Eminent Domain | Condemnation

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The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The issues in the case include:

  • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
  • whether the government may concurrently prosecute more than one condemnation lawsuit to take the same property, at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefs are posted here, and a summary of the case and the trial court’s findings are here.  The argument will be held on Thursday, October 16, 2008, at 9:00 a.m. in the Supreme Court courtroom at the Continue Reading Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties “blighted.”  Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury condos were not in fact blighted, or at least the government had not proven that they were.  The court remanded the case to the trial court since the city had not established the case that there was “substantial evidence of blight.”  City of Long Branch v. Anzalone, No. A-0067-06T2 (N.J. Super. Aug. 7, 2008).  This decision follows up on the New Jersey Supreme Court’s decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007), which held that “blight” means more than “not fully productive.”

The opinion is posted here.  A summary of the case from New Jersey Eminent Domain Law blog is…

Continue Reading New Jersey: Blight Not Right

An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, “Political protest hits a brick wall.”  The story details the conflict between a property owner who commissioned a two-story mural on the side of a building that says “End Eminent Domain Abuse” and city officials who have asked a federal court to hold that it violates the city’s restrictions on the size of signs.  The owner claims its not the size that offends the city mothers and fathers, but the message.  The story has a great big photo of the mural, so you can decide for yourself.Continue Reading Protesting Eminent Domain Abuse

Get ready for this year’s Land Use Institute conference on “Planning, Regulation, Litigation, Eminent Domain, and Compensation,” to be held in Boston on August 13-16, 2008.  I can’t attend this year, but have in the past, and like all ALI-ABA land use conferences, it looks like it will be well worth going if you can.  The faculty is first-rate and includes professor-bloggers Gideon Kanner (Gideon’s Trumpet) and Patricia Salkin (Law of the Land) and other notables from our practice area. 

The keynote address will be presented by Harvard Law School Professor Charles M. Haar, revisiting his seminal 1955 law review article on land use planning “In Accordance With a Comprehensive Plan” (is there a single land use lawyer who hasn’t read this article at least once?).  The agenda for the conference, and other information is posted here.Continue Reading Seminar: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)

In United States v. 14.02 Acres of Land, More or Less in Fresno County, No. 05-17347 (Jun. 24, 2008), the Ninth Circuit upheld a taking by the federal government for the Western Area Power Administration against challenges that the taking lacked congressional authorization and was not for public use.  The most interesting part of the decision begins on page 7269 of the slip opinion and the court’s discussion of private benefit takings.  Continue Reading Ninth Circuit Rejects Public Use Challenge to Taking for Power Grid

If my office ever takes another Fifth Amendment case up to the U.S. Supreme Court (my Damon Key colleagues Charlie Bocken and Diane Hastert argued and won Kaiser Aetna v. United States, 444 U.S. 164 (1979)), we’re going to do whatever we can to avoid filing it so it gets considered on June 23. 

Today’s the third anniversary of Kelo v. City of New London, and also the day the Court denied review to a case which is the logical follow-up to Kelo, Goldstein v. Pataki.

[A follow up from a reader’s comment: June 23 is “Kelo Day” – read more here.]

Continue Reading Note to Self: Avoid June 23 at the Supreme Court

The US Supreme Court today denied review to three cases we’ve been following:

  • Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) – Justice Alito would have granted the petition.  Justice Alito had not been appointed to the Court at the time of Kelo, so this may signal another vote for property owners if this issue ever makes it back up.

Here’s the Order. Continue Reading Cert Denied in Three Cases

Several items today with a common theme of eminent domain and public use –

  • PropertyProf Blog posts a link to Professor Richard Epstein’s latest article, “Public Use in a Post-Kelo World.”  I agree with Professor Barros’ recommendation: “Given the author, obviously a must-read for anyone interested in public use issues.”
  • The Honolulu Advertiser’s Sean Hao details the issues when takings for Honolulu’s proposed +$4B rail transit project runs into a unique “old Hawaii” neighborhood in “Pearl City’s Banana Patch at risk.”  A neighborhood without city water, street lights, or sidewalks (but a community nonetheless) is slated for removal for a “park and ride.”

…
Continue Reading Public Use/Kelo Round Up

The Institute for Justice, the attorneys who represented Susette Kelo in Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the US Supreme Court held that economic development takings were not per se invalid, has filed a brief amicus curiae supporting the request for review in Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008), the Second Circuit decision I blogged about here.  The brief asserts:

In affirming the dismissal of Petitioners’ complaint, the Second Circuit held that taking property from A just to transfer it to B is constitutional — as long as the government refuses to admit what it is doing.

Brief at 2.  More on the issues in the case here.  The petition and other briefs are posted here.

Update: here is a story from the New York Sun about the brief (hat tip Continue Reading Amicus Brief in Goldstein v. Pataki Eminent Domain Pretext Case

Attorneys forHilaria and Baldomero Muniz and another landowner have asked a panel ofjudges at the 5th U.S. Circuit Court of Appeals in New Orleans to voida federal judge’s order that they open their land to surveyors for theborder fence.

They argue that the district judge erred when he allowedgovernment officials to attempt to negotiate property access aftersuing. They say the law requires the government to try to strike a dealbefore &mdash…

Continue Reading Takings Round Up