Public Use | Kelo

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In 2007, the courts started to apply the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), especially how to mesh the Court’s deferential standard of review with property owner claims of pretext. 

Kelo left intact the standard that a determination that a taking will be for public use is measured by whether the legislature “conceivably” could have believed it would result ineconomic benefit, while leaving open the possibility that certain takings would not pass judicial review.  Justice Kennedy elaborated on that issue, and provided the roadmap for how a court should deal with a claim of pretext:

A court applying rational-basisreview under the Public Use Clause should strike down a takingthat, by a clear showing, is intended to favor a particularprivate party, with only incidental or pretextual publicbenefits, just as a court applying rational-basis review underthe Equal Protection Clause must strike down…

Continue Reading 2007 in Review: Post-Kelo Claims of Pretext

These seemingly unrelated court decisions were tied together with a common thread: private agreements for the most part are not substitutes for public processes, whether it is eminent domain, rezoning, or the granting of permits.   

Several courts determined that agreements in which government agreed with private parties to exercise eminent domain were invalid: 

  • One case (in which I am involved as counsel for the property owners so won’t comment in detail) involved a development agreement between the County of Hawaii and a developer to take property for a road.  The trial court struck down the attempt — here is the court’s Findings of Fact and Conclusions of Law.  More on the case here.
  • In a similar vein, a Washington state court of appeals in HTK Mgm’t, L.L.C. v. Rokan Partners, No. 58113-9-I (Wash. Ct. App., July 23, 2007) held that eminent domain “is an inherent power

…
Continue Reading 2007 in Review: Private Agreements and Public Process

In a case at the intersection of Kelo-style eminent domain and First Amendment church-state issues, the Pennsylvania Supreme Court in In re Condemnation of 1839 North Eighth Street, No. 36 EAP 2006 (Dec. 29, 2007), held that the taking of property designated as “blighted” pursuant to a redevelopment plan, and for a nominal price transferring it to a religious entity did not violate the U.S. Constitution’s Establishment Clause.

In 1968, a Philadelphia neighborhood which included the subject property was certified as “blighted” by the city’s planning commission.  Thirty-four years later, in 2002, a coalition of Catholic groups asked the city’s redevelopment authority to take 39 acres of the neighborhood, including the subject property, and turn it over to establish a “non-denominational, faith-based, not tuition based school.”  The city approved of the plan and condemned the property, listing the Catholic group as the developer.  The property owner objected…

Continue Reading PA Supreme Court Upholds Use of Eminent Domain to Take Private Property And Turn Over to Religious School

In Aspen Creek Estates, Ltd. v. Town of Brookhaven, 2007 NY Slip Op 09583 (Dec. 4, 2007), the Appellate Division of the New York Supreme Court approved a taking of private property to preserve it as farmland.  The court’s majority held that the goal of preserving farmland generally qualifies as a public use/purpose, and that there was no evidence of pretext in the record demonstrating that the presumption of public use should be questioned, even though the property owner asserted that the land would eventually be leased or sold to another private owner.  The facts of the case are set out in the opinion, and by Professor Patty Salkin in her analysis of the decision, so I won’t repeat them in detail here.  Two points, however, merit discussion.

First, the property owner asserted that because the taking was not part of a plan, it did not deserve judicial…

Continue Reading Comprehensive Eminent Domain Plan: If You Don’t Have One, The Court Will Make One Up

The NY Times posts a story, “Despite Earlier Defiance, Holdouts in Columbia’s Expansion Zone Are Down to 3,” about Columbia University’s move into the area north of W. 125th Street.  Hat tip to No Land Grab for the link. 

