with Jeff Benedict, author of “Little Pink House,” the book about Kelo v. City of New London. More about the book here.

Continue Reading Monday Eminent Domain Round-Up

A state law providing that airport boards may exercise the powers of the municipalities which appoint them, but which also requires a condemnation action by an airport board “be instituted in the names of the municipalities jointly,” prohibits an airport board from instituting an eminent domain suit in its own name. In Spokane Airports v. RMA, Inc., No. 26538-2-III (Apr. 28, 2009), the Washington Court of Appeals held that any condemnation suit filed by the airport board that is not in the names of the municipalities lacks subject matter jurisdiction.

The City of Spokane and Spokane County jointly operate the Spokane International Airport, and formed the Spokane Airport Board to operate it. The airport needed to remove some buildings, including several which were leased to RMA, so the city and the county passed a resolution of taking condemning the leases. The Airport Board, purporting to act pursuant to…

Continue Reading WA Court Of Appeals: Delegations Of Eminent Domain Power To Municipalities Strictly Construed

The Big Island’s West Hawaii Today reports “Both sides claim win in latest ruling” about the Hawaii Supreme Court’s recent opinion in the cases involving the County of Hawaii’s attempt to take the property of a Kona family to meet the County’s obligations under a development agreement with the developer of the Hokulia project.  Disclosure: we represent the property owner in these cases.

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Apr. 21, 2009) (posted here), the court confirmed that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27,including the reasonable attorneys fees and costs it incurs on appeal when its property is not “finally taken” forpublic use. The trial court struck down an attempted taking for a road for lack ofpublic use,

The road, partof a development agreement between the county and…

Continue Reading West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases

In the latest reported decision arising out of the County of Hawaii’s attempt to take property, the Hawaii Supreme Court held that a condemnee who appeals the denial of damages for a failed taking is entitled to damages it sustains on appeal. 

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Apr. 21, 2009), the court held that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27, including the reasonable attorneys fees and costs it incurs on appeal.  Section 101-27 requires the condemnor to pay “damages” including attorneys fees and costs when property is not “finally taken” for public use.  In these consolidated cases, the trial court struck down an attempted taking for a road for lack of public use, but in a separate case prosecuted concurrently, the court held the property could be taken.

The…

Continue Reading HAWSCT: Property Owners Entitled To Attorneys Fees & Costs On Condemnation Appeal

In City of Jordan v. Church of St. John the Baptist of Jordan, No. CV-07-24976 (Apr. 14, 2009), the Minnesota Court of Appeals held that a state law requiring the consent of a church’s governing board before its land can be taken for road or street purposes requires consent before a city can take property for sidewalks and traffic signals.

Minn. Stat. § 315.42 (2008) provides in relevant part:

No roads or streets shall be laid through the property without the consent of the corporation’s governing board.

The city intended to place a new sidewalk and traffic signal lights on the church’s property and could not negotiate a purchase. The issue was whether the sidewalk and signal constituted “roads and streets” under the statute.  The appellate court noted that the statute had never been interpreted since its enactment in 1881, but that the Minnesota Supreme Court in a case…

Continue Reading Minn Court Of Appeals: No Taking Of Church Property For Sidewalk Without Consent