Public Use | Kelo

Subscribe to Public Use | Kelo via RSS

Hartman Remember Phil Hartman’s classic Saturday Night Live routine, “Unfrozen Caveman Lawyer” —

One hundred thousand years ago, a caveman was out hunting on the frozenwastes when he slipped and fell into a crevasse. In 1988, he wasdiscovered by some scientists and thawed out. He then went to lawschool and became… Unfrozen Caveman Lawyer.

We can’t summarize the skit any better than wikipedia:

The running gag was that [Hartman] would speak in a highly articulateand smoothly self-assured manner to a jury or an audience about howthings in the modern world supposedly “frighten and confuse” him. Hewould then list several things that confounded him about modern life orthe natural world, such as: “When I see a solar eclipse, like the one Iwent to last year in Hawaii, I think ‘Oh no! Is the moon eating thesun?’ I don’t know. Because I’m a caveman — that’s the way I think.”This pronouncement…

Continue Reading Unfrozen Caveman Judges “Frightened And Confused” By Blight

While we’re formulating our thoughts on the NY Court of Appeals’ decision in Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009), here are media reports and others’ thoughts on the case:

  • The blog at the epicenter of the case, the Atlantic Yards Report has a series of posts with its perspective, including this FAQ. 
  • From across the East River comes this from the Wall Street Journal‘s law blog.
  • Eminent domain scholar Ilya Somin posts his thoughts at the Volokh Conspiracy.
  • The New York Times reports on the decision here.
  • Professor Gideon Kanner’s insights here.

Continue Reading Media And Commentary Links On NYCA’s Atlantic Yards Decision

The New York Court of Appeals issued its opinion in the appeal regarding the Atlantic Yards redevelopment project, Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009). This case was a challenge to the taking under the New York Constitution.

While we have not yet fully digested the 66 pages of opinion, concurrence, and dissent, but the short story is that the court allowed the taking of non-blighted property to go forward, holding that a blight finding by an agency is not judicially reviewable:

It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for that of the legislatively designated agencies; where, as here, “those bodies have made their finding, not corruptly or…

Continue Reading New York Court Of Appeals: Agency Can Blight The Baby With The Bathwater With No Judicial Oversight

Another very interesting conference call today, focusing on theupcoming arguments in the Stop the Beach Renourishment case, the New York Court of Appeals’ decision in Aspen Creek, and the New Jersey Supreme Court’s decision to review Klumpp v. Borough of Avalon. Here arethe links to some of the cases and other topics discussed duringtoday’s call, and other items of interest which we didn’t have time for:

  • A resource page for the Stop the Beach Renourishment case – merits and amici briefs, media links, and commentary.
  • Our summary of the New York court’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, 12 N.Y.3d 735 (N.Y. 2009), cert. denied, No. 08-1444 (U.S. Oct 5, 2009).
  • More about the “bizarre condemnation,” Klumpp v. Borough of Avalon, No. A-2963-07 (per curiam). See also this post on the case from the New Jersey Condemnation Law blog.

…
Continue Reading Links From ABA Condemnation Committee Conference Call (11/18/2009)

Here’s what we’ve been reading today:

  • A Turning Point for Eminent Domain? – The NY Times “Room for Debate” forum posts the thoughts of six property law experts on the meaning of Pfizer’s decision to close its research headquarters in New London, Connecticut. New London, of course, was the epicenter of the public use case that became Kelo v. City of New London, 545 U.S. 469 (2005). Many of the comments are also worth perusing.

…
Continue Reading Friday Eminent Domain Round-Up

Today, my Damon Key colleagues Ken Kupchak, Mark Murakami, Matt Evans and I filed the Opening Brief in the latest phase of County of Hawaii v. C&J Coupe Family Ltd. P’ship, two condemnation cases arising out of the County of Hawaii’s attempts to take a Kona family’s property. This brief addresses several issues, but the most critical involve pretext and public purpose, questions left open by the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), but which were answered, in part, by the Hawaii Supreme Court in its opinion when these cases were first before the court last year. See County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008) (available here)

In that opinion, the court held that a property owner has a right to challenge the government’s assertion that a…

Continue Reading Opening Brief In Kona Eminent Domain Abuse Case: Pretext, Actual Purposes, And Private Benefit

Mark your calendars for Wednesday, November 18, 2009, from 2:00 – 3:00 p.m. (Eastern Standard Time). That’s when we will be having the next “recent developments” conference call for members of the Condemnation Law Committee (ABA Section of State & Local Government Law). It’s free, but open only to Section members. Members should receive an e-mail with the call information, either directly from the Section, or via our listserv (LG-CONDEMNATION). If you are not a member, see below.

These are informal calls to discuss recent developments, get feedback and advice about pending matters, and to otherwise exchange views.

As this is informal, the agenda is open. But we will be covering at least these topics:

…
Continue Reading Mark Your Calendars: ABA Condemnation Law Conference Call – November 18, 2009

On October 16, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in  Rumber v. District of Columbia, No. 09-7035, the appealchallenging an attempt to take a shopping center by the District of Columbia andthe National Capital Revitalization Corporation. We previewed the arguments and posted the briefs of the parties here.

The Blog of Legal Times reported on the arguments in D.C. Circuit Tries to Untangle Eminent Domain Battle, noting:

The D.C. Circuit judges—Chief Judge David Sentelle was sitting with Senior Judges Stephen Williams and A. Raymond Randolph—grappled with just how many plaintiffs are left in the suit. Sentelle, during oral argument, ordered both sides to submit supplemental briefs that address the status of the plaintiffs.

Read the entire article here.

Continue Reading Latest On Rumber v. DC

Each summer, The Urban Lawyer (the ABA’s Section of State and Local Government Law‘s peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription to the journal, which is published each quarter, is among the benefits of section membership. The just-published Summer 2009 issue includes my article on recent developments in public use and pretext in eminent domain, which I have creatively titled Recent Developments in Public Use and Pretext in Eminent Domain (43 Urban Lawyer 563 (2009)).

If that’s not descriptive enough, here’s a summary of the article:

The Supreme Court’s controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the public use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government’s claim that property is being condemned…

Continue Reading New Article: Recent Developments in Public Use and Pretext in Eminent Domain

Yesterday, the New York Court of Appeals heard oral arguments in the latest case involving the controversial Atlantic Yards project in Brooklyn. We blogged the arguments as we followed along on the live video feed (video archived here).

According to the court’s web site, “[t]he Court normally decides cases within thirty to sixty days after the oral argument date,” so we should be seeing the outcome relatively quickly.  

Here are selected reports on the arguments and the issues in the case:

…
Continue Reading Atlantic Yards Oral Argument Media (And Other) Reports