Public Use | Kelo

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Some interesting reports today:

  • Hawaiians urge Obama to step in on ceded lands –  an AP story reporting that “Hawaii legislators and legal groups are asking President Barack Obama to intervene in the Hawaiian lands case set to be heard by the U.S. Supreme Court next week.” (via KPUA.net). The Obama Administration has “intervened” in the case, but not in a way the groups probably had in mind: the acting Solicitor General sought and was granted 10 minutes oforal argument time to support the State of Hawaii’s argument, as noted here. “The groups believe leftover appointees of former President George W. Bush are arguing a position that’s inconsistent with Obama’s views.” That would be odd, if true,

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Continue Reading “Ceded Lands” Case, Land Use Round-Up

Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.”  Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.

The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:

We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.

Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here:  Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.

  • No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case.  Disclosure: we represent thelandowner. More here.

Continue Reading Materials From 2/20/2009 Land Use Seminar

In a brief memorandum opinion, the New York Court of Appeals (the state’s highest court) today affirmed the Appellate Division’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property for farmland preservation. The court held: 

Petitioner contends that the United States Supreme Court’s decision in Kelo v City of New London (545 US 469 [2005]), which dealt with takings for purposes of economic development, requires a preexisting farmland preservation plan to justify the taking of its property as a public use within the meaning of the Fifth Amendment (see US Const Amend V [“nor shall private property be taken for public use, without just compensation”]). We need not, and do not, reach the issue whether petitioner’s interpretation of Kelo is correct, since the challenged taking was constitutionally proper even assuming that a preexisting farmland preservation plan was…

Continue Reading New York Court Of Appeals: No Need For A Comprehensive Taking Plan

Some interesting reports filtering across my screen today:

  • Thanks to Charley Foster for sending notice about a post at Volokh Conspiracy about whether the Takings Clause was incorporated against the states by the Due Process Clause, “Regulatory Takings and the Fourteenth Amendment.”  On that subject, check out “No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights” by Michael Kent Curtis (available on Amazon here), which makes a good case that the Reconstruction Congress meant for the Privileges or Immunities Clause of the Fourteenth Amendment to incorporate all of the provisions of the Bill of Rights against the states as attributes of national citizenship.

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Continue Reading Land Use Round-Up

A very important decision by California’s Third District Court of Appeal, exposing the fantasy behind the Kelo majority’s conclusion that decisions to take property are most often the result of an objective process and comprehensive and carefully considered planning. In City of Stockton v. Marina Towers LLC, No. C054495 (Feb. 13, 2008), the court invalidated an attempt to take property on public use grounds, holding that the city’s resolution of necessity was so “nondescript [and] amorphous,” and “so vague, uncertain and sweeping in scope that it failed to specific the ‘public use’ for City sought acquisition of the property.” Slip op. at 3. 

Recall that in  Kelo v. City of New London,545 U.S. 469 (2005), the majority took great pains to establish thatthe taking of Mrs. Kelo’s house was part of a “‘carefully considered’development plan,” and was therefore entitled to judicial deference.  Keloreviewed the decision to take…

Continue Reading Cal. Court of Appeal: No Public Use In “Case Of Condemn First, Decide What To Do With The Property Later”

In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the US Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia), held “in order for a fact finding body to ignore a regulation in calculating ‘just compensation’ for a given piece of property, the landowner must show that the primary purpose of the regulation was to depress the property value of land or that the ordinance was enacted with the specific intent of depressing property value for the purpose of later condemnation.” Slip op. at 1-2. The court also held that once a judge determines that regulation was not used to depress the value of the property pre-acquisition, evidence of improper use of regulation cannot be presented to the finder of fact.

The case involved the federal government’s efforts to condemn undeveloped land in the area east of the Everglades National Park…

Continue Reading Pretext In Compensation Determinations: 11th Circuit Holds Landowner’s Burden To Show Government Intent To Depress Value By Regulation

It looks the one of the landowners under the threat of eminent domain in New York City’s Manhattanville (aka West Harlem) neighborhood has a blog about his fight. Check out My Land is Mine, with posts by Nick Sprayregen, owner of Tuck-It-Away, a self storage facility threatened with condemnation to allow Columbia University to expand its Morningside Heights campus northward. The Empire State Development Corporation, the entity actually doing the taking, asserts the neighborhood is “blighted,” and Sprayregen and another property owner have sought court review.

I used to live in and frequent that neighborhood when I was attendingColumbia Law, and even rented a small locker at the BroadwayTuck-It-Away facility. The neighborhood did not fit a classic definitionof “blighted” then — nearly 16 years ago — and has appeared to become even more gentrified in the interim. The property owners contesting the blight designation claim that the designation is…

Continue Reading Property Owner’s Blog: My Land Is Mine

Eminent-domain-cover-copy In “Positioning Politics: Kelo, Eminent Domain, and the Press,” an article in “Land and Power: The Impact of Eminent Domain in Urban Communities,” published by the Policy Research Institute for the Region (Princeton), the author asserts that the reporting on the Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), “was more interpretation than fact andrelied heavily on inflammatory hyperbole and provocation.” Further,

Overwhelmingly and unsurprisingly, the editorials voiced dissent withthe Court’s ruling, which mirrored public opinion data, but as with thereporting, they relied heavily upon a series of myths about Kelo andeminent domain. These myths became powerful framing devices, which havemade eminent domain a touchstone social-policy battle with a life ofits own.

The abstract of the article is on SSRN here (the full article is also available for download at SSRN), and the entire “Positioning Politics” monograph…

Continue Reading Kelo Backlash: Media Hype?

According to this report from the San Francisco Chronicle, the California Supreme Court has denied review of Defend Bayview Hunters Point Committee v. City and County of San Francisco, 167 Cal. App. 4th, 84 Cal. Rptr. 3d 486 (Cal. Ct. App. 2008), the decision held:

The Defend Bayview Hunters Point Committee (DBHPC) gathered the required number of signatures on a petition to force a citywide referendum on an ordinance adopting a redevelopment plan for the Bayview Hunters Point community. The City and County of San Francisco (the City) rejected the petition because it failed to include a copy of the 57-page redevelopment plan that had been incorporated by reference in the ordinance when the Board of Supervisors of the City and County of San Francisco voted to approve it. DBHPC’s ensuing petition for a writ of mandate compelling the Clerk of the Board of Supervisors (Clerk) to accept the referendum petition was denied by the trial court, and this appeal followed. We…

Continue Reading Cal. Supreme Court Won’t Review San Francisco Redevelopment Initiative

Thanks to Charley Foster for pointing out this podcast of Susette Kelo’s recent appearance at the Cato Institute’s forum about the book Little Pink House: A True Story of Defiance and Courage, by Jeff Benedict (available from Amazon here):

The mp3 of the podcast can also be downloaded directly here.Continue Reading Cato Institute Podcast: A Story Of Eminent Domain Abuse Featuring Susette Kelo