inversecondemnation.com: More On Pretext In Eminent Domain

March 24, 2009

More On Pretext In Eminent Domain

Following up on this story, West Hawaii Today reports "Attorneys argue against Supreme Court ruling on bypass," about whether a second attempt to condemn property ostensibly for a road is pretextual when the court determined the first attempt was unconstitutional and nothing changed:
Attorneys for the Richards family and the Coupe Trust, in documents filed in 3rd Circuit Court Friday, argue that the condemnation action initiated by Hawaii County in 2005 was essentially the same as one filed in 2000 and later dismissed.
Disclosure: we represent the property owner in this case.
The Hawaii Supreme Court in County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. Dec. 24, 2008) (posted here) held that courts have an obligation to take allegations of pretext seriously -- even when the taking is for a "classic" public use -- and remanded the case for consideration of evidence of pretext.
The proposed findings we submitted referenced in the WHT article are available here. The County of Hawaii's proposed findings are available here. For further detail and analysis, see "Determining Eminent Domain Pretext in Serial Takings."
[Note: the headline is a bit off -- no one is arguing "against" the Supreme Court ruling; on remand the parties are applying the Supreme Court ruling.]

Posted on March 24, 2009 in ▪ Development agreements, ▪ Eminent Domain | Condemnation, ▪ Land use law, ▪ Property rights, ▪ Public Use | Kelo | Permalink

events | notices

All upcoming and past seminars, conferences, and events here
October 20, 2010
As a follow up to the live panel discussion of the Supreme Court's "judicial takings" case, Stop the Beach Renourishment, Inc. v. Florida Dep't of Envt'l Protection, the ABA will be presenting a teleconference on the case.

I will again be moderating a panel with experts Professor John Echeverria (Vermont Law School), Jim Burling (Pacific Legal Foundation), Richard Frank (U.C. Davis Law School), and Dan Stengle (one of the attorneys who argued the case).

More details to be posted as they become available.

August 6, 2010
One of the featured CLE sessions at the 2010 American Bar Association annual meeting in San Francisco was the Section of State and Local Government Law's session on the beach renourishment case, Stop the Beach Renourishment, Inc. v. Florida Dep't of Envt'l Protection, a case involving "judicial takings" and ownership of beachfront land. The Section of Real Property, Trusts, and Estate Law co-sponsored the session.

I moderated a panel discussing the case and its implications. Also on the panel were Professor John Echeverria (Vermont Law School), Jim Burling (Pacific Legal Foundation), Richard Frank (U.C. Davis Law School), and Dan Stengle (one of the attorneys who argued the case).

May 6, 2010
I presented a session on Are Courts Waking Up To Property Rights? at the Western Manufactured Housing Communities Association's Spring Seminar.

April 30, 2010
I moderated a presentation of the recently published book Takings International by Professor Rachelle Alterman, the Chair in Architecture/Town Planning at Technion Israel Institute of Technology.

In addition to Professor Alterman, the panel included Professor Russell Brown (University of Alberta) and Professor Bryan Schwartz (University of Manitoba) who gave details and criticisms of Canada's approach, Professor David Callies (University of Hawaii) discussing the Asia and Pacific approaches, and Professor Tom Roberts (Wake Forest University) comparing our homegrown system.

In a separate program on Land Use Hot Topics, I presented a paper Recent Developments in Challenging the Right to Take in Eminent Domain.

These sessions were part of the ABA State and Local Government Law Section's Spring Meeting in Miami.

September 2010