Public Use | Kelo

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As readers know, from time to time, we undertake what might be called “eminent domain tourism” — visiting the sites of famous and infamous cases when we’re in the neighborhood. Hadacheck, Kaiser Aetna, Nollan, Dolan, and PruneYard, for example.

Perhaps the best illustration of the “holdout” comes from Seattle (see this 2008 story from the New York Times for the backstory), and during a recent trip there, we went by the semi-famous “Up House” formerly owned by the late Edith Macefield, so named because in 2009, “Disney publicists attached balloons to the roof of Macefield’s house, as a promotional tie-in to their film, Up, in which an aging widower (voiced by Ed Asner)’s home is similarly surrounded by looming development.” 

There’s still some balloons tied to the fence, but the house has definitely seen better days. The Wikipedia entry tells…

Continue Reading Holdouts And Regrades, Seattle Style

Check out this post (“Did the Sixth Circuit Unintentionally Adopt an RLUIPA Equal Terms Test?“) from RLUIPA gurus Evan Seeman, Karla Chaffee, and Dwight Merriam on their RLUIPA Defense blog, analyzing the Sixth Circuit’s recent opinion in Tree of Life Christian Schools v. City of Upper Arlington, No. 14-3469 (May 18, 2016).

We won’t go into the details because our colleagues cover them pretty well, but wanted to point this one thing out. The issue in the case was whether the city could be held liable under RLUIPA’s “equal terms” provision (which requires local governments to impose land use regulations on religious and nonreligious users on an equal basis), after it refused to allow a religious school to rezone property in an economic development zone to allow the school.

The school didn’t conform to the area master plan, which allowed only uses which would increase the government’s…

Continue Reading 6th Cir: Avoid Your RLUIPA Problems By Condemning Church-Owned Property, Then Selling It “to a buyer that the government thinks offers superior economic benefits”

Update: Oral argument audio posted above. 

Update: “State’s High Court Hears Arguments In Mountain Water Appeal On Wide-Ranging Issues” 

Update: “Montana Supreme Court Justices quiz lawyers on eminent domain, finances“

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The condemnation of privately owned utilities is a thing these days. Seems like many local governments believe they can do it better than the private owners, and exercise the eminent domain power to force the acquisition. But in these cases, isn’t the property already being put to public use? Indeed, the exact same public use? 

This morning, the Montana Supreme Court is hearing oral arguments in a case we’ve been following that will address the meaning of the phrase “more necessary public use” in Montana Code Annotated § 70-30-111  and and what kind of proof is necessary to support such a claim. The city of Missoula is attempting to condemn Mountain Water Company, a private company which supplies…

Continue Reading Montana Supreme Court Live Streams Arguments In “More Necessary” Public Use Case: Can A Municipality Seize The Local Water Utility?

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

Mississippi, like many states, by statute allows private parties to condemn a neighbor’s land for use as a private access road, if doing so is “necessary” for a landlocked parcel to gain ingress and egress. This power is subject to limitations: for example, the parcel must be truly landlocked with no other access. Mississippi apparently has an additional requirement, that the power cannot be exercised within the limits of an incorporated city or town. 

The property at issue in High v. Kuhn, No. 2015-IA-00072-SCT (Miss. Mar. 17, 2016) is within the incorporated City of Gulfport, so the owner objected when his neighbor tried to exercise the power to take his land for access to an otherwise landlocked parcel. The trial court, however, held that the owner had waived the right to assert this objection by not objecting within five days as required by another statute. Besides, the court held, the incorporated…

Continue Reading Mississippi: Statute That Says No Private Takings For Access Within City Limits Means Just That

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

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?

Here’s what we’re reading today:

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Continue Reading Tuesday Round-Up: Inversely Condemning Flint, “Well Nigh Conclusive?,” Parcel-As-A-Whole