Eminent Domain | Condemnation

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Remember that case we posted on a few months ago, where the Texas Supreme Court was asked to review the issue of whether trial courts have jurisdiction to supervise eminent domain cases which are in the “administrative” phase and not yet in the “judicial” phase (City of Dallas v. Highway 205 Farms, Ltd., No. 05-13-00951)? 

Last week, the court aked the parties to file briefs on the merits. Our understanding is that this is not a grant of full-blown discretionary review under Texas appellate procedure, but rather an intermediate step to give the court more argument as it considers granting full review. But at least this is a step in the right direction. 

The trial court in the Highway 205 Farms case dismissed the condemnor’s complaint for lack of prosecution because the valuation commissioners took an extraordinarily long time to schedule a hearing (one and…

Continue Reading Texas Supreme Court Wants More Argument: Is Court Powerless When A Condemnor Dithers?

Hardly seems like a decade ago that the Supreme Court gave us eminent domain lawyers something to talk about at cocktail parties: the Court’s infamous and widely-hated decision in Kelo v. City of New London. 

Find out about what the intervening ten years has brought us from the Cato Institute, which is sponsoring a program later this week  about “Property Rights on the 10th Anniversary of Kelo v. City of New London.” 

Featuring Ilya Somin, Author, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law; Scott Bullock, Senior Attorney, Institute for Justice and Plaintiffs’ Counsel, Kelo v. City of New LondonKelo v. City of New London

The full agenda and registration information is here. If you can’t be in D.C. this week, you can watch the conference live…

Continue Reading Upcoming Conference On Kelo’s 10th Anniversary

An interesting decision with an international flavor from the Court of Appeals for the D.C. Circuit, Helmerich & Payne Int. Drilling Co. v. Bolivarian Republic of Venezuela, No. 13-7169 (May 1, 2015).

We suppose that if you are a U.S. oil exploration company operating in Hugo Chavez’ Venezuela, you get used to entertaining a certain amount of risk. But for more than 50 years prior, Helmerich “successfully operated an oil-drilling business in Venezuela through a series of subsidiaries.” Slip op. at 3. But in 2008, after PDVSA, the state-owned oil corporation fell behind in its rig lease payments to Helmerich’s subsidiary and the subsidiary “disassembled its drilling rigs and stacked the equipment in its yards,” the Venezuelan government decided to do something about it:

[O]n June 12, 2010, PDVSA employees, assisted by armed soldiers of the Venezuelan National Guard, blockaded H&P-V’s premises in western Venezuela, and then did the…

Continue Reading Public Use, Venezuelan Style: Nationalization Of Oil Rigs Could Be A “Discriminatory Taking”

California law requires a condemnor to present to the property owner a final pre-trial settlement offer 20 days before trial, and for the property owner to make a final demand. If a court later determines that the condemnor’s final offer was unreasonable and the property owner’s final demand was reasonable, the property owner is entitled to litigation expenses. 

In City and County of San Francisco v. PCF Acquisitionco, LLC, No. A139836 (May 26, 2015), the court concluded that the offer by the city, which “was expressly made ‘contingent on the approval of the Federal Transportation Authority [FTA], the Board of Directors of the San Francisco Municipal Transportation Agency [MTA], and the San Francisco Board of Supervisors [the Board]’,” was unreasonable as a matter of law because it wasn’t a “final offer.” Thus, the trial court wrongly denied the property owner’s request for fees and costs. 

The court held that the…

Continue Reading Cal App: Condemnor’s “Final” Pretrial Offer, Contingent On Approvals From Other Agencies, Isn’t Really Final, Is It?

BfB Full from rumur on Vimeo.

Those of you who have followed the blog for a while know that we’re big fans of the documentary film about the Atlantic Yards eminent domain fight in New York, “Battle for Brooklyn.” See our review here, for example.

If you haven’t had a chance to see it, or just want to see it again, the filmmakers have made it available for streaming.

No spoiler alert because you already know the result of that case. But as we wrote in our review on why the film is very worthwhile, “Battle For Brooklyn explains why property owners fight the taking of their homes and businesses, even when that fight is uphill.” 

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Continue Reading Eminent Domain Docfilm “Battle For Brooklyn” Now Streaming

In a case we’ve been following, the Kentucky Court of Appeals has affirmed a trial court ruling which held that a pipeline company could not exercise the power of eminent domain. 

