Public Use | Kelo

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What we’re reading today:

  • Curbing abuse of eminent domain – A Denver Post editorial on a new Colorado statute designed to limit the power of the government to declare farmland “blighted” (“The new law says land that has been classified by the county assessor as agricultural land cannot be condemned for urban renewal. However, it makes an exception for agricultural land that is an enclave within cities and has had development around it for at least three years. We will have to see how the law shakes out in the coming years, but that seems to be an awfully big exception. That’s exactly the kind of land that usually needs the most protection from government.”).

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Continue Reading Sunday Eminent Domain Round-Up

In Cottage Emporium, Inc. v. Broadway Arts Center, L.L.C., No. A-0048-97T2 (Apr. 16, 2010) (per curiam), the New Jersey Superior Court (Appellate Division) struck down the city of Long Branch, New Jersey’s declaration that properties located in an area of the city known as the “Broadway Corridor” are blighted. The court held that the city must do more than recite the statutory criteria for blight and then assert the properties met the criteria.

The city determined the properties were in “poor” condition using only “cosmetic and superficial” criteria, and by visually inspecting the buildings’ exteriors. Nor did the city attempt “even in small part to establish what Gallenthin [Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007)] requires, namely a degree of ‘deterioration or stagnation that negatively affects surrounding areas’ by promoting conditions that can develop into blight.” Slip op. at 36.

Although a city’s…

Continue Reading New Jersey Appellate Division: For Property To Be Blighted, City Must Do More Than Say It Is Blighted

The New Hampshire Public Utilities Commission properly approved the taking of private water works by the City of Nashua. In Appeal of Pennichuck Water Works, Inc., No. 2009-274 (Mar. 25, 2010), the New Hampshire Supreme Court concluded taking was in the public interest, and that it resulted in a net benefit to the public.

New Hampshire law creates a rebuttable presumption that the acquisition of a privately-owned utility is in the public interest, and the court held that “those opposing the City’s petition to acquire [the water works] had to demonstrate, by at least a preponderance of the evidence, that the proposed takings was not in the public interest.” Slip op. at 9. Separately, the court determined that the taking had a “net public benefit” — an analysis required by the New Hampshire Constitution. Slip op. at 9-10.

Overall, this case does not add much to the “public…

Continue Reading New Hampshire Supreme Court Upholds Taking Of Private Water Works

In granting a special zoning exemption to Shelter House, Iowa City allowed it to build a homeless shelter on land next to Mr. and Mrs. Dahlen’s mobile home park. After losing their challenge to the zoning exemption, the Dahlens filed suit in federal court alleging the exemption violated their due process rights.

That claim was abandoned when the Dahlens amended their complaint to allege that they owned a portion of the Shelter House property by adverse possession, and the city’s approval of a site plan for the homeless shelter was an uncompensated taking of their property. The District Court dismissed the amended complaint because it was not ripe under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

In Dahlen v. Shelter House, No. 09-1909 (8th Cir. Mar. 24, 2010), the U.S. Court of Appeals for the Eighth Circuit agreed. The Dahlens…

Continue Reading 8th Circuit: Federal Takings Lawsuit Not Ripe

“Bust a deal and face the wheel.”

 – Aunty Entity (Tina Turner) Mad Max: Beyond Thunderdome

You make a deal, you live with it. Or use legal means to try and avoid your obligations. But in New York, if you don’t like a deal and can’t get out of it, apparently you try to condemn the other side.

The New York Supreme Court (Appellate Division, Fourth Department) has invalidated an attempt to take property, in this case land used by Syracuse University for “cogeneration facility and steam plants.” The taking, the court held, was purely private since it was an attempt by the condemnor to free its affiliate from its contractual obligations. Syracuse University v. Project Orange Associates Services Corp., No. 208 OP 09-01732, 2010 NY Slip Op 02225 (Mar. 19, 2010).

The deal made by the affiliate was economically “unsustainable,” and it had attempted on several occasions to…

Continue Reading NY Supreme Court (Appellate Division): Eminent Domain Can’t Be Used To Get Out Of A Contract


What we’re looking at and listening to today. Some video, some podcasts.

