Public Use | Kelo

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You may have been wondering why we’ve been closely following the U.S. Supreme Court arguments in Winter v. Natural Resources Defense Council, Inc.,No. 07-1239, the case about the Navy’s use of mid-frequency active sonar in training exercises off the California coast. Well, besides the fact that we filed an amicus brief in the case on behalf of nine retired Admirals and several service support groups (posted here), the case has the potential for affecting more than marine mammals and the Navy’s use ofsonar, because the Court has been asked by the government and amici toexamine the standards applicable to injunctions in NEPA cases.  

Professor Gideon Kanner has posted two items about the case recently, reminding us why the larger issue — when the courts should defer to the judgment of the other two branches — is important.

The first is “Did Environmental Quibbling Facilitate the Attack on …

Continue Reading The Navy Sonar Case and Kelo

Professor Kent Schooland has posted “Eminent Domain and the Eighth Commandment,” a piece with his thoughts about the morality of condemning property and the system of “just compensation.”

Given the realities of eminent domain, perhaps we should prepare our children with relevant civics lessons for the playground. Whena gang of kids wants to grab a pretty ring off the finger of a littlegirl, they can avoid annoying accusations of “theft” by following a fewsimple steps:

1) The gang must use the Latin words eminent domain, never “stealing.”

2) The gang must designate one of their members as leader—thus the “superior owner” of everything on the playground.

3)The gang leader must instruct his or her lieutenants to “tax” a fewcoins from other children on the playground in order to offer “justcompensation” to the girl when her ring is taken.

4)The gang leader must explain that his actions are for…

Continue Reading The Fifth Amendment and the Eighth Commandment

Some interesting items from around the land use law blogosphere:

  • A write up of an Eleventh Circuit (which covers Alabama, Florida, and Georgia) decision striking down as unconstitutional a municipal ordinance that prohibited national chain retail stores because it violates the dormant Commerce Clause.  This could be a very important case on the “big box” and “formula retail” issues. More from Georgia Zoning Blog.
  • Charley Foster has a series of posts about a reporter’s privilege to trespass on private property, and how it may relate to an ongoing controversy about the State of Hawaii Historical Preservation Division and native Hawaiian remains on a construction site on Kauai.  Start at Planet Kauai.

Continue Reading Land Use Law Round-up

In a story titled “Honolulu notifying landowners in way of planned rail route,” the Honolulu Advertiser reports “The city has started notifying residents living in the path of the planned $3.7 billion elevated commuter rail that all or part of their properties may be condemned.  The letters, which are being sent out in batches, don’t specify how much property may be needed along the 20-mile East Kapolei to Ala Moana route.” 

The proposed rail project, if it survives an initiative vote this November, is shaping up to the biggest public works and largest singular use of eminent domain in Hawaii’s history (I say “singlar,” since the Land Reform Act — the law challenged in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) — might still be considered the largest use of eminent domain, but it was piecemeal).   I guess our December 2006 prediction of the “dear…

Continue Reading Eminent Domain and the Holy Rail: “Dear Homeowner” Letters in the Mail?

The Supreme Court of Hawaii has scheduled oral arguments in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  The issues in the case include:

  • application of Haw. Rev. Stat. § 101-27(1993), the statute that provides that the government must make aproperty owner whole and pay damages when an attempt to take propertyby eminent domain is discontinued or dismissed
  • whether the government may concurrently prosecute more than one condemnation lawsuit to take the same property, at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefs are posted here, and a summary of the case and the trial court’s findings are here.  The argument will be held on Thursday, October 16, 2008, at 9:00 a.m. in the Supreme Court courtroom at the Continue Reading Oral Argument Scheduled in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

In a case a lot of folks have been following, a New Jersey appellate court yesterday struck down an attempt to declare properties “blighted.”  Turns out these properties in a residential neighborhood which was proposed to be cleared for luxury condos were not in fact blighted, or at least the government had not proven that they were.  The court remanded the case to the trial court since the city had not established the case that there was “substantial evidence of blight.”  City of Long Branch v. Anzalone, No. A-0067-06T2 (N.J. Super. Aug. 7, 2008).  This decision follows up on the New Jersey Supreme Court’s decision in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007), which held that “blight” means more than “not fully productive.”

The opinion is posted here.  A summary of the case from New Jersey Eminent Domain Law blog is…

Continue Reading New Jersey: Blight Not Right

An interesting story in the LA Times about eminent domain abuse and free speech in St. Louis, Missouri, “Political protest hits a brick wall.”  The story details the conflict between a property owner who commissioned a two-story mural on the side of a building that says “End Eminent Domain Abuse” and city officials who have asked a federal court to hold that it violates the city’s restrictions on the size of signs.  The owner claims its not the size that offends the city mothers and fathers, but the message.  The story has a great big photo of the mural, so you can decide for yourself.Continue Reading Protesting Eminent Domain Abuse