Public Use | Kelo

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Here’s one we’ve been meaning to post for a while. In Bd. of Comm’rs of Mill Creek Park Metro Dist. v. Less, No. 20MA0074 (Apr. 14, 2022), the Ohio Court of Appeals held that the Park District lacked the authority to condemn Less’s property for a bike path, which did not qualify under the authorizing statute as the “conservation of natural resources.”

The District adopted a resolution to build a bike path on an old railroad right of way, a portion of which had already been constructed, and a resolution to acquire a perpetual easement. Ohio statues require the condemnor to provide written notice to the owner 30 days before filing of an eminent domain case. Ohio law also limits the power of agencies such as the District to take to property for forest reserves, and “the conservation of natural resources.”

The owners objected to the taking, asserting that…

Continue Reading Rational Basis, My Butt! Taking For Bike Trail Isn’t For “Conservation of Natural Resources”

Screenshot 2022-05-02 at 11-51-57 Display event - 2022 Hawaii Land Use Law Conference (LIVE)

It’s back! After a hiatus on the in-person program, the bi-annual Hawaii Land Use Conference is back in-person (see here for a sample of one of our prior presentations at this conference).

May 25 and 26, 2022, downtown Honolulu.

The full agenda and speaker list has not yet been published, but here’s a summary of the program:

Sponsored by the Hawaii State Bar Association and the Real Property and Financial Services Section. Coordinated by David Callies and Benjamin Kudo, his 2-day conference is a must attend for any attorney or professional whose practice involves land use and development. Distinguished land-use practitioners, scholars, planners, and regulators from Hawaii and the Mainland will discuss timely and relevant issues, including:

• Takings 

• Transit Oriented Development (TOD) 

• Seawalls and Shoreline Access 

• Climate Change 

• Affordable/Workforce Housing 

• Ethical Considerations for Real Property Practitioners and Other Professionals

We’ll be speaking during…

Continue Reading Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu – Join Us!

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Here are the links to the cases and other materials that we talked about last Friday at the Georgia Bar Association’s annual Eminent Domain Conference. Our talk was entitled “It’s the Chief Justice’s Property World, We Just Live In It: National Trends in Takings, Property, & Eminent Domain,” and was part of the Eminent Domain Section’s (yes, the Georgia Bar has a Section entirely devoted to eminent domain!) annual conference on the topic. I was honored to have been asked to chat with this august and expert group of lawyers.

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Continue Reading Links From Last Week’s Georgia Bar Association Eminent Domain Conference

Screenshot 2022-02-15 at 07-42-11 Eminent Domain Reports - Publications IRWA

Check this out: the International Right of Way Association’s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.” (This is the “international” right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available. 

We’re posting it here because we’re one of the co-authors. The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to ask me for some input.

Brad and Jillian wrote up more at the California Eminent Domain Report.

The report is short, and doesn’t have a lot of fluff. Just what you wanted.Continue Reading IRWA’s Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2021)

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After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.

Approximately 200 lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals gathered in-person–yes, in-person–at the Scottsdale (Arizona) Resort at McCormick Ranch, to get reacquainted, learn stuff, and renew ties last made in-person in Nashville in 2020. In addition to the live attendance, we also welcomed about 50 remote colleagues, who joined the live webstream.

This was the 39th edition of the Conference, one of the most-established and successful conferences in the ALI-CLE stable of programs.

To those who joined us – thank you. This conference reminded us of why this program is so…

Continue Reading 2022 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Scottsdale: You Should Have Been There!

If you ever get the opportunity to teach in a law school — either as a full-time legal scholar, or part-time as an expert adjunct practitioner — take it if you can. You might think you know a lot about a particular subject, but there’s nothing like spending time at the lectern in a law classroom in front of sharp and eager lawyers-in-training to sharpen your thoughts, and get you to truly understand a subject.

And folks calling you “professor” can evoke a smile.

Sensei

But if there’s one downside to the law school experience from the teacher’s side of the lectern, it’s grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve. In upper-division courses that we handle like Eminent Domain and Property Rights Law and Land Use — where we’re dealing with some very high-level stuff and the quality of the…

Continue Reading The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law’s Eminent Domain & Property Rights, And Land Use Courses

It’s already settled in Michigan (Rafaeli) that a homeowner has a property interest in the equity in her home, and that if she fails to pay the full amount of her property taxes and the government forecloses, the government can’t keep the proceeds in excess of the amount of the tax delinquency.

But that case didn’t account for those tax foreclosures already underway when the Michigan Supreme Court issued its decision in July 2020. Nor did the case account (obviously) for the subsequent legislative amendments providing a limited procedure by which the former homeowner may claim the excess proceeds.

Thus, we get Proctor v. Saginaw County Bd. of Comm’rs, No. 349557 (Jan. 6, 2022), which involves plaintiffs who

Skip over the court’s discussion of the immunity argument (unless that interests you, of course), and go to page 9 where it gets to our stuff: the takings and…

Continue Reading Michigan: Legislature Can’t Abrogate Long-Existing Property Rights Without Compensation

Here’s the State of Texas’s amicus brief in support of the property owners in the case now pending in the Texas Supreme Court about whether the developer of the proposed Dallas-Houston “bullet train” may exercise the delegated power of eminent domain as a “railroad company” or an “interurban electric railway company” as those terms are defined by Texas statutes.

The brief argues that no, this private entity isn’t a railroad company because that definition requires that the rail be presently operating, and this outfit isn’t. The AG also argues that the company doesn’t qualify as an interurban electric railroad because a bullet train isn’t a “small, localized, interurban railway expressly contemplated by statute.” Br. at 14.

And in what is to us the most interesting part of the brief, Texas also argues that an exercise of eminent domain power by this private entity would run afoul of the state constitutional …

Continue Reading Texas AG: Saying You’re Working On The Railroad Isn’t Enough To Actually Be Operating A Railroad, Bullet Train

Check this out, the latest episode of Clint Schumacher’s Eminent Domain Podcast, where his guest is Judge Andrew Edison (who may be familiar to many of you for his ALI-CLE presentation a couple of years ago about the eminent domain angle in the JFK assassination film).

Today, the topic is Robert Moses, NYC taker and redeveloper extraordinaire. We’ve been waiting a long time for this episode, and you won’t be disappointed. 

Here are the liner notes:

U.S. Magistrate Judge Andrew Edison has devoted much time and research to the life and legacy of Robert Moses, a former Parks Commissioner who had a broad and deep impact on the development of New York City’s infrastructure over a period of 50 years. Moses’ career in many ways provides a study of the human cost of eminent domain for different socio-economic communities. Judge Edison’s insight into Moses’ legacy is relevant to…

Continue Reading Latest Ep, Eminent Domain Podcast: The Legacy Of Robert Moses (Judge Andrew Edison)

If you knew nothing about a case except that it was public use challenge to a redevelopment condemnation in New York, you’d be on firm footing if you guessed the outcome was not going to be favorable to the property owner. New York, after all, is what one colleague called the worst in the nation at protecting property owners, and has produced such stinkers are the Atlantic Yards decision, and the Columbia-takes-Manhattanville case. 

The facts in PSC, LLC v. City of Albany Indus. Dev. Agency, No. 432952 (Dec. 9, 2021), might not be as dramatic as those two cases, but the result is the same: the New York Supreme Court Appellate Division upheld a redevelopment taking of a holdout owner, concluding that the agency’s decision to take a public parking lot was not subject to any serious judicial questioning. Same as it ever was.   

The court…

Continue Reading NY App Div: Taking In Albany’s “Parking Lot District” Meets Low Redevelopment Standards, Even Though No One Seems To Want To Redevelop