Public Use | Kelo

Subscribe to Public Use | Kelo via RSS

Get ready for this year’s Land Use Institute conference on “Planning, Regulation, Litigation, Eminent Domain, and Compensation,” to be held in Boston on August 13-16, 2008.  I can’t attend this year, but have in the past, and like all ALI-ABA land use conferences, it looks like it will be well worth going if you can.  The faculty is first-rate and includes professor-bloggers Gideon Kanner (Gideon’s Trumpet) and Patricia Salkin (Law of the Land) and other notables from our practice area. 

The keynote address will be presented by Harvard Law School Professor Charles M. Haar, revisiting his seminal 1955 law review article on land use planning “In Accordance With a Comprehensive Plan” (is there a single land use lawyer who hasn’t read this article at least once?).  The agenda for the conference, and other information is posted here.Continue Reading Seminar: Land Use Institute – Planning, Regulation, Litigation, Eminent Domain and Compensation (August 13-16)

In United States v. 14.02 Acres of Land, More or Less in Fresno County, No. 05-17347 (Jun. 24, 2008), the Ninth Circuit upheld a taking by the federal government for the Western Area Power Administration against challenges that the taking lacked congressional authorization and was not for public use.  The most interesting part of the decision begins on page 7269 of the slip opinion and the court’s discussion of private benefit takings.  Continue Reading Ninth Circuit Rejects Public Use Challenge to Taking for Power Grid

If my office ever takes another Fifth Amendment case up to the U.S. Supreme Court (my Damon Key colleagues Charlie Bocken and Diane Hastert argued and won Kaiser Aetna v. United States, 444 U.S. 164 (1979)), we’re going to do whatever we can to avoid filing it so it gets considered on June 23. 

Today’s the third anniversary of Kelo v. City of New London, and also the day the Court denied review to a case which is the logical follow-up to Kelo, Goldstein v. Pataki.

[A follow up from a reader’s comment: June 23 is “Kelo Day” – read more here.]

Continue Reading Note to Self: Avoid June 23 at the Supreme Court

The US Supreme Court today denied review to three cases we’ve been following:

  • Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008) (pleading pretext post-Kelo) – Justice Alito would have granted the petition.  Justice Alito had not been appointed to the Court at the time of Kelo, so this may signal another vote for property owners if this issue ever makes it back up.

Here’s the Order. Continue Reading Cert Denied in Three Cases

Several items today with a common theme of eminent domain and public use –

  • PropertyProf Blog posts a link to Professor Richard Epstein’s latest article, “Public Use in a Post-Kelo World.”  I agree with Professor Barros’ recommendation: “Given the author, obviously a must-read for anyone interested in public use issues.”
  • The Honolulu Advertiser’s Sean Hao details the issues when takings for Honolulu’s proposed +$4B rail transit project runs into a unique “old Hawaii” neighborhood in “Pearl City’s Banana Patch at risk.”  A neighborhood without city water, street lights, or sidewalks (but a community nonetheless) is slated for removal for a “park and ride.”

…
Continue Reading Public Use/Kelo Round Up

The Institute for Justice, the attorneys who represented Susette Kelo in Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the US Supreme Court held that economic development takings were not per se invalid, has filed a brief amicus curiae supporting the request for review in Goldstein v. Pataki, No. 07-1247 (petition for cert. filed Mar. 31, 2008), the Second Circuit decision I blogged about here.  The brief asserts:

In affirming the dismissal of Petitioners’ complaint, the Second Circuit held that taking property from A just to transfer it to B is constitutional — as long as the government refuses to admit what it is doing.

Brief at 2.  More on the issues in the case here.  The petition and other briefs are posted here.

Update: here is a story from the New York Sun about the brief (hat tip Continue Reading Amicus Brief in Goldstein v. Pataki Eminent Domain Pretext Case

Attorneys forHilaria and Baldomero Muniz and another landowner have asked a panel ofjudges at the 5th U.S. Circuit Court of Appeals in New Orleans to voida federal judge’s order that they open their land to surveyors for theborder fence.

They argue that the district judge erred when he allowedgovernment officials to attempt to negotiate property access aftersuing. They say the law requires the government to try to strike a dealbefore &mdash…

Continue Reading Takings Round Up

Today, we filed the Reply Brief for the property owner in County of Hawaii v. Richards,No. 28882, the consolidated appeal from two eminent domain lawsuitsfiled by the County in 2000 and 2005.  I won’t go into detail about the arguments and will let the brief speak for itself since I am part of thelegal team representing the appellant/property owner. 

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 at the same time
  • the standards for demonstrating that the government’s claim of public use is pretext to hide private benefit

The briefing is now complete. The appeal is before the Intermediate Court of Appeals of Hawaii, which…

Continue Reading Property Owner’s Reply Brief in Kona Eminent Domain Appeals: Damages for Failed Condemnations, Abatement, and Pretext

right-of-way_land_condemnations

In “189 Hawaii properties in transit’s path,” the Honolulu Advertiser’s Sean Hao writes about the potential use of eminent domain to take private property along the path of Honolulu’s proposed $4B rail transit project:

Some landowners in the path of the new rail line, who may havelittle choice but to sell to the city, are not pleased with thepotential eviction and complain that the process so far has left themin the dark.

The city, which has budgeted $70 million to purchaseland needed to build the rail system, will offer property owners fairmarket value for their land based on an appraisal. That could provecontroversial as some owners challenge the appraised value.

The article notes that the City’s web site has listed these properties for more than a year, but the information is difficult to locate, so many of the owners were not aware their properties may be acquired.  The…

Continue Reading Honolulu Rail Takings