Public Use | Kelo

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So begins a clip from the forthcoming feature film “Little Pink House,” the picture about the Kelo v. New London case. A phrase that many of us are familiar with, no doubt.

Those of you who are following along with the film remember that even before it was completed, we interviewed its producer, Ted Balaker, at the 2016 Austin ALI-CLE Eminent Domain Conference. 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 had completed principal filming, but was not yet edited), brought some photos from the set, and gave us a preview of what the film covers. 

Now…

Continue Reading Art Imitating Life: “Mrs. Kelo, I have great news!” – ALI-CLE’s Advance Screening Of “Little Pink House”

The South Dakota Supreme Court’s opinion in Montana-Dakota Utilities Co. v. Parkshill Farms, LLC, No. 28174 (Dec. 13, 2017), resolved both a public use question, and one of compensation. In other words, something for every takings maven, no matter your interest. Read on!

This was a taking of permanent easements by publicly-regulated but privately-owned utilities. The owner asserted that just compensation and damages was $840,000. The condemnors valued the take at “only $73,097.” Slip op. at 3. The jury awarded $95,046.

The power-to-take question was whether the condemnation of private property by the power companies was “for public use” because the land taken was not going to be open to the public, nor were the transmission lines. Under South Dakota law, a taking is for public use when the property itself is going to be used by the public. But this was not as simple as the property owners…

Continue Reading Taking Of Power Line Easement Is For Public Use Because Public Has Right To Use The Electricity

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Here’s a story on which we’ve been waiting a while. ProPublica, which holds itself out as “an independent, nonprofit newsroom that produces investigative journalism with moral force,” has published a series of stories on eminent domain, focused on the border wall. As the above blurb notes, we served as one of the story’s sources.

The first piece in the series, “The Taking,” is a tour-de-force. It quickly traces the history of eminent domain (stretching back to Magna Carta, even), and rightly focuses on how the power of eminent domain has been used to take property from the politically powerless, detailing James Baldwin’s famous comment to U.S. Attorney General Robert Kennedy in the 1960’s that “blight removal” was in fact “negro removal.” Kelo is there, of course, as are the post-Kelo reforms. Even the Yellow Book gets a shout out.

But the focus of this series is…

Continue Reading “Abuse, Mistakes and Unfairness” In Border Wall Eminent Domain (But It’s Not Just Happening There)

IMG_20171211_090714This photo of the view from the lectern at the start of the day
proves we really were in the room and not distracted by all the distractions
possible in Las Vegas

Here are the materials and cases which I spoke about earlier today at the CLE International Eminent Domain Conference in Las Vegas. I had the lead off session on updates, and my talk focused on cases that I didn’t cover in the written materials:

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Continue Reading Links And Materials From Today’s Las Vegas Eminent Domain Conference

A very interesting public use opinion from the Colorado Court of Appeals. In Carousel Farms Metropolitan District v. Woodcrest Homes, Inc., No. 2017COA149 (Nov. 30, 2017), the court invalidated an attempted taking of Woodcrest’s property, concluding that the condemnation was neither for a public purpose, nor necessary for that purpose.

The facts of the case are straightforward, and rather than paraphrase, we’ll just quote the opinion:

¶ 1    Appellant, Woodcrest Homes, Inc., owned a .65-acre parcel of land (referred to as Parcel C) outside the Town of Parker. Century Communities, Inc., and its subsidiaries (collectively, the Developer) acquired the parcels to the north and south of Parcel C, with a plan to create a development — Carousel Farms — comprising all three parcels. Under its agreement with the Town, the Developer could not move forward with its development plan until it acquired Woodcrest’s land.

¶ 2    Woodcrest, though…

Continue Reading Attempted Taking For Public Road Not A Public Purpose, Not Necessary: Alter Ego Developer, Not The Public, Is Beneficiary Of The Taking

The complete agenda and faculty list has now been posted on the ALI-CLE website, and early registration is open! Go now and reserve your spot. 

