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Public Use | Kelo

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With our tongues firmly planted in cheeks, the Planning Chairs for the upcoming 42d edition of this popular and venerable Conference bring you this “breaking news” report from San Diego!

As you know, in addition to being the best nationally-focused conference on the subjects that we love and a venue that is nearly certain to have some of the warmest winter weather in the continental United States, and we went on-location from some of the local highlights: the beaches, Torrey Pines, the Zoo, Balboa Park, the Gaslamp Quarter, and Coronado to name but a few.

More about the Conference here, including registration information.

Here are some of the highlights:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to

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Continue Reading Breaking News: Come Join Us For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference, San Diego, Jan 30-Feb 1

Sandefur

We’re starting off the new year with some eminent domain goodness. Tim Sandefur has published “Eminent Domain in the Constitutions of Arizona, Washington, and Other States,” 18 N.Y.U. J.L. & Liberty 167 (2024).

There’s a lot in the piece that will keep you reading, but what we found particularly insightful was how public use/purpose limitations “should operate in practice.” In our opinion, it’s fairly easy to say that the Fifth Amendment (and state constitutions) operate as a robust check on the sovereign power to take property for public use, but a lot more difficult to apply that broad notion to particular circumstances in a way that is both uniform and predictable. Right now, we seem to be operating on a know-it-when-I-see-it basis, but that doesn’t get us to a general rule. This piece goes a long way to getting us to a general rule.

Highly recommended.

Here’s the Abstract:

The nineteenth century was an extraordinarily prolific age of constitution-making. One of the greatest concerns of constitution-makers during this period—particularly in the western states—was the protection of private property against threats such as the use of eminent domain and the damage to property resulting from public works projects. This Article takes the eminent domain provisions of the Arizona and Washington constitutions as a point of departure to examine the innovative ways in which constitution-makers sought to limit government’s power to deprive people of their property. These constitutions—which until the admission of Alaska and Hawaii were the most up-to-date constitutions in America—contain four such innovations: (1) an explicit ban on takings for “private use,” reinforced by prohibitions on judicial deference regarding the definition of “public use”; (2) a compensation requirement for the “damaging” of property; (3) a requirement that payment precede a taking, and (4) a ban on deducting from just compensation awards the amount of purported “benefit” resulting from a taking. The Article traces the origins of these four protections, with reflections on how they should operate in practice.

Check it out

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Continue Reading New Article: Timothy Sandefur, “Eminent Domain in the Constitutions of Arizona, Washington, and Other States,” 18 N.Y.U. J.L. & Liberty 167 (2024)

We usually don’t cover unpublished opinions, but the New Jersey Appellate Division’s reasoning in Hudson County Improvement Authority v. Mariana Properties, Inc., No. A-2686-22 (Oct. 29, 2024) stuck in our craw a bit. 

This is an eminent domain case in which the Authority is taking an easement and intends to construct one of the most “New Jersey” forms of infrastructure, a “jug handle” turn. The stated public use supporting the taking:

The Easement would create a jug handle allowing trucks heading west on the Bellevue Turnpike to turn left onto Crosspike Drive. The Spine Road would provide access to a public facility, the New Jersey Transit Grid Traction Power System Project, and three new industrial warehouses. To do so, the Spine Road would cut across the Property and leave the Property’s southeastern corner , fronting the Belleville Turnpike, separate from its larger remainder. The Easement would total…

Continue Reading NJ App: “Public Use” Is What Condemnor Says It Is, Not What Use Actually Will Be Made

2025 San Diego

Get ready to join your colleagues and friends in San Diego for the 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

The 41st Conference was in New Orleans. Here’s a report of that event, and here are our reports from prior conferences in Austin and Scottsdale.

Here are some of the highlights of the upcoming Conference:

  • Property Rights at the Supreme Court: DeVillier and Sheetz and What’s Next
  • Slow Take: Possession, Rent, Relocation, and Offset
  • The Jury’s View: How Jurors See Your Case
  • From Penn Coal to Penn Central: How to Prove “Too Far”
  • Leveraging Expertise in Eminent Domain Litigation: Working with Land Planners, Engineers, and Other Predicate Experts
  • Kelo at Twenty: What Changed, What Didn’t, and What’s on the Horizon
  • Viva Las Vegas: How the Nevada Judiciary Upheld Property Rights in 180 Land’s Inverse Condemnation Taking
  • Ethics: Guiding the Trolley: Perspectives on Professional Ethics in

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Continue Reading Registration For The 42d ALI-CLE Eminent Domain & Land Valuation Litigation Conference Is Underway (Don’t Miss Out!)

