Public Use | Kelo

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  • Today’s oral arguments in Missouri Supreme Court in the Tourkakis appeal, a case of an attempted taking for economic development, have been posted here (9mb mp3).
  • Background on the case is posted here by PLF on Eminent Domain, and the briefs are posted here.
  • Charley Foster at Planet Kauai has an interesting post on Hawaii’s automatic permit approval statute here. 

Continue Reading Eminent Domain and Land Use Round-up

An interesting discussion is going on over at Volokh Conspiracy about Professor Gideon Kanner’s critique (posted here and here) of journalist Jeffrey Toobin’s new book on the Supreme Court, particularly the section dismissing the reaction to Kelo as the product of right-wing reactionaries. 

The posts are worth reading for an inside look at what makes a Supreme Court case, especially the amicus process.  Don’t miss Kanner’s responses in the comments here, here, here, here, and his deconstruction of Berman, Midkiff, and Kelo here.

We filed amicus briefs in Kelo (supporting Mrs. Kelo, natch) and the regulatory takings case heard the same day, Lingle v. Chevron U.S.A., Inc.Continue Reading Somin on Kanner on Toobin on Kelo

I’ve had a chance to review Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a decision by the Ninth Circuit on the Contracts and Due Process clauses, but which also involves how local governments exercise the power of eminent domain.  The case revolves around Chapter 38 of the Honolulu Revised Ordinances, which was the local version of the “land reform act” at issue in HawaiiHous. Auth. v. Midkiff, 467 U.S. 229 (1984) before it was repealed in 2005.

Background

Finding thatthe economic ills purportedly caused by the concentrated ownership of privatesingle-family residential property in Hawaii,Haw. Rev. Stat. ch. 516 allowed homeowner/lessees to petition the HawaiiHousing Authority to exercise eminent domain on the homeowner’s behalf andcondemn the fee simple interest underneath their homes from the lessor, andtransfer it to the lessee upon payment of just compensation.

After that statute was upheld by the U.S.

Continue Reading Deal Or No Deal: Ninth Circuit Says Honolulu May Have to Live Up to Its Eminent Domain Promises

The US Court of Appeals for the Ninth Circuit has issued an opinion in Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a case involving the city’s repeal of Chapter 38, Honolulu’s version of the “land reform act” at issue in Midkiff, allowing the conversion of condominium leases to fee simple absolute by eminent domain.   Leaseholders who were caught mid-process when Chapter 38 was repealed, brought claims under the Due Process and Contracts clauses.  The district court dismissed the claims under the reserved powers doctrine, but the Ninth Circuit reversed, and sent the case back for further proceedings.  I haven’t had a chance to digest it in full, but will post a complete rundown shortly. 

Update: complete summary of the opinion here.Continue Reading 9th Cir. on Due Process and Contracts Clause

After Lingle v. Chevron, U.S.A., Inc., 544 U.S. 528 (2005)informed us that the “substantially advance a legitimate state interest”test was one of substantive due process, not regulatory takings, the courts began revisiting the long-neglected topic of substantive due process in the land use context. 

  • The Ninth Circuit finally jettisoned the Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc) doctrine in Crown Point Development, Inc. v. City of Sun Valley, 506 F.3d 851 (9th Cir. Nov. 1, 2007).  Armendariz stood for the unusual proposition that a propertyowner’s claim for violations of substantive due process rights were”subsumed” within the owner’s claim for violation of the TakingsClause.  Thus, in land-related issues, a property owner could onlybring takings claims.  No longer, as I wrote here.

…
Continue Reading 2007 in Review: Taking Substantive Due Process Seriously Again

Several cases focused on the issue of due process notice in eminent domain.  In Divine v Town of Nantucket,449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme JudicialCourt of Massachusetts invalidated the town’s 1968 exercise of eminentdomain since the town’staking listed the owners of the property as “owners unknown,” which wasnot sufficient notice to the landowner.  In Brody v. Village of Port Chester,No. 00 Civ. 7481 (HB) (SDNY, July 18, 2007), a New York federal courtheld that a municipality wrongfully exercised eminent domain and deniedthelandowner procedural due process by not providing proper notice of hisright to contest the taking. Continue Reading 2007 Land Use in Review: Due Process Notice in Eminent Domain

An important case from the Pennsylvania Supreme Court.  In Middletown Township v. The Lands of Josef Seegar Stone, No 64 MAP 2006 (Dec. 28, 2007), the court upheld the power of a local government to take property “for any legitimate purpose,” notwithstanding statutory language that did not extend authority to the town to take property for “open space.”  However, the court struck down the attempted taking because the evidence showed that the realpurpose of the taking was something other than the Township’s stated reason. 

The Township filed a Declaration of Taking to condemn farmland the Stone family wanted to subdivide and presumably develop.  The Township wanted to take the property for “recreational and open space purposes.”  Slip op. at 2.  The property owner objected, arguing the Township was specifically prohibited by state statute from taking land to preserve open space and prevent development.  Pennsylvania’s Lands Act prohibits local government…

Continue Reading PA Supreme Court on Public Use and Pretext – Take That, Kelo