Public Use | Kelo

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This morning at the ALI-CLE Eminent Domain and Land Valuation Conference, we made a presentation (along with Cornell lawprof Robert Hockett and moderator Jim Burling) on the issue of the use of eminent domain to seize “underwater” mortgages.

Late breaking: it must have been something we said – the Joint Powers Authority (the agency formed by San Bernardino County and two county municipalities to study the issue) today announced it would not use eminent domain to take underwater mortgages, noting that “the group decided to give up on the idea due to a lack of public support. ‘We are taking that off the table,’ [the chief executive and chairman of the JPA] said Thursday.”

Here’s the video we mentioned, an interview with the chairman of Mortgage Resolution Partners for the views from the outfit that stands to benefit from the use of using eminent domain to take underwater mortgages.

Continue Reading Materials And Links From Today’s ALI-CLE Presentation On Condemnation Of Underwater Mortgages

If you have followed the Atlantic Yards eminent domain abuse fight (so well captured in the docfilm Battle for Brooklyn), you know there are a handful of blogs that chronicle the situation in real time, often with great passion.

We checked in today with one of the leading blogs, noLandGrab today, only to find out that back in November it published its last post because, according to the New York Times, it was time “to hang up the keyboard.” See “Opponents of Atlantic Yards Are Exhausted by a Long, Losing Battle.” Continue Reading No Land Grab Blog Rides Off Into The Sunset

Update: More here (Ilya Somin at Volokh), and here (Ilya Shapiro at CATO).

A coalition of property rights advocates including the National Federation of Independent Business Small Business Legal Center, the CATO Instiutute, the Owners’ Counsel of America, and lawprofs James Ely, David Callies, Todd Zywicki, Randy Barnett, Eric Claeys, and D. Benjamin Barros — has filed an amicus brief brief supporting the cert petition in Ilagan v. Ungacta, No. 12-723 (cert. petition filed Dec. 7, 2012).

Lawprof Ilya Somin, a noted scholar on public use issues, authored the brief, which argues:

This case presents an opportunityfor this Court to clarify the definition of a “pretextual taking” under thePublic Use Clause of the Fifth Amendment. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court ruledthat “economic development” is a public use justifying the use of eminentdomain. But…

Continue Reading Amicus Brief In Eminent Domain Pretext Case: Time For SCOTUS To Clear Up The “Extreme Confusion”

Cover_42_3_ The Summer 2012 issue of the Urban Lawyer, the law review published quarterly by the ABA’s Section of State and Local Government Law and UMKC law school is now available on-line, and includes my short article on the latest developments in public use in eminent domain law.

To download your copy, click here. The article covers the “common carrier” issue from Texas, necessity in private takings, several procedural issues including appealability of a determination that a taking is (or isn’t) for public use, and First Amendment spin-off issues related to eminent domain. (Recent Developments in Eminent Domain: Public Use,  44 Urb. Law. 705 (2012)).

If you are not already a Section member, please consider it – the included subscription to the Urban Lawyer is one of the most worthwhile benefits. Continue Reading New Article – Recent Developments in Eminent Domain: Public Use

LgoIt’s time for the annual ALI-CLE (fka ALI-ABA) eminent domain conferences, to be held January 24-26, 2013 in Miami Beach, Florida.

In the “advanced” course, Eminent Domain and Land Valuation Litigation, we’ll be covering topics such as “Condemning Underwater Mortgages,” “An Engineer’s Role in Damage,” “How To Develop and Implement a Business Plan for an Eminent Domain Practice,” and “Condemnor Beware: What Activities Will Make You Liable for Pre-Condemnation Damages.” Along with Pacific Legal Foundation’s Jim Burling and Cornell lawprof Robert Hockett, I’ll be speaking on the panel about underwater mortgages. More details on the agenda and the faculty here.

