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Does The "If It Looks Like A Tax And Walks Like A Tax, It Is A Tax" Rule Apply To Public Use?

We haven't followed the Obamacare cases except as interested observers, and have largely avoided digging deep into the opinions, preferring to allow minds immeasurably superior to ours to provide the high-altitude view. However, we naturally scanned the majority opinion for any tie-in to our favorite topic, eminent domain.

Starting on page 33, the Chief Justice writes about the "functional" approach to legislative labeling, pursuant to which the majority concluded that the requirement to purchase insurance (the "mandate") was a constitutional exercise of Congress' taxation power, even though Congress did not call it a "tax," and indeed packaged and sold it as anything but a tax. The majority concluded, "[t]hat constitutional question [is] not controlled by Congress's choice of label." Slip op. at 34. The opinion then provides examples where the Court held that particular exactions "not labeled taxes nonetheless were authorized by Congress's power to tax," because the Court is "concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it."

Why that's a splendid idea, bully on that! We're starting to appreciate the Chief's "functional" approach. What say we apply that same test to a legislature's statement regarding the "public use" for which it is condemning property? What, you say, we can't do that, the standard the courts apply in eminent domain is to look only at "the taking's [stated] purpose, and not its mechanics?"

I, for one, am glad that CJ Roberts has seen the light, and will vote to grant cert next time someone files a petition seeking to overturn Berman, Midkiff, and Kelo.

Honolulu Premiere: "Urbanized" - Designing Cities, Working Cities

Thanks to the Land Use Prof Blog for getting the word out about the most recent documentary from filmmaker Gary Hustwit, "Urbanized," which will have its Hawaii premier this weekend as part of Interisland Terminal's "Manufacturing Reality" film series.

The film examines how cities are designed -- whether on purpose or though usage -- and what works and what doesn't. It covers a range of issues: zoning, architecture, mass-transit, sewage, redevelopment, sprawl, smart growth, and economic inequality. Urbanized features planners, architects, artists, and lawyers (including colleague Grady Gammage, Jr., with a different perspective on "sprawl" in Arizona), discussing their visions of urban design.

From the film's description page:

Urbanized is a feature-length documentary about the design of cities, which looks at the issues and strategies behind urban design and features some of the world’s foremost architects, planners, policymakers, builders, and thinkers. Over half the world’s population now lives in an urban area, and 75% will call a city home by 2050. But while some cities are experiencing explosive growth, others are shrinking. The challenges of balancing housing, mobility, public space, civic engagement, economic development, and environmental policy are fast becoming universal concerns. Yet much of the dialogue on these issues is disconnected from the public domain.

Who is allowed to shape our cities, and how do they do it? Unlike many other fields of design, cities aren’t created by any one specialist or expert. There are many contributors to urban change, including ordinary citizens who can have a great impact improving the cities in which they live. By exploring a diverse range of urban design projects around the world, Urbanized frames a global discussion on the future of cities.

Especially key for Honolulu: the bits about rail vs. Bus Rapid Transit and traffic. The entire film is compelling, and though-provoking. We will have a complete review soon. But in the meantime, here's your chance to see Urbanized yourself. 

Details: Urbanized (Gary Hustwit 2012), Saturday, June 23, 7:00 p.m., at R&D, 691 Auahi Street, Honolulu, 96813, 808-550-8457. More details, and ticket purchase here. If you can't make it, the film is available on DVD/Blu-ray, for streaming, and on Netflix.

"I Represented The Devil Of Brooklyn"

A must read: our Owners' Counsel of America colleague Michael Rikon, the doyen of New York's eminent domain bar, has published "I Represented The Devil Of Brooklyn," in the Practical Real Estate Lawyer. As Mike writes, "it wasn’t a demonic fight in front of the hot dog line at Nathan’s in Coney Island ... this legal tale is about a property owner in Prospect Heights who had the absolute gall to object to the taking of his property for an arena and related real estate development by a well-connected real estate developer."

