Eminent Domain | Condemnation

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In a brief memorandum opinion, the New York Court of Appeals (the state’s highest court) today affirmed the Appellate Division’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property for farmland preservation. The court held: 

Petitioner contends that the United States Supreme Court’s decision in Kelo v City of New London (545 US 469 [2005]), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment (see US Const Amend V [“nor shall private property be taken for public use, without just compensation”]). We need not, and do not, reach the issue whether petitioner’s interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was…

Continue Reading New York Court Of Appeals: No Need For A Comprehensive Taking Plan

Some interesting reports filtering across my screen today:

  • Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, “Regulatory Takings and the Fourteenth Amendment.”  On that subject, check out “No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights” by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

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Continue Reading Land Use Round-Up

A very important decision by California’s Third District Court of Appeal, exposing the fantasy behind the Kelo majority’s conclusion that decisions to take property are most often the result of an objective process and comprehensive and carefully considered planning. In City of Stockton v. Marina Towers LLC, No. C054495 (Feb. 13, 2008), the court invalidated an attempt to take property on public use grounds, holding that the city’s resolution of necessity was so “nondescript [and] amorphous,” and “so vague, uncertain and sweeping in scope that it failed to specific the ‘public use’ for City sought acquisition of the property.” Slip op. at 3. 

Recall that in  Kelo v. City of New London,545 U.S. 469 (2005), the majority took great pains to establish thatthe taking of Mrs. Kelo’s house was part of a “‘carefully considered’development plan,” and was therefore entitled to judicial deference.  Keloreviewed the decision to take…

Continue Reading Cal. Court of Appeal: No Public Use In “Case Of Condemn First, Decide What To Do With The Property Later”

In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the US Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia), held “in order for a fact finding body to ignore a regulation in calculating ‘just compensation’ for a given piece of property, the landowner must show that the primary purpose of the regulation was to depress the property value of land or that the ordinance was enacted with the specific intent of depressing property value for the purpose of later condemnation.” Slip op. at 1-2. The court also held that once a judge determines that regulation was not used to depress the value of the property pre-acquisition, evidence of improper use of regulation cannot be presented to the finder of fact.

The case involved the federal government’s efforts to condemn undeveloped land in the area east of the Everglades National Park…

Continue Reading Pretext In Compensation Determinations: 11th Circuit Holds Landowner’s Burden To Show Government Intent To Depress Value By Regulation

It looks the one of the landowners under the threat of eminent domain in New York City’s Manhattanville (aka West Harlem) neighborhood has a blog about his fight. Check out My Land is Mine, with posts by Nick Sprayregen, owner of Tuck-It-Away, a self storage facility threatened with condemnation to allow Columbia University to expand its Morningside Heights campus northward. The Empire State Development Corporation, the entity actually doing the taking, asserts the neighborhood is “blighted,” and Sprayregen and another property owner have sought court review.

I used to live in and frequent that neighborhood when I was attendingColumbia Law, and even rented a small locker at the BroadwayTuck-It-Away facility. The neighborhood did not fit a classic definitionof “blighted” then — nearly 16 years ago — and has appeared to become even more gentrified in the interim. The property owners contesting the blight designation claim that the designation is…

Continue Reading Property Owner’s Blog: My Land Is Mine

Eminent-domain-cover-copy In “Positioning Politics: Kelo, Eminent Domain, and the Press,” an article in “Land and Power: The Impact of Eminent Domain in Urban Communities,” published by the Policy Research Institute for the Region (Princeton), the author asserts that the reporting on the Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), “was more interpretation than fact andrelied heavily on inflammatory hyperbole and provocation.” Further,

Overwhelmingly and unsurprisingly, the editorials voiced dissent withthe Court’s ruling, which mirrored public opinion data, but as with thereporting, they relied heavily upon a series of myths about Kelo andeminent domain. These myths became powerful framing devices, which havemade eminent domain a touchstone social-policy battle with a life ofits own.

The abstract of the article is on SSRN here (the full article is also available for download at SSRN), and the entire “Positioning Politics” monograph…

Continue Reading Kelo Backlash: Media Hype?

According to this report from the San Francisco Chronicle, the California Supreme Court has denied review of Defend Bayview Hunters Point Committee v. City and County of San Francisco, 167 Cal. App. 4th, 84 Cal. Rptr. 3d 486 (Cal. Ct. App. 2008), the decision held:

The Defend Bayview Hunters Point Committee (DBHPC) gathered the required number of signatures on a petition to force a citywide referendum on an ordinance adopting a redevelopment plan for the Bayview Hunters Point community. The City and County of San Francisco (the City) rejected the petition because it failed to include a copy of the 57-page redevelopment plan that had been incorporated by reference in the ordinance when the Board of Supervisors of the City and County of San Francisco voted to approve it. DBHPC’s ensuing petition for a writ of mandate compelling the Clerk of the Board of Supervisors (Clerk) to accept the referendum petition was denied by the trial court, and this appeal followed. We…

Continue Reading Cal. Supreme Court Won’t Review San Francisco Redevelopment Initiative

Thanks to Charley Foster for pointing out this podcast of Susette Kelo’s recent appearance at the Cato Institute’s forum about the book Little Pink House: A True Story of Defiance and Courage, by Jeff Benedict (available from Amazon here):

The mp3 of the podcast can also be downloaded directly here.Continue Reading Cato Institute Podcast: A Story Of Eminent Domain Abuse Featuring Susette Kelo

The circuit court has scheduled the next steps in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Haw. Dec. 24, 2008), the case in which the Hawaii Supreme Court held that the government must pay damages to a property owner when an attempt to take property by eminent domain fails, and that courts have an obligation to examine claims that the government’s asserted public purpose for a taking is pretextual, even when the taking is for a “classic” public use. The Court remanded the case to the circuit court for a consideration of the amount of damages owed to the property owners, and the pretext issue. [Disclosure: we represent the property owners.]

The schedule for the case is reported by West Hawaii Today here.Continue Reading Schedule In Kona Eminent Domain Pretext Case

A delay in publication of a legal notice won’t knock out a challenge to the legality of a city’s blight designation.

In Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009), the California Fourth District Court of Appeal held that the trial court abused its discretion when it dismissed a “reverse validation” complaint because notice of the complaint was not timely published.

While this decision isn’t directly about eminent domain for economicdevelopment or redevelopment, the situation that gave rise to is. The plaintiff challenged a local ordinance that declared its property (a community boxing gym that serves “at-risk” youth) and 700 other properties to be “blighted” and available for condemnation. The gym and its neighborhood are not “blighted” in the usual sense of the word, only in thesense of California’s Community Redevelopment Law, which contains adefinition of blight that is so broad that virtually…

Continue Reading California Court of Appeal: No TKO Of Eminent Domain Challenge (Video)