The companion course, Condemnation 101: How to Prepare an Eminent Domain Case, covers the basics of eminent domain law, and although designed as an overview of condemnation law for the beginner or general practitioner, it’s a great refresher course for the seasoned eminent domain lawyer. More…

Continue Reading Upcoming ALI-CLE Eminent Domain Conferences

In the nearly eight years since the Supreme Court’s infamous decision in Kelo v. City of New London, the Court has yet to provide any clarification about what it meant when it said that a taking will not survive public use analysis when the proffered justification is a pretext to private benefit. Despite massive uncertainty and conflicting rulings from the lower courts about how to apply this standard and more than a few requests for guidance (including our own), the Court has not taken up a case.

Here’s the latest, a cert petition out of Guam, that we think stands a pretty decent chance to grabbing the Court’s attention. The Question Presented sets out the facts well, so we won’t go into the details of the case, but let’s just say that this condemnation doesn’t just seem to lack a public purpose, or appear that it was for…

Continue Reading New Cert Petition: Private Purpose Pretext In Economic Development Takings

Here’s what we’re reading today:

  • We know you probably read Professor Gideon Kanner’s blog daily, but in case you missed his thoughts about the U.S. Supreme Court’s opinion in Arkansas Game and Fish Comm’n v. United States, No. 11-597 (Dec. 4, 2012), please read them here. Today’s must-read.
  • Today is Pearl Harbor day, so we are linking to our in-person report from last year’s remembrance ceremony.
  • Check out the cert petition in Johnson v. Paynesville Farmers Union Cooperative Oil Co., No. 12678 (Nov. 29, 2012). The question presented is somewhat opaque and we don’t think there’s much chance that it will grab the Court’s attention, but it does involve an interesting issue about pesticide drift and organic certification. The petition challenges the Minnesota Supreme Court’s dismissal of an organic farmer’s nuisance and negligence per se claims because federal regulations do not regulate pesticide drift. Here’s the Court’s

…
Continue Reading Friday Round-Up: Flood Takings, Pearl Harbor, Organic Farming

chinagrave

China again. And this time, the holdout is not going to die (what we fear happens to those who dare object there), but is already gone. According to this story (more photos inlcuded), “Developers bought a cemetery and paid villagers to relocate the remains of their loved ones. All except one. The grave has not been moved as the family is waiting for an auspicious date to do so and a reason from the developer for choosing this site, according to the owner of the tomb. The developers are now offering to pay nearly $160,000 to have it moved. The building is scheduled to be completed by April 2013, but for now, construction continues around the gravesite.”

Life imitates art from the Clancy Brothers. But it’s not just in China that these things happen. See these examples from Chicago and Honolulu. Continue Reading They Really Are Moving Father’s Grave To Build

Gideon Kanner recently asked “Whatever Happened to Condemnation of Underwater Mortgages?”

Watch this November 23, 2012 interview with the chairman of Mortgage Resolution Partners for the views from the outfit that proposed the idea of using eminent domain to take underwater mortgages. He says the idea is “not dead at all … but it’s a fair characterization to say it’s moving slowly.” When asked whether there is any jurisdiction in which it will defintely happen, he responded that there are places where MRP is “actively working” with government, and he is “highly confident” that it will happen.

In a classic case of burying the lede, be sure to pay attention at the 5:15 mark where he notes that “this is about economics … they own a piece of paper, it has a value. You might argue about what that value is or isn’t, but they [the bondholders]…

Continue Reading Condemnation Of Underwater Mortgages Not Off The Table Yet

Here’s a short one from the Ohio Supreme Court. In City of Girard v. Youngstown Belt Railway Co., No. 2012 Ohio 5370 (Nov. 21, 2012), the court held:

In this case, we are called upon to determine the extent to which the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. 10101 et seq., preempts a state’s eminent-domain action over a parcel of property owned by a railway company. Based on our interpretation of the legislation at issue and its application to the unique facts of this case, we find no preemption, and we therefore reverse the judgment of the court of appeals.

Slip op. at 1-2. Not really an eminent domain heavy issue, and if federal preemption is your thing, check it out. More here from the local newspaper.

City of Girard v. Youngstown Belt Railway Co., No 2012 Ohio 5370 (Nov. 21, 2012)Continue Reading Ohio: Federal Law Does Not Preempt City’s Condemnation