Public Use | Kelo

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The Pacific Legal Foundation has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate Division…

Continue Reading Amicus Brief In Columbia Eminent Domain Case: What Level Of Scrutiny Does Kelo Require?

Here are the slides that I used and links to the cases I discussed in “The Whacky and Wonderful World of Eminent Domain After Kelo.”

My presentation was entitled “Schlimmbesserung – Eminent Domain for Redevelopment.” Schlimmbesserung is one of those wonderful German compound words that have no direct translation into English, and means “worsening by improvement.” That term summed up for me how several of the more notorious efforts to use eminent domain in redevelopment efforts have fared (e.g., Poletown, Kelo). Professor Gideon Kanner recently posted some thoughts on “redevelopment blunders” here. The Owners’ Counsel of America’s blog has a summary of the seminar here.

Joining me on the panel was Andrew W. Schwartz, a partner in San Francisco’s Shute, Mihaly & Weinberger, who suggested that redevelopment was good, and that eminent domain was a necessary part of the process when market forces break…

Continue Reading Materials And Links From The Webconference “Eminent Domain After Kelo”

Eminent Domain NYC There was a time when eminent domain lawyers practiced in relative obscurity. Other than a select few, not many knew about condemnation or eminent domain law, or regulatory takings or inverse condemnation. 

But ever since the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), which permitted the taking of a nonblighted home for economic redevelopment (someone else might make more economically productive use of your property than you do), “eminent domain” has become a household word.

These days, it even inspires art.

Brooklyn artist Bettina Johae’s new project is “eminent domain: nyc.” Here is the artist’s description:

Bettina Johae’s project, “eminent domain, nyc” (2010), investigates the use of eminent domain—for public and for private use—in New York City over the past centuries: from the creation of Central Park and the forming of New York’s streets in the 19th century, via…

Continue Reading Art Imitates Life In eminent domain: nyc

We knew that, but in case you didn’t take our word for it, here’s a judge from the New York Supreme Court’s Appellate Division to tell it like it is. In Uptown Holdings, LLCC v. City of New York, No. 2882 (Oct. 12, 2010), the Appellate Division held that the city’s Department of Housing Preservation and Development validly condemned property, upholding the taking against a due process and a public use challenge:

Relying on Kelo v New London (545 US 469 [2005]), petitioners contend that the public benefits are illusory and speculative because there is no carefully considered, integrated development plan to which a developer is contractually bound. However, Kelo does not say that land may be condemned only if there is such a plan. Moreover, the Court of Appeals’ decision in Matter of Aspen Cr. Estates, Ltd. v Town of Brookhaven (12 NY3d 735 [2009], cert denied…

Continue Reading NY Appeals Judge: “[T]here is no longer any judicial oversight of eminent domain proceedings.”

11.LULHI Mark your calendars for January 13 and 14, 2011 for the 5th Hawaii Land Use Law Conference, to be held in Honolulu. Yes, it’s a few months away, but this is the Big One, it only comes around every two years, and you don’t want to miss it. 

The program chairs are Professor David Callies and land use attorney Ben Kudo, and they have assembled an expert and diverse faculty, including keynote speaker Professor Gideon Kanner (no stranger to readers of this blog).

  brochure

, which contains all the details and a registration form.

Here’s the program description:

The Hawai`i system of land use is complex and private land use is highly regulated. Attorneys and legal staff, planners, government officials, land owners and developers need to understand the complex federal, state and local requirements and procedures.

An expert faculty of land use practitioners, planners and regulators will explain the…

Continue Reading January 13 & 14, 2011: 5th Hawaii Land Use Law Conference

On Thursday, October 21, 2010, from noon to 1:00 p.m. EDT, please tune in for the free web conference “The Whacky and Wonderful World of Eminent Domain After Kelo.”

I’m not sure I can live up to making eminent domain “whacky and wonderful,” but I will be speaking about what the Court in Kelo really decided, and how courts in the intervening five years have viewed the decision. We will be looking at cases from New York, D.C., Hawaii, and Pennsylvania, among others.

Joining me on the panel will be Andrew W. Schwartz, from San Francisco’s Shute, Mihaly & Weinberger. The session will be moderated by John Clapp, Ph.D. of the UConn Center for Real Estate, and Michele Maresca, a land use attorney at Robinson and Cole in Hartford. Here’s the description of the program:

Kelo v. City of New London has been viewed by property rights…

Continue Reading 10/21/2010 Webconference: Eminent Domain After Kelo

In a case that could write the next chapter in the Kelo saga, the property owner recently filed this cert petition asking the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. As we noted in several posts criticizing the decision (see here and here) and in a post lauding the Appellate Division’s decision (which struck down the taking as pretextual), “in other words, ‘blight’ is whatever the agency says it is. Just…

Continue Reading Cert Petition In Columbia “Blight” Case: Are There Any Limits To Eminent Domain In New York?

We’ve been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners’ Counsel of America colleagues Dennis Dunphy and Jill Gelineau have launched a new blog focusing on condemnation and land use issues in the Pacific Northwest. They are partners in Schwabe Williamson & Wyatt (in Seattle and Portland, respectively) and will focus on condemnation issues in the region.

They’ve actually been blogging since early 2010, but have recently picked up steam.

Check out Schwabeblog: Condemnation. Worth following.Continue Reading New Condemnation Law Blog Focuses On Pacific Northwest

This just in: the Minnesota Supreme Court has issued an opinion in a case we’ve been watching, Eagan Economic Development Authority v. U-Haul Co. of Minnesota, No. A08-767 (July 29, 2010). This is the case in which the Court of Appeals invalidated a quick-take because the redevelopment authority — which attempted to take property to “reawaken the spirit and vitality of [that] part of Eagan” (and, less soul-stirringly, to “replac[e] a market obsolete regional shopping center”) — could not condemn property without first having a binding development agreement in place. 

The Supreme Court reversed. The court held:

The Eagan Economic Development Authority is bound by the prohibitions and requirements of the “Redevelopment Plan for the Establishment of the Cedar Grove Redevelopment Project Area” it prepared, adopted, and submitted to the Eagan City Council for approval, which approval was granted.

Subsection 1-8 of the “Redevelopment Plan for the Establishment of…

Continue Reading Minn Supremes: Property Can Be Taken To “Reawaken The Spirit And Vitality” Of City Without Statutory Development Agreement In Place

There are a host of issues in DSG Evergreen v Town of Perry, No. 2009AP727 (Wis. Ct. App. July 22, 2010) (the appellant raised seven grounds for appeal in this condemnation case), but this is the one that caught our eye. The property owner claimed that the town could not condemn its 1.5 acre parcel because it would create a lot that violated the county’s minimum lot size for agriculture-exclusive parcels. Under the county land use ordinance, unless an ag parcel fronts a public road, it must be at least 35 acres. See slip op. at 12. The court held that yes, the parcel did fall below the 35-acre minimum size because it did not front a public road, but that it was the property owner who created the problem with it “swapped property with its neighbor after the appraisal.” Id. at 13. Thus, the court concluded, the…

Continue Reading Wisconsin Ct App: Property Owner’s “Check” Is Subject To Town’s Condemnation “Checkmate”