Public Use | Kelo

Subscribe to Public Use | Kelo via RSS

The circuit court has scheduled the next steps in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Haw. Dec. 24, 2008), the case in which the Hawaii Supreme Court held that the government must pay damages to a property owner when an attempt to take property by eminent domain fails, and that courts have an obligation to examine claims that the government’s asserted public purpose for a taking is pretextual, even when the taking is for a “classic” public use. The Court remanded the case to the circuit court for a consideration of the amount of damages owed to the property owners, and the pretext issue. [Disclosure: we represent the property owners.]

The schedule for the case is reported by West Hawaii Today here.Continue Reading Schedule In Kona Eminent Domain Pretext Case

A delay in publication of a legal notice won’t knock out a challenge to the legality of a city’s blight designation.

In Community Youth Athletic Center v. City of National City, No. D052584 (Jan. 22, 2009), the California Fourth District Court of Appeal held that the trial court abused its discretion when it dismissed a “reverse validation” complaint because notice of the complaint was not timely published.

While this decision isn’t directly about eminent domain for economicdevelopment or redevelopment, the situation that gave rise to is. The plaintiff challenged a local ordinance that declared its property (a community boxing gym that serves “at-risk” youth) and 700 other properties to be “blighted” and available for condemnation. The gym and its neighborhood are not “blighted” in the usual sense of the word, only in thesense of California’s Community Redevelopment Law, which contains adefinition of blight that is so broad that virtually…

Continue Reading California Court of Appeal: No TKO Of Eminent Domain Challenge (Video)

Here are links to the cases discussed on the conference call this morning:

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.

      • The Ninth Circuit’s decision in West Linn Corporate Park, LLC v. City of West Linn, Nos. 05-36061, 05-46062 (9th Cir. July 28, 2008) (regulatory takings case removed to US District Court, Ninth Circuit certified questions to Oregon Supreme Court)

        Continue Reading State & Local Government Condemnation Committee Links

        OCA_logo I’m honored to have been designated as the Hawaii member of the Owners’ Counsel of America. OCA is “a voluntary network of experienced eminent domain attorneys from every state of the nation, representing property owners facing condemnation or other infringement on their constitutional rights to own property, and dedicated to advancing the cause of property rights.”

        OCA membership is byinvitation only and is open to only one attorney from every state.

        I attended the OCA annual meeting this past weekend in conjuction with the ALI-ABA conference on Eminent Domain and Land Valuation Litigation, and the depth of knowledge and experience in the room was truly amazing.  Just about every major reported federal and state eminent domain and regulatory takings case or judgment had been litigated by OCA members or honorary members, and it is a real privilege to count them as my colleagues.

        OCA also publishes a blog…

        Continue Reading Owners’ Counsel Of America

        Thanks to Professor Patty Salkin’s Law of the Land blog for letting us know that on January 14, 2009, the New York Court of Appeals (that state’s highest court) will be hearing oral arguments in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property.  Professor Salkin summarizes the issues in the case here. 

        In the opinion now under review, the Appellate Divison approved a taking of private property to preserve it as farmland.  Thecourt’s majority held that the goal of preserving farmland generallyqualifies as a public use/purpose, and that there was no evidence ofpretext in the record demonstrating that the presumption of public useshould be questioned, even though the property owner asserted that theland would eventually be leased or sold to another private owner.

        The property owner also asserted that because the taking was not part of a plan…

        Continue Reading New York Court Of Appeals To Hear Appeal Challenging Reason For Taking

        Currently at the annual conference on eminent domain law – as always, well worth attending.

        In the morning’s session, Professor Kanner mentioned the recent decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008), which has not yet been published in the official reporters.  The slip opinion is posted here. Continue Reading At The ALI-ABA Conference On Eminent Domain And Land Valuation

        One of the bigger developments, at least in Hawaii law, came in the last week of the year. We’re talking about the Hawaii Supreme Court’s decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008) (and we’re not just hailing the case because we’re the attorneys for the landowner).

        Note: for those attending the Eminent Domain and Land Valuation Litigation conference, this is the case Professor Kanner mentioned in the morning session as being not reported yet.   See below for the link to the slip opinion.

        The Court held that government, not property owners, bears the financial risk that a condemnation fails and, importantly, joins a number of courts in holding that the government’s proclamation that a taking is for public use is not immune from judicial inquiry. All five Justices agreed that under Haw. Rev. Stat. § 101-27(1993), the…

        Continue Reading 2008 Land Use In Review: Public Use And Pretext In Eminent Domain

        Following up on this post, where we pointed out several errors in a headline and subheadline in a Honolulu Star-Bulletin story on the Hawaii Supreme Court’s landmark eminent domain decision in County of Hawaii v. C & J Coupe Family Limited Partnership, No. 28882 (Dec. 24, 2008), the Star-Bulletin has posted corrections and clarifications, here:

        » A lawsuit remains active by members of the Coupe family in Kona,seeking to block county condemnation of part of their land for ahighway near the Hokulia development. A Page 4 headline in the Hawaiisection Saturday said the suit was dismissed by the state SupremeCourt. Also, future hearings on the case will not involve ethicalallegations, as was stated in a subheadline on the same story.

        While still not 100% accurate — the County of Hawaii instituted the lawsuits against the property owners, not the other way around — it’s heartening to see…

        Continue Reading Thank You, Star-Bulletin: Corrections And Clarifications

        I usually try to not take too seriously the headlines attached to a newspaper story or op-ed. After all, an editor — and not the reporter or op-ed author — may have written the headline, and it may be designed to grab a reader’s attention or focus on a part of the story the editor thinks important. 

        But a headline should at least be in the ballpark, factually. 

        However, after reading the headline in a Honolulu Star-Bulletin story on the recent Hawaii Supreme Court decision in the Kona bypass condemnations, “Suit to block highway is dismissed” I was left wondering whether there was another case going on over the Hokulia road that I didn’t know about.  Turns out no, there’s just the two, the headline just got it very, very wrong.   

        First, the facts. On December 24, 2008, in County of Hawaii v. C & J Coupe …

        Continue Reading Headline On Kona Condemnation Cases – Not In The Ballpark