Public Use | Kelo

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A question for those of you who do a lot of straight condemnation work: do you drive roads and highways with a slightly different outlook than the rest of the motoring public, especially on those roads where you represented a property owner defending against eminent domain? While others see signs and intersections and the like, is your focus instead on your owners’ (former) property, the construction easements, the appraisals, and the issues you argued in the taking case?

Call us weird, but that’s how we drive “our” roads.

Recently, we had that old deja vu because we were in the neighborhood of a road in which we represented two of the condemned. The courthouse in Kona on the Big Island is a stone’s throw from a County of Hawaii road project, only recently completed, that was one of our mostly hotly contested eminent domain cases, one that resulted in three…

Continue Reading Ode To A Road

Here’s one we’ve been waiting for.

In this post (“Sorry Not Sorry? Connecticut Supreme Court Has A Chance To Make Amends For Kelo“), we  previewed the arguments and briefs in a case in which the court was considering whether the Transportation Commissioner’s power under Connecticut law to take “land, buildings, equipment or facilities” includes bus companies’ exclusive state-granted rights to operate bus routes. The bus companies have what amounts to a monopoly under state-granted certificates of public convenience.

In Dattco, Inc. v. Comm’r of Transportation, No. SC19558 (Dec. 27, 2016), the court held that no, the power to take facilities does not include the power to take bus franchises. We recognized in our preview post that this was not a chance for the court to wholly make amends for its Kelo decision because the issues presented are obviously different. But even with that caveat firmly in mind, this…

Continue Reading Whaddaya Know, There Are Some Limits To Eminent Domain In Connecticut

There’s been a few decisions recently about entry to private property in anticipation of condemnation, the most prominent being a ruling from the California Supreme Court that entries which exceed relatively minor inconveniences are takings; the court “reformed” the entry statute to import some of the protections of the eminent domain process, but otherwise gave condemnors a lot of leeway. Also, pipline cases around the country have thrust the ability of potential condemnors to come onto property into the public eye. 

This opinion from the Supreme Court of Appeals of West Virginia is the latest on that topic. The court held that a precondemnation entry by a pipeline company to do a survey would not be for a public use, and thus the pipeline company did not have the power of eminent domain. Under West Virginia law, a private company may exercise the power only when the taking would be for…

Continue Reading West Virginia: No Entry For Pipeline Survey Because It’s A Private Taking

A piece from noted eminent domain scholar Professor Ilya Somin, “Beware misguided ‘mainstream’ legal thought – ‘Kelo v. City of New London’ in perspective” at the Washington Post. 

The thrust of his piece (and a forthcoming law review article) is that Kelo isn’t some nutty decision, but was the product of “mainstream legal thought gone off the rails.” Comparing it to Plessy, Korematsu, Buck v. Bell, and Dred Scott, Professor Somin writes:

earlier precedents holding that almost anything can be a public use justifying the taking of property – precedents that ended up authorizing the forcible displacement of hundreds of thousands of people (most of them poor and politically weak). For the most part, the justices who voted for these decisions were not rogue extremists, but respected members of the legal establishment relying on mainstream reasoning and habits of thought.

A truly extreme, non-mainstream…

Continue Reading Somin: Kelo Not An “Extreme” Decision, But Result Of Mainstream Legal Thought

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Several years ago, William & Mary Law School’s Brigham-Kanner Property Rights Conference departed its usual Williamsburg, Virginia venue and held the event in Beijing. Holding the conference there allowed U.S. legal scholars and property law practitioners to share ideas and compare our ways with our PRC counterparts. The event was a great success.

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Now, W&M has followed up with another international venue for the Conference: the World Court (Peace Palace), in The Hague, Netherlands.

The Conference kicked off last night with a reception honoring this year’s Brigham-Kanner Prize winner, Peruvian economist Hernando de Soto, who opened the Conference this morning with a summary of his work and theories. One of the most intriguing is that the “Arab Spring” was a cry for property and economic rights.Count us as convinced. 

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The panels began their presentations today. Ours focused on how property rights contribute (or not) to developing nations. My…

Continue Reading In Peace And In War: 2016 Brigham-Kanner Property Rights Conference At The World Court

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The complete agenda, faculty list, and other information (including registration and early and group discounts) for the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference is now up and ready. 

The conference will be held January 26-28, 2017, at the Westin San Diego. Please consider joining us for the premier national conference on all things related to eminent domain, takings, and property law. You will learn a lot, meet your colleagues from around the country, earn a ton of CLE credits, and have some fun too. 

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Continue Reading ALI-CLE 2017 Eminent Domain And Land Valuation Litigation Agenda, Faculty List, And Registration Now Live

Recall that in the wake of the overwhelmingly negative reaction to the U.S. Supreme Court’s decision in Kelo v. New London, at least one of the Connecticut Supreme Court justices whose previous ruling was upheld, expressed his regrets. Others have made similar remarks. 

Well, here may be a chance for the Connecticut Supreme Court to right the ship, so to speak. Later this month, the court will be hearing oral arguments in a case asking whether a state agency’s power to take “land, buildings, equipment or facilities” includes bus companies’ exclusive state-granted rights to operate bus routes. The bus companies have what amounts to a monopoly under state-granted certificates.

While this case doesn’t squarely present the same issue as in Kelo (that may be coming later, in other cases which are making their way up the Connecticut chain), it does represent a chance to see whether the Connecticut Supreme…

Continue Reading Sorry Not Sorry? Connecticut Supreme Court Has A Chance To Make Amends For Kelo

We all know that the Supreme Court’s 5-4 decision in Kelo is lousy. See “Kelo at 10: Still Stinks, And A Decade Has Not Lessened The Odor.”

Or at least most of us know that. But other than crying in our beer, or trying to get the case overruled (efforts continue!), what is there to do, given that the decision remains “good law?”

Well, here’s some suggestions from our Owners’ Counsel of America and ABA State and Local colleague Dwight Merriam, to soon be published in the Connecticut Law Review, “Time to Make Lemonade from the Lemons of the Kelo Case,” 48 Conn. L. Rev. ___ (forthcoming 2016). 

Intrigued? Here’s the abstract:

The decision in Kelo v. New London only addressed the constitutionality of the eminent domain process used to take Susette Kelo’s home. Given the four corners of the case…

Continue Reading New Law Review Article: “Time to Make Lemonade from the Lemons of the Kelo Case”

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 ALI2017

We’ve teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you’ve been waiting for.

This is the “big one,” our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we’re on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we’ll post more in the next few days):

  • Relocation, relocation, relocation: we are featuring two sessions on this

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Continue Reading Details: ALI-CLE Eminent Domain And Land Valuation Conference – San Diego, January 26-28, 2017