The Bluegrass Pipeline is a 1,100+ mile private pipeline that would deliver natural gas from the Marcellus and Utica shale formations to the Gulf Coast. It is planned to run through 13 Kentucky counties, although there are no “offramps” for the natural gas actually in Kentucky. 

In Bluegrass Pipeline Co., LLC v. Kentuckians United to Restrain Eminent Domain, No. 2014-CA-000517 (May 22, 2015), the Court of Appeals concluded that the pipeline company did not have eminent domain power because it was not regulated by the Public Service Commission, and therefore was not “in public service” as required by Kentucky eminent domain statutes. See Ky. Rev. Stat. § 278.502 (“Any corporation or partnership organized for the purpose of ……

Continue Reading To But Not Through: Bluegrass Pipeline Must Be PUC-Regulated For The Benefit Of Kentucky Consumers To Use Eminent Domain

From the Iowa heartland, we offer the headline of the week: “Iowa landowner claims he was offered prostitute by oil pipeline company rep.“

And you’re not going to beat this lede any time soon: “A southeast Iowa landowner claims he was offered the services of a prostitute in exchange for allowing a crude oil pipeline to go through his property.” Oh my. 

He says he has the proof, recordings of the alleged multiple offers. “He said his lawyer recommended he not play the recording for the media because it may be used in possible future litigation. He said he would be willing to give them to state investigators if subpoenaed.”

From the steps of the Iowa Capitol he proclaimed, “‘I don’t care if it’s a highway to heaven paved in gold, I don’t want it on our property,’ Tweedy said. ‘And here we go. They came to…

Continue Reading Just “Compensation” Just Took On A Whole New Meaning In Iowa Pipeline Dispute

In West Virginia, mineral rights can be owned separately from the surface estate. Not that unusual; something we learned in the first year of law school, in Property I. You might assume that condemning agencies’ lawyers in West Virginia and similar jurisdictions understand this, and counsel their clients accordingly.

Or maybe not, once you read the opinion of the West Virginia Supreme Court of Appeals in West Virginia Dep’t of Transportation v. Newton, No. 14-0428 (May 13, 2015). 

Mr. Butler owned the surface, but Ms. Newton owned the mineral rights. The DOT was building a highway, and asked Mr. Butler whether it could enter his land to test it. He said yes. The DOT condemned and paid him for the land it needed for its highway project. But it also mined and took limestone for the road from the land. Did the DOT assume that Mr. Butler also…

Continue Reading West Virginia: DOT Should Not Have Mined Privately Owned Limestone Without Owner’s Permission

A short one from the Kansas Supreme Court. In Neighbor v. Westar Energy, Inc., No. 111972 (May, 8, 2015), the court concluded that Kansas’ “savings statute,” which allows a party in certain circumstances to refile a lawsuit that had been voluntarily dismissed without prejudice within six months, applied to eminent domain cases.  

The details involve peculiarities of Kansas practice and eminent domain law, but the takeaway is that the court concluded that despite the somewhat different procedures applicable to eminent domain cases (the valuation is initially determined by a panel of three appraisers, and if a party is dissatisfied with their conclusion, it may “appeal” to the district court), the eminent domain statute also provides that the appeal is “a new civil action” that “shall be tried as any other civil action.” Thus, Kansas’ “savings statute” applied, and allowed Neighbor to refile his appeal of the panel valuation. The…

Continue Reading Kansas: Eminent Domain Litigation Is A “Civil Action” Subject To Same Rules As Other Cases

Even though it is a trial court decision, the opinion in Township of Readington v. Solberg Aviation Co., No. HNT-L-486-06 (May 4, 2015), is well worth reading, because we think the judge gets the process for how courts evaluate claims of pretext correct. 

We posted about this case a few years ago, after the Appellate Division remanded the case with instructions to the trial court to take an objective view of the Township’s claim that the taking of Solberg’s airport was to preserve open space, and not, as Solberg claimed, to thwart Solberg’s plans to expand its facilities and to allow the Township to take control of the enterprise.

The trial court did so, and after a long bench trial, it concluded:

In fine, an objective scrutiny of the collective testimony of the elected officials involved in the architecture and implementation of the eminent domain ordinance concerning the SHA…

Continue Reading NJ Trial Court Finds Open Space Taking Pretextual: “objective scrutiny of the…testimony of the elected officials…reveals a studied attempt to obscure the true purpose of the condemnors”