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I’ve been reading some noteworthy law journal articles on the subject of eminent domain —  two on the issue of pretext, and one on just compensation. Worth reviewing.

  • Daniel S. Hafetz, Ferreting Out Favoritism: Bringing Pretext Claims After Kelo, 77 Fordham L. Rev. 3095 (2009).

    The plaintiffs in Goldstein based their pretext claims on both Justice John Paul Stevens’s brief discussion of pretext in the majority opinion of Kelo and Justice Anthony Kennedy’s more lengthy discussion in his concurrence. Acknowledging that “[t]here may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption . . . of invalidity is warranted,” Kennedy’s fifth-vote concurrence identified the possibility of “a more stringent standard of review than [rational basis review] for a more narrowly drawn category of takings.” Although the Second Circuit rejected the application of this heightened pretext standard in Goldstein,

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Continue Reading Eminent Domain Academic Round-Up: Pretext And Compensation

Adam Liptak reports Issue of Property Rights Is Likely to Arise in Sotomayor’s Confirmation Hearings in the June 14, 2009 edition of the New York Times, comparing SCOTUS nominee Sotomayor’s decision in an infamous (at least in eminent domain circles) case with the positions of the two Justices most recently confirmed to the Court, Chief Justice Roberts and Associate Justice Alito on a similar issue.

Supreme Court nominees almost never comment on recent decisions from the court they hope to join. But both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. broke with protocol and perhaps prudence at their confirmation hearings when it came to a decision that had been issued just months before, Kelo v. City of New London.

Without quite saying Kelo had been incorrectly decided, both men, at the time federal appeals court judges, spoke at length about their doubts concerning its…

Continue Reading NY Times On Judge Sotomayor And Property Rights

I just finished reading a recently-published law review article by Missouri Court of Appeals Judge Harold L. Lowenstein, Redevelopment Condemnations: A Blight or a Blessing upon the Land?, 74 Mo. L. Rev. 30 (2009) (available here).

Despite the efforts of legislatures to reform eminent domain, the exercise of eminent domain for private redevelopment still confers a concentrated benefit on a few while imposing the costs of such redevelopment on a discrete set of property owners. To remedy this imbalance, and to prevent developers and development agencies from abusing this power, this article proposes that property owners be accorded remedies at the beginning as well as at the end of the eminent domain process.

The article recommends redefining blight in “concrete and measurable terms,” and allowing courts to undertake “meaningful judicial review” of blight determinations. The article also suggests that precondemnation blight cover damage to property for the “pall…

Continue Reading New Article On Redevelopment And “Blight” – Proposal For Reform

Second Circuit Judge Sonia Sotomayor, the nominee to fill Justice David Souter’s seat on the U.S. Supreme Court, has served as either a federal District or Circuit Judge for 18 years during which she’s either authored or sat on panels in cases involving eminent domain or regulatory takings.  Here’s an admittedly unscientific sampling of those decisions, which reveal a mixed bag on the property issue:

  • Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005) (Sotomayor on panel).  This decision represents the most favorable case for property owners, although it is more a due process than a takings case.  The panel held that New York’s eminent domain law deprived the property owner of due process notice, and that when the law provides a short time frame to institute a challenge to a condemnation, the government has an obligation to provide express notice of the time frame. The

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Continue Reading SCOTUS Nominee Sotomayor On Takings Issues

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the court held that a taking is not immune from judicial scrutiny for pretext or private benefit simply because the property is being taken for a “classic” use such as a road. The court recognized that the recitation by the government of some public benefit to a taking will not insulate it from judicial review if the claim of public benefit is a pretext to hide a private guiding hand. The court remanded the case to the trial court for a review of the record and a determination among other things of whether the County’s claim that it instituted the taking independently stood up, or whether the taking was simply a better-disguised retread of an earlier failed condemnation.

The recent decision by the Hawaii Supreme Court in…

Continue Reading Why Getting Eminent Domain Right Matters

Under Haw. Rev. Stat. § 101-27,when a condemnation action is “abandoned or discontinued beforereaching a final judgment, or if, for any cause, the property concernedis not finally taken for public use,” the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reasonof the bringing of the proceedings and the possession by the plaintiffof the property concerned if the possession has been awarded includingthe defendant’s costs of court, a reasonable amount to cover attorney’sfees paid by the defendant in connection therewith, and otherreasonable expenses

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (Dec. 24, 2008) (posted here), the Hawaii Supreme Court held that property is not “finally taken” in acondemnation action when a single condemnation fails or is dismissed,even if the condemnor succeeds in a subsequent — or concurrent –attempt to take the…

Continue Reading HAWSCT: Property Owners Entitled To Attorneys Fees & Costs For Failed Taking, Even If Gov’t Prevails In Intermediate Steps

Goodtobeking You may remember Mel Brooks’ History of the World: Part I, where Brooks, as King Louis XIV, turns to the camera and exclaims “it’s good to be the King!” each time he takes advantage of one of his subjects.

Well, it turns out that it really is good.

In Sable v. Myers, No. 07-6286 (10th Cir. Apr. 24, 2009), the U.S. Court of Appeals held that city councilpersons are absolutely immune from claims they used the domain power to take the property of an owner as retaliation for his having successfully brought a quiet title action against the city. 

Mr. Sable’s property was immediately north of the city’s public works facility.  His predecessor in title had adversely possessed from the city a portion of a former city street on the southern boundary of the property, and this “strip” was fenced in along with Sable’s main parcel. …

Continue Reading It Is Good To Be The King: Councilmembers Personally Immune From Charges Of Retaliatory Eminent Domain Abuse

In Eagan Economic Development Authority v. U-Haul Company of Minnesota, No. A08-0767 (May 19, 2009), the Minnesota Court of Appeals held that when a delegation of eminent domain power from a municipality requires a redevelopment agency to enter into a development agreement before acquiring property, the agency is without power to take property until it enters such an agreement.

Most property owners within the redevelopment district did not object to the taking of their land but three did.  They argued that the city’s resolution delegating condemnation power to the redevelopment agency incorporated a redevelopment plan into its requirements by reference.  As noted by the court, section 1-8 of the resolution provided:

The Redevelopment Plan contemplates that the City may acquire property and reconvey the same to another entity. Prior to formal consideration of the acquisition of any property, the City will require the execution of a binding development agreement…

Continue Reading Minn Court Of Appeals: Redevelopment Agency Exceeded Delegation Of Eminent Domain Authority

Under Haw. Rev. Stat. § 101-27, when a condemnation action is “abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use,” the condemnor is liable for: 

all such damage as may have been sustained by the defendant by reasonof the bringing of the proceedings and the possession by the plaintiffof the property concerned if the possession has been awarded includingthe defendant’s costs of court, a reasonable amount to cover attorney’sfees paid by the defendant in connection therewith, and otherreasonable expenses

The County of Hawaii filed a condemnation lawsuit, and when it looked like that action was in legal jeopardy, filed a second lawsuit seeking to take virtually the same property. The trial court eventually held the first condemnation was an unconstitutional private taking, but upheld the second.  The County denied it was liable for 101-27 damages…

Continue Reading Government Must Pay 100% Of Owner’s Defense Fees In Illegal Condemnation