Here are the cases and other materials we discussed in today’s Section of State & Local Government Law Land Use group meeting on takings:

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Continue Reading Links From Today’s ABA Land Use Session

Here’s the latest in a case we’ve been following, which has now results in a cert petition from Michael Berger. This one involves some very intriguing questions about what limits the Constitution places on the government acquiring property for a public use (in this case, an “airport purpose”) but then later deciding it would rather do something else with the property.

Check out the Questions Presented:

The City and County of Denver condemned 8,360 acres of land from Petitioner Monaghan Farms as part of its land acquisition for the creation of the Denver International Airport, including a large area surrounding the facility to serve as an environmental buffer and safety zone. Thirty-four years later, Denver decided to use approximately half that land (which had not been used for airport purposes) for commercial nonaeronautical developments. But the power of eminent domain may only be used to take property for…

Continue Reading New Cert Petition: Does A Taking For Public Use Become A Problem If The Govt Later Abandons That Use?

Those of you who are students of eminent domain and the public use requirement know that in Berman v. Parker, 348 U.S. 26 (1954), the Court (in)famously held, “when the legislature has spoken, the public interest has been declared in terms well nigh conclusive.”

Not only was the Court in Berman signalling that it was washing its hands of the Public Use Clause, but that case also — less overtly — revealed a shift from examining the use the property was to be put, to the purpose for which the property was being acquired, or as the above quote highlights, where a taking furthers the public interest. (A shift that, if you missed it, the Court confirmed in Midkiff where it held the eminent domain and police powers are “coterminous,” and both are reviewed under the deferential rational basis standard.)

If that wasn’t clear enough, the majority in Kelo…

Continue Reading Nevada: Private-to-Private Takings By Privately-Owned Utilities Are OK, Even Though State Constitution Prohibits “transfer … from one private party to another”

Brinkmann

So close: if just one more Justice had agreed, the U.S. Supreme Court would have taken up a public use case we’ve been following, Brinkmann v. Town of Southhold. After all, this one had a lot of the usual markers: a divided court below, an allegation of a lower court split, beaucoup amicus support, and a long-festering issue that has remained open for almost 20 years.

But alas, in this Order, the Court denied the cert petition. Perhaps not surprising given the small number of cases the Supreme Court takes up these days (those of us who have been around for a while remember the days when the Court’s docket was up to 140 argued cases each Term). But nonetheless a disappointment.

One hint for future similar cases: three Justices (Thomas, Gorsuch, and Kavanaugh) “would grant the petition.” We wonder why one more Justice among at least…

Continue Reading By The Thinnest Of Margins, SCOTUS Declines Public Use Pretext “Spite Taking” Case

Today we have a guest post by New York colleague Jennifer Polovetsky, who writes about the intersection of administrative law (Chevron deference) and public use in eminent domain.Thanks to Jennifer (and to the New York Law Journal) for allowing us to republish her intriguing piece.

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Is Judicial Deference to Government Agency Decisions in Eminent Domain Cases at Risk?

by Jennifer Polovetsky

Since 1984, when the U.S. Supreme Court decided the Chevron U.S.A., v. Natural Resources Defense Council case, it has been well-settled law that the judiciary must defer to agency determinations in connection with the interpretation of a statute when the law was ambiguous or unclear (so long as the agency’s interpretation was reasonable and not arbitrary or capricious). See Chevron, 468 U.S. 837 (1984). The Chevron standard has been applied across the board in many legal cases since then.

On June 28, 2024, however, SCOTUS overruled Chevron

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Continue Reading Guest Post (Jennifer Polovetsky): “Is Judicial Deference to Government Agency Decisions in Eminent Domain Cases at Risk?”

Screenshot 2024-09-25 at 09-31-31 206PA21 and 410PA18-2 Town of Apex v Rubin - YouTube

Here’s the latest in a case we’ve been following (and in which we filed an amicus brief in favor of the property owner).

Yesterday, the North Carolina Supreme Court heard oral arguments in Town of Apex v. Rubin. Here’s a link to the recording (YouTube prevents us from embedding it, sorry).

This is a somewhat unusual case. The Town of Apex sought to take an easement across Rubin’s land. She objected, asserting the taking was not for a public use or purpose, but rather to benefit a private party: a developer who needed the easement to connect two of his non-contiguous parcels to the municipal sewer system, a precondition of the Town’s development approvals for his proposed residential subdivisions.

While Rubin’s public use objection was pending, the Town went ahead at installed the sewer line, purportedly under its quick-take power. That was not the best of moves, however, because…

Continue Reading Unringing The Bell: NC Supreme Court Arguments – What Happens If A Taking Lacks A Public Use, But They Take It Anyway?