  • A clip about the owner of what might be “the most condemned property in America.” It features a Virginia rancher whose property has been subject to condemnation 10 times, and who now is alleging an inverse condemnation claim because the VA DOT this time didn’t bother to exercise eminent domain before it interfered with his property rights. Joe Waldo, my Owners’ Counsel colleague, is also featured.
  • From the Federalist Society, a podcast or a video of a recent discussion about “Civil Pleadings Standards After Iqbal” for all of us federal civil procedure nerds.
  • A podcast of a debate on post-Kelo eminent domain reforms between George Mason lawprof Ilya Somin and U.Chicago lawprof Saul Levmore.

Continue Reading Multimedia Round-Up

Who among us hasn’t, at one point or another, found some comfort in that icon of mid-century americana, the greasy spoon diner? In the words of Martin Sexton:

Like a locomotive they were streamlined
And the blue prints were drawn up from a dream of mine
Slap ’em up put ’em on the train
Out to Michigan up to Maine
You may find a diner down in Georgia or
Carolina off the twenty by the Piggly Wiggly
In the country out of Waynsboro

….

Diner my shiny shiny love
In the night you’re all I’m thinking of
Diner my shiny shiny love

The above video is surely the product of the “shiny shiny love” about which Sexton sings. It presents the case of Curley’s Diner in Stamford, Connecticut, and the fallout from the city’s earlier failed attempt to take its property. In Aposporos v. Urban Redev. Comm’n, 790…

Continue Reading Diner My Shiny, Shiny Love

In the latest chapter is the Skyland Shopping Center saga, Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam), the U.S. Court of Appeals for the D.C. Circuit got rid of most of the 17 plaintiffs by determining they did not have standing to object to a condemnation, and then dismissed the claims of the remaining four plaintiffs on Younger abstention grounds.

The case arose from the attempt to condemn the Skyland Shopping Center,which is alleged to be a “blighting factor” to the surrounding area,and redevelop the property. The Washington Post reported on the situation here:

A powerful group of affluent Hillcrest residents has succeeded ingetting the city to declare eminent domain at Skyland — a controversialmove seen in no other commercial land deal in the District except thenew baseball stadium. Skyland will be demolished, under the plan, and ahigher-quality shopping center…

Continue Reading DC Circuit Peels The Onion On Eminent Domain Abuse Case

An interesting difference of opinion about the message in the current blockbuster Avatar. Eminent domain mavens Gideon Kanner and Rick Rayl initially agree that it’s not about eminent domain, but diverge on their philosophical approaches to the issue.

Rather than attempt to summarize their respective positions, it’s probably better we just refer you to their back-and-forth posts. Start with Rayl’s “Is Avatar Really a Political Commentary on Eminent Domain Abuse?” Follow that with Kanner’s “Is the Movie ‘Avatar’ a Story About Eminent Domain?” Finish with Rayl’s reply, “Response to Professor Kanner About Avatar.”

At least one other commentator thought the film was about property rights and eminent domain:

“Avatar” is like a space opera of the Kelo case, which went to theSupreme Court in 2005. Peaceful people defend their property againstoutsiders who want it and who have vastly more power. Jake rallies theNa’vi…

Continue Reading Competing Views Of James Cameron’s “Avatar” (And Eminent Domain)

Today, we filed the final briefs in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship,two condemnation appeals presently before the Hawaii Supreme Court arising out of the County’s attemptsto take a Kona family’s property.

We filed this brief replying to the developer’s Answering Brief, and this brief in reply to the County of Hawaii’s Answering Brief.

The Opening Brief which we filed in November 2009 is posted here.

These cases have resulted in two prior reported opinions, County of Hawaii v. C & J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here), which deals with the issue of pretext and public purpose in eminent domain, and County of Hawaii v. C & J Coupe Family Ltd. P’ship, 120 Haw. 400, 208 P.3d 713 (2009) (available here), which held that under Hawaii law…

Continue Reading Final Briefs In Hawaii Eminent Domain Abuse Cases: Pretext, Actual Purposes, And Private Benefit