Public Use | Kelo

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Here’s what we’re reading this fine summer Monday:

  • Land Use Institute – Although we won’t be able to attend the upcoming annual ALI-ABA program in Boston due to a scheduling conflict, we have attended several times in the recent past, and can highly recommend it. The faculty, as usual, is stellar, and includes colleagues Michael Berger,  Amy Brigham Boulris, Bob Foster, Patricia Salkin, Julie Tappendorf, and Gideon Kanner. 
  • 2011 Takings Conference – Another law conference (November 19, 2011), this one devoted (mostly) to how to defeat regulatory

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Continue Reading Monday Round-Up: Vested Rights, Land Use Institute, And More

Bulldozed_home Note to appellate practitioners: it’s not a good sign when an opinion’s treatment of your arguments starts with the phrase “[t]o the extent we are able to discern the arguments, we address them below.”

As that statement telegraphed, it didn’t go very well for the appellee in Main v. Royall, No. 05-09-1503-CV (July 25, 2011). In that case, the Texas Court of Appeals (Fifth District) held in a defamation suit that the author of a book about eminent domain is a member of the electronic or print media asserting a First Amendment claim, and was therefore entitled to appeal the interlocutory denial of a motion for summary judgment, and that the book for the most part was not defamatory as a matter of law.

As we noted earlier here, here, and here, Carla Main, the author of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for …

Continue Reading Texas App To Developer: Eminent Domain Book Just Not That Into You

Goodtobeking As Mel Brooks once said, “It’s good to be the King.” That’s especially true in eminent domain law. Even when you’re not the King.

Exhibit A: the plaintiff in this federal condemnation action was a railroad, the Dakota, Minnesota & Eastern Railroad Corporation. It brought suit against 97.943 acres of land, more or less, in Wyoming. But really agains the owners of those acres, Mr. and Mrs. Simmons.

Did the railroad need the land? Not really. It admitted it couldn’t build the project in the foreseeable future. It filed the action on the eve of the date that Wyoming’s post-Kelo eminent domain reform statutes took effect, leading to the inference it was merely land banking.

So the property owners fought the condemnation. But after a two week trial, on the eve of the district court issuing its ruling, the railroad — perhaps sensing the handwriting on the…

Continue Reading Despite “Complete Vindication” After “An Abuse Of The Condemnation Process,” No Costs

In some states, Hawaii included, the question of whether a taking is “for public use” is entitled to full resolution before addressing the question of just compensation. See, e.g., Haw. Rev. Stat. § 101-34 (public use challenges are entitled to immediate trial, and as-of-right interlocutory appeal). This makes sense since questions of value come into play only after final determination of whether the condemnor can take the property at all. [Sidebar: in Hawaii, eminent domain cases have calendar preference over all other civil actions, and the courts have a statutory obligation to hear and decide condemnation actions “quickly.”  Haw. Rev. Stat. § 101-9.]

But this is not a matter of statute in some jurisdictions, including North Carolina. Meaning that its up to the courts to determine whether the interlocutory issue of whether a trial court’s public use determination is immediately appealable. In Town of Apex v. Whitehurst…

Continue Reading NC App: Public Use Challenge Is Immediately Appealable

Yesterday, the California Redevelopment Association, the League of California Cities and two Bay Area municipalities filed an original jurisdiction petition for writ of mandate in the California Supreme Court asserting that the California Legislature’s recent bills to eliminate redevelopment agencies, or allow them to continue to exist if they pay tribute to the state, violate the California Constitution. According the press release accompanying the petition:

The central claim in the lawsuit is that AB 1X 26/27 violate Proposition 22, the constitutional amendment passed by 61 percent of California voters in November 2010, just eight months ago. Prop. 22 was passed by voters to “conclusively and completely prohibit State politicians in Sacramento from seizing, diverting, shifting, borrowing, transferring, suspending, or otherwise taking or interfering with” revenue dedicated to local government. The revenues protected by Prop. 22 specifically include the annual increments of property taxes allocated to California’s 400 redevelopment…

