Public Use | Kelo

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On behalf of the property owner, we’ve filed a Motion for Reconsideration (filed May 1, 2009) of the Hawaii Supreme Court’s latest opinion in which the court held that a condemnee who appeals the denial ofdamages for a failed taking is entitled to damages it sustains onappeal. The opinion had three points that merited correction:

  • Haw. Rev. Stat. § 101-27 requires the condemnor to pay all damages sustained by the property owner when a taking is ultimately unsuccessful, even if the condemnor prevailed on intermediate steps in the case.
  • Work that may not appear to have been recorded separately was in fact separated (there were two concurrent condemnation attempts, and two appeals).
  • Under section 101-27, the property owner is entitled to recover all “costs of court” and is not subject to a “reasonableness” inquiry.

More to follow when the court renders its decision.  Update: forgot to add that the court…

Continue Reading Damages Flowing From A Failed Condemnation: Motion For Reconsideration

Here’s what we’ve been reading today:

  • Connecticut Public Broadcasting Network’s Where We Live show has posted a mp3 of an interview with Jeff Benedict, author of “Little Pink House,” the book about Kelo v. City of New London. More about the book here.

Continue Reading Monday Eminent Domain Round-Up

A state law providing that airport boards may exercise the powers of the municipalities which appoint them, but which also requires a condemnation action by an airport board “be instituted in the names of the municipalities jointly,” prohibits an airport board from instituting an eminent domain suit in its own name. In Spokane Airports v. RMA, Inc., No. 26538-2-III (Apr. 28, 2009), the Washington Court of Appeals held that any condemnation suit filed by the airport board that is not in the names of the municipalities lacks subject matter jurisdiction.

The City of Spokane and Spokane County jointly operate the Spokane International Airport, and formed the Spokane Airport Board to operate it. The airport needed to remove some buildings, including several which were leased to RMA, so the city and the county passed a resolution of taking condemning the leases. The Airport Board, purporting to act pursuant to…

Continue Reading WA Court Of Appeals: Delegations Of Eminent Domain Power To Municipalities Strictly Construed

The Big Island’s West Hawaii Today reports “Both sides claim win in latest ruling” about the Hawaii Supreme Court’s recent opinion in the cases involving the County of Hawaii’s attempt to take the property of a Kona family to meet the County’s obligations under a development agreement with the developer of the Hokulia project.  Disclosure: we represent the property owner in these cases.

In County of Hawaii v. C&J Coupe Family Ltd. P’ship, No. 28822 (Apr. 21, 2009) (posted here), the court confirmed that a property owner is entitled to be made economically whole pursuant to Haw. Rev. Stat. § 101-27,including the reasonable attorneys fees and costs it incurs on appeal when its property is not “finally taken” forpublic use. The trial court struck down an attempted taking for a road for lack ofpublic use,

The road, partof a development agreement between the county and…

Continue Reading West Hawaii Today On Latest HAWSCT Opinion In Eminent Domain Abuse Cases

In “Spotlight Finds Eminent Domain Crusader,” the New York Times profiles Susette Kelo, the name behind the infamous eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005), and the subject of a recent book about the case, Little Pink House – A True Story of Defiance and Courage, by Jeff Benedict (Grand Central Publishing 2009) (available from Amazon here).

The journey from courtroom to bookstore was not instant, however. Amazingly, although the case, a classic David and Goliath story, was widely discussed, no authors followed up in a timely fashion with a book proposal. Mr. Benedict himself had been busy with other projects. (He has written several books and had a brief fling at politics, losing the Democratic nomination in a run for the House of Representatives from Connecticut’s Second District.)

When he knocked on Susette Kelo’s door without an appointment…

Continue Reading New York Times Profiles Kelo, The “Eminent Domain Crusader”

Little-pink-houseI was fortunate enough yesterday to attend an event with Jeff Benedict, who spoke about his recently-published book Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here). 

Little Pink House gives the backstory to the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005). It’s not a dry recounting of the legal issues or the Court’s opinion, but a story of how one property owner’s determination to keep her home ended up in the U.S. Supreme Court, and eventually took on a life of its own. The book has been reviewed in the New York Times and the Wall Street Journal among other places.  Robert S. Poliner, the Connecticut Ombudsman for Property Rights also reviewed the book; we’ve reprinted his review here.

The highlights of Benedict’s talk:

  • The

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Continue Reading Little Pink House Event Report

Several diverse items, for your consideration:

  • Columnist George Will opines about the Empress Casino Joliet case — the one where the Illinois Supreme Court held that aregulation imposing a 3%”surcharge” on Illinois casinos with gross receipts over $200 millionper year, and then gives the money to horse racing tracks is not ataking of property.  The U.S. Supreme Court has been asked to review the case. We discussed it here and here (cert petition and amicus briefs included).
  • The ABA Journal writes about George Will opining on the Empress Casino Joliet case.

Continue Reading Monday Round-Up

Little-pink-houseFor those of you within striking range of Santa Barbara on Tuesday, April 14, Jeff Benedict, the author of Little Pink House – A True Story of Defiance and Courage (Grand Central Publishing 2009) (available from Amazon here) will be speaking at the Community Leaders Forum from 5-7pm in the Loggia Ballroom at the Biltmore Santa Barbara. 

Little Pink House is the book about the infamous Supreme Court eminent domain decision Kelo v. City of New London, 545 U.S. 469 (2005). The book has been reviewed in the New York Times and the Wall Street Journal among other places.  Robert S. Poliner, the Connecticut Ombudsman for Property Rights also reviewed the book, which we reprinted here.

Dana Berliner from the Institute for Justice — and one of the attorneys who represented Susette Kelo — will be on the panel. 

I just happen to be…

Continue Reading So. Cal. Heads-Up: Jeff Benedict/Little Pink House In Santa Barbara On Tuesday 4/14

Dean Patty Salkin’s Law of the Land blog posts James Lawlor’s summary of the Hawaii Supreme Court’s decision in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 119 Haw. 352, 198 P.3d 615 (2008), “Court Must Decide If Public Purpose Claimed for Road Was Pretextual.” 

The Hawaii Supreme Court ruled a trial court erred by not specifically considering whether a county’s claimed justification for a taking to build a highway was a mere pretext to benefit a private landowner, as the landowner affected by the taking charged.

….

The court said it did not have to accept Justice Kennedy’s formulation to conclude that Kelo and the relevant Hawaii precedents supply ample authority to require the trial court to reach the pretext issue. On its face, the stated public purpose in this case met the public use requirements of both the state and United States constitutions, the…

Continue Reading Pretext In Eminent Domain: Law Of The Land On The Coupe Opinion

A new article from the ABA Journal “Where’s the Revolution” about whether post-Kelo reforms of eminent domain law have any real effect on the law.  According to the summary of the article on the Geo. Mason U. law school web site:

Despite the fact that the Supreme Court’s 5-4 vote in Kelo v. City of New London provoked a significant public backlash, Professors Steven Eagle and Ilya Sominmaintain that most land use laws adopted since the court’s decisionfail to provide significant protection for private ownership ofproperty.

Also quoted in the article are our friends Dana Berliner from the Institute for Justice, and Timothy Sandefur from the Pacific Legal Foundation.  The article is worth a look.Continue Reading New Article: Is Eminent Domain Reform Just Window Dressing?