If that sounds familiar, it is: Mike represented Daniel Goldstein, the plaintiff-in-chief in the multi-jurisdiction Atlantic Yards eminent domain fight, and the protagonist of the documentary Battle for Brooklyn in the final condemnation case in New York's courts. Other lawyers had handled Goldstein's attempt to stop the condemnation and the environmental challenges, and Mike stepped in once no avenues remained to stop the taking. His article details the multiple court rulings, and most interestingly, the strategy that ultimately resulted in a settlement for the just compensation owed to Goldstein:

I thought the papers submitted [supporting the OSC for a Writ of Assistance] were somewhat strident, actually perhaps a little hysterical. I was both surprised and pleased. Judges in general do not like to see personal attacks on parties. Nor do they like signing an order directing the sheriff to throw a family out on the street.

...

What happened in court was that after oral argument, Justice Gerges asked us into his conference room. There was no question, that as a matter of law, the Writ could not be granted. The discussions then focused on the monetary amount to settle the "just compensation" claim, settle on a more imminent
eviction date, and enable Mr. Goldstein to find temporary housing, storage, two moving expenses and his legal fees.

Oddly, the amount of compensation was agreed to very quickly. What took several hours was Forest City’s insistence that Daniel not be permitted to speak in opposition to the project. He refused. In fact, he said not for $10 million would he agree to waive his First Amendment rights. I told the judge that this was a Fifth Amendment case, not a First Amendment case and "just compensation" could not be conditioned on the waiver of another part of the Bill of Rights.

Mike's candid walk-through of the case is a revealing insider's look at how the condemnation action was settled, and serves as a final epilogue to the cases and the film. It is also a reminder of why property owners fight to keep their homes and businesses from being condemned, especially for "economic development." He was also kind enough to quote our commentary on Goldstein's settlement, where we critiqued those who claimed that Goldstein "folded" when he accepted the compensation settlement.

For additional thoughts on Mike's article, see That's The Way It Was in Brooklyn - The Goldstein Case Revisited by Gideon Kanner.

New(er) Eminent Domain Law Blog Worth Following

Check this out: my Owners' Counsel of America colleague Kevin E. Anderson has a blog on eminent domain and related issues, forcusing on decisions from the Utah state and federal courts, Eminent Domain Review.

It's not a new blog (Kevin has been posting since at least 2011), but it's new to us, so we though we would pass it along to you.

Among the categories he covers are the latest cases from the Utah Supreme Court, just compensation issues, and regulatory takings.

We're subscribing, and so should you.

Colorado: Company Lacks Eminent Domain Power To Construct Gas Pipeline

In Larson v. Sinclair Transp. Co., No 09SC966 (May 21, 2012), the Colorado Supreme Court held that a state statute does not grant a company such as Sinclair the ability to take property for the construction of petroleum pipelines.

The statute, Colorado Rev. Stat § 38-5-105, is not exactly elegant in its wording:

Such telegraph, telephone, electric light power, gas, or pipeline company or such city or town is vested with the power of eminent domain, and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems for such purposes by means thereof. Whenever such company or such city or town is unable to secure by deed, contract, or agreement such rights-of-way for such purposes over, under, across, and upon the lands, property, privileges, rights-of-way, or easements of persons or corporations, it shall be lawful for such telegraph, telephone, electric light power, gas, or pipeline company or any city or town owning electric power producing or distribution facilities to acquire such title in the manner now provided by law for the exercise of the right of eminent domain and in the manner as set forth in this article.

 

Sinclair owned easements across private land allowing it to run an underground gas pipe, but it wanted a second one. After negotiations with the property owner failed, Sinclair attempted to condemn the easement. Both the trial court and the court of appeals concluded it had the authority to do so.

The Colorado Supreme Court reversed, and held that the statute "intended to authorize condemnation for the construction of electric power infrastructure." Slip op. at 5. The court started by applying the narrow rule of construction applicable to eminent domain statutes, which are generally construed against the condemnor, especially in circumstances such as these where the power is delegated to a private entity. The court rejected the argument that the phrase "pipeline company" covered Sinclair since it is company and it "conveys petroleum products through its pipelines." Slip op. at 6. 

That would seem to address the issue, no? Isn't a company that relies on pipelines a "pipeline company?" While the court of appeals thought so, the Supreme Court held that the statute contains no definition, but other language in the statute shows that the only companies vested with condemnation power are electric companies ("..and authorized to proceed to obtain rights-of-way for poles, wires, pipes, regulator stations, substations, and systems..."). Neighboring statutes also reveal that the power was only meant for electric companies, and "neither the word petroleum nor the word oil is found anywhere in Article 5 of Title 38." Slip op. at 7.