We paid a visit to Charleston recently, the venue for our January 2018 conference, to scout it out. We can report that we’re going to have a great time, for sure. When we polled you last year, you selected Charleston as your first choice (a new city for the Conference), and it is shaping up to be a very good selection. In addition to the usual lineup of CLE programming, there are a ton of things to see and do in the area. We recorded a short video down at the “four corners of law” (the intersection of Meeting Street and Broad Street), to give you a preview (the weather was much better than in our 2016 preview video, too).

As an added…

Continue Reading 2018 ALI-CLE Eminent Domain Conference – Agenda And Faculty Now Posted

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University of Hawaii Law School Professor David Callies last night was presented with William and Mary Law School’s Brigham-Kanner Property Rights Prize which is “presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.” 

As W&M notes about Professor Callies, a “prolific scholar whose work explores land use, property, and state and local government law, Callies has lectured around the world and authored or collaborated on about 90 articles and 20 books. He has been a member of the prestigious American Law Institute since 1990 and is the Benjamin A. Kudo Professor of Law at the University of Hawaiʻi at Mānoa. Prior to entering academia, he was an attorney in private practice and an assistant state’s attorney.”

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We’re spending today in a series of panels which explore and build upon Professor Callies’ lifetime of work. Michael Berger, a past Prize winner, kicked off…

Continue Reading Professor David Callies Awarded William & Mary Law’s Brigham-Kanner Property Rights Prize

A quick one since we’re in transit, and don’t really have time to post much. But that doesn’t mean that the Fifth Circuit’s opinion in Boerschig v. Trans-Pecos Pipeline, L.L.C. , No.  16-50931 (Oct. 3, 2017), isn’t worth your time to read in-depth. 

Here’s the setup:

Texas law allows a natural gas utility to condemn land for “public use.” Tex. Util Code § 181.004; Tex. Const. art. I, § 17(a). Trans-Pecos Pipeline, LLC exercised that authority and initiated a condemnation proceeding to obtain a 50-foot wide permanent right-of-way and easement on John Boerschig’s ranch. The ranch is along the route of a 148-mile pipeline Trans-Pecos is constructing in west Texas that terminates at the Mexican border in the middle of the Rio Grande.

Boerschig contends that by ceding condemnation power to a private company, Texas eminent domain law offends due process. His argument principally relies on the private nondelegation…

Continue Reading 5th Circuit: Texas Delegating Eminent Domain Power To A Private Pipeline Isn’t A Due Process Problem

ALI-CLE2018

It’s not too early to reserve your spot at the 35th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Francis Marion Hotel in historic downtown Charleston, South Carolina, January 25-27, 2018. 

We’re finalizing the Conference details, but can report that the program will, as usual, feature expert presenters from across the nation, and both an in-depth update on the subjects we love, and a “101” track for those new to the field or who would appreciate a refresher. Check out some of the topics:

  • Takings and Damaging by Flood: Case Selection Advice For Savvy Practitioners
  • Quarterbacking the Case: Blocking Defenses, Controlling the Witnesses, and Converting for Verdicts
  • We’ve Been Working on the Railroad: Utility Crossing Disputes
  • Protecting Your Record,and Anticipating Appeals
  • Lucas 25 Years Later: Property Rights in the Age of Global Warming
  • Building and Growing Your Eminent Domain Practice With

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Continue Reading 2018 ALI-CLE Eminent Domain Conference: Early-Bird Registration Discount Now Posted

ALI 2018 header

ALI-CLE has posted up the early bird registration page for the 2018 edition of the Eminent Domain and Land Valuation Litigation Conference, to be held January 25-27, 2018 in an exciting new venue, Charleston, South Carolina. 

We are putting the agenda and faculty together for the Conference (which, as always, will include the Condemnation 101 track for those new to eminent domain practice, or who could use a refresher course). There’s a lot going on in our field, and we will put out the details and ALI will update the site once we finalize everything.  

There’s a benefit to early registration: this year’s conference in San Diego was at capacity, and signing up now will both reserve your spot, and get a discounted registration fee. Continue Reading 2018 ALI-CLE Eminent Domain & Land Valuation Litigation (Charleston, SC) Early-Bird Discount Registration Open