Continue Reading Can’t Touch This: Cal Redevelopment Agencies Sue State

On July 14, 2011, we filed this cert petition (also posted below), which asks the U.S. Supreme Court to review the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 242 P.3d 1136 (Haw. 2010). In that case, the Hawaii court upheld the taking of land on the Big Island, holding that the asserted public use was not a pretext to hide the overwhelming private benefit to the developer of the luxury Hokulia project.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that “unusual” exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan…

Continue Reading Cert Petition: After Kelo, When Is Eminent Domain Pretextual?

stlouis

Is this a “sign?” The city of St. Louis thought so. The city’s building inspection department issued a citation to the folks who commissioned the painting on a residential duplex, telling them they needed a permit. So they asked the city for one.

Denied. The zoning code does not allow for such signs. It’s too big. The building doesn’t have street frontage. Signs can only be incidental to the building’s use, and the building is a two-family home.

Appeal to the Board of Adjustment. No adjustment: it’s not exempt as a “work of art,” a “civil symbol,” or (get this) a “crest.” Those things are not subject to the sign code. Paint a big flag, a mural, (or your family crest?) and you don’t need a permit. But this is a sign. And signs need a permit.

Next stop, state court. The sign guys filed a lawsuit for…

Continue Reading Eighth Circuit Sees The Sign – Eminent Domain Abuse Protest Mural Gets First Amendment OK

upFrom Oregon Live comes the report that a Portland attorney who was fighting to keep his office building (a converted Victorian), from being taken, has prevailed.

After a years-long fight in which Randal Acker, a commercial litigation lawyer, vowed to “do eminent domain law for the next two years to save the house” if necessary, the other side relented and allowed him to keep the house in place and decided to build the Portland State Dormitory around it.

Noting the resemblance of the home to the house in the Pixar animated film Up, the lawyer recently had 400 helium filled balloons affixed to its chimney, just like in the film.

Wish we could have been there.

Turns out this did not devolve into a typical eminent domain fight and that positions did not harden, but that reasonable minds prevailed:

Construction on the $90 million College Station [dormatory] started in…

Continue Reading Portland Lawyer Fighting To Keep His Property Goes “Up”

“Kelo, Parents and the Spatialization of Color (Blindness) in the Berman–Brown Metropolitan Heterotopia” by Denver lawprof Tom Romero II.

This article utilizes interdisciplinary methodology and resources to describe the manner by which legally enforced color lines on a local scale became paradoxically proscribed, yet essential to what I call the multi-racial heterotopia. As a consequence of scholars largely having failed to make the link between eminent domain and school integration jurisprudence in the construction of the modern metropolitan United States, the article makes a timely and important intervention to the combined analysis of these most recent Supreme Court cases.

Posted on SSRN here. Topic seems worthy of examination, but what a title!Continue Reading Winner: Best Title For Law Review Article About Kelo (I Think)

My Pacific Legal Foundation colleague and eminent domain scholar Tim Sandefur has posted an analysis of the legislation proposed by California’s redevelopment agencies in reaction to Governor Brown’s call to eliminate them (“California Redevelopment Agencies fight to defend their turf“).

Sandefur deconstructs (or should we say “redevelops”) the agencies’ claim that the bill will “tighten the definition of blight” — 

Section 33031 of the California Health and Safety Code defines the word “blight,” and AB 1250 does not change that section at all. This is problematic because the standards for “blight” are extremely vague: they include things like “nearby incompatible land uses that prevent the development,” “a high crime rate,” or “conditions that prevent or substantially hinder the viable use or capacity of buildings or lots.” What exactly do these phrases mean? Answer: whatever the government says they mean.

AB 1250 does not change these criteria. Instead, it…

Continue Reading Sandefur Redevelops A Proposal To “Tighten The Definition Of Blight”