Eminent Domain | Condemnation

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As part of a railroad realignment project, Salt Lake City needed B’s land. But B wouldn’t sell, and since B’s land was already committed to public use as a power substation, the city had doubts whether it could condemn it. So the city and B agreed that B would voluntarily give the city the land, as long as it could move the power substation elsewhere.

The city identified nine potential sites for the relocated power plant. At least one of these sites was privately owned by “A.” Let’s call “A” Evans. That’s the parcel the city settled on, and it instituted condemnation proceedings to take it by eminent domain. Evans objected, but the trial court agreed with the city, and allowed the taking. In Salt Lake City Corp. v. Evans Dev. Group, LLC, No. 20130741 (Mar. 24, 2016), the Utah Supreme Court reversed.

Even though both railroads and power plants…

Continue Reading Utah: City Can’t Condemn Property From A To Exchange With B, Even Where B’s Use Would Be Public

Rhode Island has a provision in its constitution which allows condemning agencies to take more property than they might actually need “for actual construction” when building “public highways, streets, places, [and] parks or parkways.”  See R.I. Const. art. VI, § 19. This provision also requires that in the event the condemnor doesn’t use all of the property it acquired for the project, the remainder may be sold as long as “the person or persons from whom such remainder was taken shall have the first right to purchase or lease” the property. 

That’s what happened in Estate of Deeble v. R.I. Dep’t of Transporation, No. 14-235 (Mar. 24, 2016), where the DOT took property belonging to Mr. and Mrs. Deeble for a highway relocation project. Mrs. Deeble later died, and so did Mr. Deeble.  Mr. Deeble’s estate succeeded to his rights.

The DOT didn’t use all of the…

Continue Reading Rhode Island: Right To Buy Back Excess Condemned Property Dies With (Former) Owner

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The photo above has pretty much nothing to do with today’s case, except it also involves a Texas barbecue joint. More on the photo after a short review of the Texas Court of Appeals’ decision in Lenox Barbeque and Catering, Inc. v. Metro. Transit Authority of Harris Cnty., No. 14-14-00383-CV (Feb. 23, 2016).

Lenox Barbeque, a “Houston landmark” according to its owner” (stickler’s note: landmark it may be, but we don’t care for that spelling of “barbecue”) sued the Transit Authority for inverse condemnation for lost profits resulting from the authority’s earlier exercise of eminent domain to take a portion of land Lenox owned for a road widening project. That earlier condemnation action resulted in a settlement between the Authority and Lenox under which Lenox got approximately $600 grand for its land and costs, and resulted in a partial demolition and reconstruction of the barbecue’s building. Lenox…

Continue Reading Eminent Domain, Inverse Condemnation, And Texas Barbecue: Selling Property To Transit Authority Precluded Later Inverse Condemnation Claim For Lost Profits

Here’s the long story short in Metropolitan Theater, LLC v. YES Prep Public Schools, Inc, No. 01-15-00480 (Feb. 25, 2016), a decision from the Texas Court of Appeals:

The theater sued “YES Prep Public Schools” because (allegedly), the school screwed up the theater’s agreement to buy a parcel of land from a third party. How did the school screw up the contract? By purchasing the property from the third party itself, and for more money. The theater claimed breach of contract, fraud, and similar. The school responded that as a “public enrollment charter school” it is a governmental entity, immune from such suits. In response, the theater added a claim that if the school is a governmental entity, then it also was liable for a taking of the theater’s property (the theater’s contract to purchase the land). The trial court dismissed the takings claim, and the theater appealed. 

Affirmed. The…

Continue Reading Public School Was Not Acting As A Condemnor When It Purchased Property Which The Seller Already Promised To A Theater

Colorado’s Constitution prohibits the use of proceeds from the state lottery, which are used to fund the “Great Outdoor Colorado Program” Trust Fund from being “used to acquire real property by condemnation through the power of eminent domain.” Colo. Const. art. XXVII, § 9. 

The Town of Silverthorne used trust fund money on a recreational trail project, a part of which required the condemnation of Lutz’s land. Lutz objected to the taking, arguing that the Town lacked the power to take because the constitution “barred the Town’s exercise of eminent domain power to acquire the easement rights over the landowners’ property.” 

In Town of Silverthorne v. Lutz, No. 2015COA17 (Feb. 11, 2016), the Colorado Court of Appeals disagreed, concluding that the constitutional prohibition only extended to using trust fund money to “acquire” land by eminent domain, and since the Town was not using the money to actually pay compensation, but was…

Continue Reading Colo App: Town Can Use Lottery Money For Trail Project, Despite Constitutional Prohibition On Using Funds To “Acquire” Property By Eminent Domain

Worth couldn’t get to his “Section 30 property” except from Evans’ land, or from his own land after fording the 102 River.