There's a lot of verbiage in the opinion devoted to how to read a statute, and a long dissent disputing the court's conclusion, relying mainly on legislative history as support. Read them if you are interested. But one question remains: Colorado law seems to have provisions expressly granting all sorts of private entitites eminent domain power for certain purposes, so why doesn't it have anything allowing petroleum pipelines?

Maybe is should. But it currently doesn't, and that was all the court needed to know. 

Larson v. Sinclair Transp. Co., No. 09SC966 (Colorado May 21, 2012)

Links From Today's Eminent Domain Conference

Here are the cases we discussed in this morning's session at the Eminent Domain & Land Use in Hawaii seminar:

• Brown v. Howard, No 26991 (June 21, 2011), the case in which the South Carolina Supreme Court held that an attorney's services constitute property, and that property was taken when a trial court refused to let a court-appointed attorney withdraw from defending a criminal case, forcing him to work for a fee capped at $3,500. Here's the Bar Association's amicus brief on the issue.

• The California Supreme Court case holding that a lender's withdrawal of a deposit does not waive defenses of ther condemnation defendants.

• Kelo v. City of New London, 545 U.S. 469 (2005).

• County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a "classic" use).

• Coupe II - all about recovery of damages under Haw. Rev. Stat. § 101-27 when a taking fails or is defeated

• County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (2010) (Coupe III) (the above case after remand - affirming the legal test but finding that the property owner did not prove pretext, ), cert. denied (2011).

• The cert petition in Coupe III.

• The recent case on § 101-27 from the Hawaii Intermediate Court of Appeals that Jim Mee discussed - Sherman v. City and County of Honolulu, No. 28945 (Dec. 27, 2011) (memorandum opinion).

• Middletown Township v. Lands of Stone, 939 A.2d 331 (Pa. 2007) (a court reviewing a public use challenge should look to objective evidence of the condemnor's "real purpose"). 

• 9th Circuit: California Raisins Were Not Taken (Horne v. U.S.D.A., No. 10-15270 (9th Cir. July 25, 2011)).

• The petition for rehearing en banc in the Federal Circuit case about attorneys fees under the Uniform Relocation Act.

Honolulu Eminent Domain Seminar - May 12, 2012

There is still time to register for the Eminent Domain & Land Use in Hawaii seminar, to be held this Thursday, May 12, 2012, in downtown Honolulu. Along with James Mee, I am leading the session "Eminent Domain Update" in which we will talk about the latest in public use issues from the U.S. and Hawaii Supreme Courts, and other recent developments in condemnation law.

The Chair of the program is my Damon Key partner Mark M. Murakami. Also on the agenda is a session on potential burials issues in the rail project with another Damon Key partner, Greg Kugle, and a session on rail bid protests with Anna H. Oshiro. The final session of the day will be devoted to ethics, so you can get your MCLE credit requirement at least partially fulfilled for this year.

The complete faculty list and agenda is available here. Come, join us.

Eminent Domain & Land Use in Hawaii

NYC Property Owners Victory: Willets Point Eminent Domain Abandoned

Congratulations to our Owners' Counsel of America colleague Michael Rikon on the news that New York City has withdrawn its attempt to take his clients' land in the Willets Point section of Queens.

According to this story, "Michael Rikon, a lawyer representing property owners in Willets Point, challenged the city’s legal bid to condemn property in the Iron Triangle to make way for the first phase of the $3 billion Willets Point Redevelopment Project, which would take the place of the auto shops and pockmarked streets in the neighborhood."

The New York Observer reports that the city halted the eminent domain proceedings on the eve of the hearing (it was scheduled to be heard next Monday) and withdrew the case from state appellate courts. Remember, in New York, eminent domain actions start in the Appellate Division. We posted the brief Mike filed in the case here, and an amicus brief supporting the property owners here.

Mr. Rikon, an attorney for Willets Point United, a landowner group fighting the city, said that the city faced a tough case because of issues ranging from a failure to have translators at the eminent domain hearing (many property owners are Latino) to not providing notice in person and having no clear public use yet assigned (there was not yet a developer in place at the time of the hearing). "It’s strange, too, because rarely do you win these kinds of cases," Mr. Rikon said of eminent domain defendants, "but I really think this could have been different."

