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Worth reading: Gideon Kanner, Detroit and the Decline of Urban America, 2013 Mich. St. L. Rev. 1547 (2014), in the forthcoming issue of that august publication. Its not yet available on the law review’s web site, but Professor Kanner has written up a summary on his blog (he might even send you a copy of the complete article if you ask him):

It deals with the causes of decline of older American cities; what caused their populations to leave en masse and move to the suburbs, leaving behind empty swaths of urban desolation (If you want to see how desolate, go to Google, type in “ruins of Detroit” and hit “enter.’ Here are some samples).

His summary includes the key points of the article, and identifies six factors as contributing to urban flight and depopulation, including abuse of the eminent domain power. 

The article is a fascinating and…

Continue Reading New Article Of Note: The Role Of Eminent Domain Abuse In Detroit’s Downfall

Mark your calendars for next week Thursday, May 22, 2014. ALI-CLE, the good folks who put on our annual Eminent Domain and Land Valuation Litigation and Eminent Domain 101 conferences, are sponsoring the above-titled teleconference/webinar. Here’s the program description:

The City of Richmond, California rattled the universe of real estate lenders, trustees, owners, bankers, investors, and insurers (particularly those of residential mortgage backed securities (“RMBS”)), when it proposed to use its eminent domain power for debt relief for homeowners with “underwater” mortgages on residential real property.

Richmond’s proposal has prompted other government entities to consider the plan. They claim that using eminent domain power in this way would benefit the public by providing debt relief for homeowners and help for communities with depressed residential real estate prices. The plan, if adopted by cities and allowed by the courts, would have profound effects on the RMBS, real estate, title insurance…

Continue Reading Upcoming CLE Of Note: Using Eminent Domain To Seize Underwater Mortgages – Legal Issue and Current Realities

We offer this one to you without comment, since we haven’t had a chance to read anything more than the abstract. Sounds intriguing, no? 

This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded affordable housing for the poor. Courts intervened, applying exclusionary zoning doctrines, which led to the enactment of inclusionary zoning programs to achieve a fair share …

Continue Reading New Article: “Inclusionary Eminent Domain,” A “Paradigm Shift In Takings Law”

[Note: we were all set to be the “firstest with the mostest” on these issues, but, as is often the case, Professor Kanner beat us to the punch (“The Clippers and Eminent Domain – It Was Only a Matter of Time“).]

What we’re talking about, of course, is the recent (and ongoing) controversy about the racist statements (allegedly) made by Donald Sterling, the owner of the Los Angeles Clippers professional basketball team, and the reactions, which include “Eminent Domain: The Real Solution to Scumbag Sports Owners.” In that piece, someone named Harvey Wasserman opines that the owners of the Clippers — and the Washington, D.C., professional football franchise — do not deserve to own their respective teams: 

Why do we allow our precious sports clubs to be the playthings of a bunch of wealthy degenerates?

Why aren’t the football, baseball, basketball, hockey and other major…

Continue Reading Use Eminent Domain To “Redevelop” A Sports Franchise, And Take It From An Undeserving Owner?

Check out this language from a recent decision by the U.S. District Court for the District of D.C.:

The CityCenterDC development may be a laudable and exciting public-private partnership, and it may entail a more comprehensive level of urban planning and cooperation than the ordinary project, but the exercise will result in the creation of an enclave of private facilities. What is being constructed will be no more for the use and benefit of the population of the District than any other condominium or hotel: members of the general public will be welcome to enjoy the surrounding sidewalks, and possibly the lobby, and they can spend their dollars in the nearby shops and restaurants, but at the end of the day, they will not be permitted to go upstairs. CityCenterDC is not a public work of the District of Columbia, and the ARB’s decision to the contrary cannot be sustained.…

Continue Reading “Incidental Public Benefits – Such As Employment Opportunities, Increased Tax Revenue” Does Not Make A Project “Public”

We’re not sure whom to root for in this one, the crony capitalist movie moguls who’ve threatened to pull up stakes if the legislature doesn’t give them additional tax credits continue to film the House of Cards series in Maryland, or the members of the state House of Representatives who responded by threatening to exercise eminent domain to condemn the production’s property if it does so. 