So Worth sued Evans in a private condemnation (essentially seeking an easement by necessity). Evans filed a petition alleging that Worth could not use the eminent domain power because Worth had reasonable access to his land by way of crossing the 102 River. “Although the parties agreed there is no public or existing private access to the property, Evans claims Worth could acquire private access to the property across the 102 River by making some minor modifications to the area.”

Too hard, countered Worth. The modifications necessary to make the river crossable “is neither possible nor financially reasonable.”

Unfortunately for Worth, the trial court agreed with Evans. Evans testified that he built a “vented low water crossing” back in 2004 for $15,000. “All you have to…

Continue Reading The Water Isn’t That Wide: Parcel Isn’t “Land Locked” For Private Condemnation If You Can Build A River Crossing

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All of the drama playing out in the North Carolina Supreme Court yesterday as the court heard oral arguments in its review of Kirby v North Carolina Dep’t of Transportation, No. COA14-184 (Feb. 17, 2015) came down — as they often do in these things — to a single question from the bench, and an advocate’s response. At about the 8:40 mark on the the video, this colloquy took place:

Q [Justice Newby]: How would you characterize the benefit, or the purpose of the Map Act. Isn’t it to set in place the value of the property … by restricting improvements or subdivision to keep the ultimate cost of the project at a particular level?

A [NCDOT counsel]: Well that is certainly one aspect or element of the rationale behind the Map Act. The public purpose and benefit can be broadly described as coordinating future road projects with current…

Continue Reading NC Supreme Court Hears Arguments In Important Takings Case

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A pretty straightforward one from the Mississippi Supreme Court. Mississippi Transportation Comm’n v. United Assets, LLC, No. 2014-SA-01181-SCT (Feb. 11, 2016), involved a partial taking by MDOT at the intersection of I-59 and Highway 42.

The state’s appraiser concluded that commercial development was the highest and best use of the land and settled on the sales comparison approach, explaining “that, when taking the sales comparison approach, the appraiser arrives at a value using sales of real estate similar to the subject property, making adjustments as needed for differences between each sale and the subject property.” Slip op. at 3. After concluding that the remainder parcel’s HBU was also commercial development, he opined that just compensation for the taken land was $826,035.

Perhaps not surprisingly, the property owner’s witnesses disagreed. First its appraisers, a real estate agent, and one of its members testified that the remainder parcel could not be…

Continue Reading Mississippi: Like Everywhere Else, In Eminent Domain You Snooze, You Lose – Condemnor Didn’t Object To Appraiser’s Failure To Rely On Market Data

At the recent ALI-CLE Eminent Domain and Land Valuation conference in Austin, Texas, I had the opportunity to interview Ted Balaker, Producer of the upcoming feature film about the Kelo v. New London case, Little Pink House, who took time out of his busy schedule to come to Austin and join us. 

Based on Jeff Benedict’s 2009 book, Little Pink House: A True Story of Defiance and Courage, the film stars Catherine Keener (Capote) as Susette Kelo and Jeanne Tripplehorn (The Firm, Basic Instinct) as the head of the New London Redevelopment agency.

Ted gave us an inside look at the film (which has completed principal filming), brought some photos from the set, and gave us a preview of what the film will cover. 

This is not the entire interview — you’ll have to have registered for the ALI-CLE program…

Continue Reading Podcast: Interview With Ted Balaker, Producer Of The Upcoming Kelo Movie “Little Pink House”

Update: Rick Rayl has this post (“Eminent Domain Takes Center Stage in Republican Presidential Race“) at the California Eminent Domain Report.

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With one exception — a repost of our review of the docfilm You’ve Been Trumped (“If You Are Even Thinking Of Voting For Trump…“), we’ve gone out of our way to avoid getting sucked into the debate on which GOP presidential candidate has the worse record on the abuse of the eminent domain power.

Others have analyzed it better (see, e.g., “Trump Does Not Understand Eminent Domain Law” from Gideon Kanner; “Donald Trump’s lightweight defense of taking property for private development” by Ilya Somin, for example), and there is little that we can add to those expert takedowns.

But we couldn’t resist posting the video above, a Ted Cruz campaign ad attacking The Donald on eminent domain:…

Continue Reading Has The Eminent Domain Meme Finally Jumped The Shark?