New York City is a long way from the jurisdictions that are theusual subjects of the posts on this blog, but this case has interestedme since I am familiar with both sides of the dispute.  When I was atColumbia Law, I used businesses mentioned in the article: I filled mytank at the service station (yes, I lived in Manhattan and owned acar), had a couple of meals at the McDonalds on 125th (starving studentdays), and stored some of my stuff at the Tuck-it-Away on Broadway. See also these posts on the same topic: Columbia Pulls a Kelo, Columbia U. Takes Manhattan, and Columbia U’s Expansion Plans and Continue Reading NY Times on Columbia U’s Expansion Plans

The NY Sun posts an opinion piece “Columbia Pulls a Kelo” —

Most don’t know that a private owner who covets the property of another can, outside the scrutiny of the public eye, start the condemnation process by writing a check to the self-funding government agency — to finance costs, including government staff salaries — so that agency will put together materials advancing the condemnation. In that vein, Columbia University, interested in acquiring a swath of West Harlem, wrote a $300,000 starter check to ESDC in 2004, years before any public hearings.Continue Reading NY Sun Opinion: Columbia Pulls a Kelo

Columbia University (one of my alma maters) is located in historic Morningside Heights in New York City’s borough of Manhattan.  It has a beautiful campus — an urban oasis with easy access to both downtown and the west side bridges and tunnels — which it wants to expand into the Manhattanville neighborhood on the other side of W. 125th Street.  Apparently, Columbia has promised its residential neighbors it would not leverage the City’s power of eminent domain to take their properties, and commercial property owners now are seeking similar assurances. 

The Castle Coalition posts “Columbia’s Harlem Takeover,” with the latest developments in the case, and AM New York posts this story.  I previously posted about this issue here.

Update: NY Times story on the issue here. Continue Reading Columbia U. Takes Manhattan

From January 3 – 5, 2008, ALI-ABA is putting on its annual program of eminent domain seminars, this time in San Francisco, California.  Two programs are being offered: “Condemnation 101: Fundamentals of Condemnation Law and Land Valuation” for those who want a course on the basics, and “Eminent Domain and Land Valuation Litigation,” for those who have some experience in this area of law.  The links above have agenda and faculty details, as well as registration information.  If you register by December 17, 2007 (midnight) using the code “DEC200730,” you will get 30% off of these or any other ALI-ABA course or materials.  Great deal.

These seminars are perhaps the best of their kind offered.  The faculty is great, and the agendas look like they will be their usual high quality.  I’m attending the advanced course.  If you register, be sure to let me know and Continue Reading Eminent Domain Seminars – January 2008

Professor Ilya Somin posts “If You Ever Build It, Maybe Some Economic Development Will Come – The New London Development Project Since Kelo.” 

However, two and one half years after the Supreme Court ruled in favor of the city and some seven years after the condemnation proceedings were first initiated, little or no economic development has occurred on the condemned land.

. . .

If the Kelo condemnation ultimately ends up creating more economic costs than benefits, that would not be a surprising development. For reasons I have explained in great detail in several articles (e.g. here and here), economic development takings often harm local economies more than they benefit them. Local governments and the private interest groups that seek to acquire condemned land have strong incentives to overstate the benefits of such condemnations, while understating the costs. And it is extremely difficult – often impossible – for…

Continue Reading “I’m Shocked, Shocked to Find That Gambling Is Going On In Here!”

Check out this NYT story on a $12.4m verdict in a Connecticut eminent domain abuse case. 

A vast majority of cases challenging such takings are resolved through injunctions; takings temporarily halted by court injunction are often abandoned. But because Judge DeMayo had granted New England Estates and the landowners the right to seek a claim for damages, this case took a different path: The developer and landowners took it to trial, alleging a violation of their civil rights under the takings clause of the Fifth Amendment and seeking lost profits.

Mr. Hollister, the developer’s lawyer, maintained that town officials had made up reasons to take the land simply to stave off development.

Unlike the City of New London, which exercised its power of eminent domain after a “fair, public and factual” process, Mr. Hollister said, Branford pursued a process “so unfair and distorted as to violate the Constitution.”

The jury…

Continue Reading New York Times: Judging Eminent Domain