You know what? We hope you both lose. Continue Reading A Plague O’ Both Your Houses Of Cards

For the second day running, we’re posting a trial court ruling. This time, it’s from a Kentucky state circuit court, and although it does not have precedential value, we’re guessing it will go further up the food chain to an appellate court, so it’s worth paying attention to the issue now.

In Kentuckians United to Restrain Eminent Domain, Inc., v. Bluegrass Pipeline Co., LLC, No. 13-CI-1402 (Mar. 25, 2014), the court granted summary judgment to a group of Kentucky residents who oppose the Bluegrass Pipeline, a 1,100+ mile private pipeline that would deliver natural gas from the Marcellus and Utica shale formations to the Gulf Coast. The pipeline is planned to run through 13 Kentucky counties. 

Kentucky’s eminent domain statutes allow certain private entities to exercise the power of eminent domain:

Any corporation or partnership organized for the purpose of … operating oil or gas wells or pipeline…

Continue Reading Kentucky Judge: Private Pipeline Lacks Eminent Domain Power – Not “In Public Service” Because It Is Transporting Through Kentucky, Not To Kentucky

This comes our way from Virginia colleague Elaine Mittleman, who sends along a link to a story in yesterday’s Wall Street Journal, “NCAA Tournament: Why Won’t College-Basketball Coaches Stay Off the Court?” 

The story is about how some college basketball coaches are “regular offenders” and routinely ignore the rule that they should not step foot on the court:

Michigan State’s Tom Izzo regularly roams the playing floor. In the final seconds of a loss to Oklahoma last season, Baylor’s Scott Drew leapt onto the court, then fell backward as the Bears missed their last-gasp shot. In a game against Louisiana State this season, Kentucky’s John Calipari—a prolific wanderer—lunged onto the court and shoved one of his players into position.

The rules require every coach to stay within a 28-foot roaming area behind the sideline and on his end of the court. Stepping outside the box can…

Continue Reading March Madness And Eminent Domain. Yes, Eminent Domain.

Yesterday, according to the coconut wireless, was the official last day on the Hawaii Supreme Court for Associate Justice Simeon Acoba. State court justices and judges face mandatory retirement at age 70, and Justice Acoba’s birthday is coming up in March.

While time marched on, so did the process for selecting his successor on the court. Governor Abercrombie has nominated a circuit court (trial) judge, and the Senate Judiciary has scheduled a hearing on the confirmation for next week. Le roi est mort, vive le roi.

While his body of work is large, we didn’t want to let this moment pass without singling out three opinions authored by Justice Acoba: the first a 3-2 majority opinion in favor of property owners, the other a 2-justice dissent in a case involving a municipality’s power to sue itself, and a final stand-alone dissent. The first two, as you may already…

Continue Reading Aloha, Justice Acoba

Our Owners’ Counsel of America colleague William Blake, a partner in the Lincoln  office of Nebraska law firm Baylor Evnen, has put up a guest post on OCA’s Eminent Domain Law Blog about the TransCanada Keystone XL pipeline that recently saw a Nebraska trial court invalidating a state statute as unconstitutional. 

Bill writes:

The recent Keystone XL decision by Lancaster County District Judge Stephanie Stacy (a former partner of this author), is being cast in that mold, but in the process, the litigation is somewhat misunderstood. The ruling is 50 pages long with almost 250 footnotes, and is written in the style of a law review article. The misunderstanding is probably excusable, but it is not an eminent domain case. Eminent domain is only a side effect, and really not much of a side effect. The driving issue has always been the environment, whether the pipeline is going…

Continue Reading TransCanada XL In Nebraska: “Not An Eminent Domain Case”