His clients, he said, "are pretty ecstatic." That said, their future remains uncertain as the city owns much of the land in Willets Point now, and whether it wants to remain a landlord to chop shops seems unlikely. "We wish we knew what the city would do with those leases, because they’re commercial leases and the city is under no obligation to renew them," Mr. Rikon said. "Really, how interested is the city in rental income? Not very."

Mr. Rikon also said there was no reason the city could not simply hold another eminent domain hearing in the future, correcting any apparent errors, and take the property all over again. He was hopeful that might never happen. "The remediation alone will cost billions of dollars, so is it really worth it?" he said.

Well done, Michael.

D.C. App Again Weighs In On Kelo And Pretext

Here's the latest chapter in the Skyland Shopping Center saga that has given us Franco v. National Capital Revitalization Comm'n, 930 A.2d 160 (D.C. 2007) and several other reported opinions (DeSilva v. District of Columbia, No. 10-CV-1069 (Feb. 24, 2011); Rumber v. District of Columbia, 487 F.3d 941 (D.C. Cir. 2007); Franco v. District of Columbia, 3 A.3d 300 (D.C. 2010); Rumber v. District of Columbia, No. 09-7035 (D.C. Cir. Feb. 26, 2010) (per curiam); and Oh v. National Capital Revitalization Corp., 7 A.3d 997 (D.C. 2010)).

The latest opinion from the D.C. Court of Appeals, Franco v. District of Columbia, No. 11-CV-734 (Mar. 15, 2012), is the appeal after remand of the 2007 Franco decision, which recognized that property owners may object to a taking on the grounds that the proffered public use is really a pretext hiding private benefit.

We reversed and remanded because the trial judge had not considered appellant’s specific factual allegations, which were misleadingly contained in the section entitled "counterclaims." We instructed that the inquiry into whether or not a project was approved for pretextual reasons should focus on whether or not the project was designed to meet the purported public purpose, not on the subjective motivations of the legislature or officials involved in the project. Franco I, 930 A.2d at 173-74. Finally, we emphasized "that further proceedings, including discovery, should honor the 'longstanding policy of deference to legislative judgments' concerning the public purpose of a taking."

Slip op. at 3. On remand, the trial court struck all of the property owner's defenses, granted the District partial summary judgment, gave the District possession, and ordered the property owner to vacate.

The Court of Appeals first rejected the owner's claim that the D.C. Council exceeded its authority in adopting the Skyland Act, the ordinance that allowed the taking, because the taking was not for a public purpose. The claim was couched as one of subject matter jurisdiction, but the court rejected the argument, holding that "[a]ppellants confuse subject-matter jurisdiction with the merits of the action." Slip op. at 5. The court held that the Act did not exceed the Council's authority.

The court also affirmed the trial court's grant of summary judgment to the District:

First, we note that the District need only show that the D.C. Council approved the Skyland legislation for the purpose of economic development in order to defeat the allegation of pretext. Kelo, 545 U.S. at 483-84. Second, we reiterate the standard of deference to the legislative decision to which we are bound. Berman v. Parker, 348 U.S. 26, 33 (1954). In Franco I, we left open the possibility of a trial on the issue of pretext, but following the prolonged discovery period, appellants have not shown that there remains a triable case regarding the issue of pretext.

Slip op. at 8. The court noted the references in the record that the Council "could rationally have approved the legislation on the basis of economic development." Id. "So, in this case, we defer to the D.C. Council’s determination, fully supported by the record, that the Skyland Shopping Center was sufficiently distressed to justify a program of economic development." Id.

Citing Kelo, the court rejected the argument that the Council could not have believed that the redevelopment would be successful, because there is no requirement that the expected public benefits would actually come to pass. It is enough that the Council believed -- or, more accurately, professed to believe -- that the plan will work. The court also held that the taking was executed pursuant to a carefully considered development plan, and that some private benefit is not enough to invalidate the taking. This opinion elevates form over substance, and essentially makes the first Franco opinion a hollow promise: if a condemnor merely states that it is taking property for redevelopment, no amount of private benefit will overcome it. The court also conflates the public use inquiry with the question of pretext, which is predicated on the stated public use or purpose not being the actual reason for the taking.

Is this the last chapter in the case? We will keep watch in the event a cert petition is filed. Our thanks to colleague Elaine Mittleman for sending this opinion our way.

Franco v. D.C., No. 11-CV-734 (D.C. App. Mar. 15, 2012)

Arkansas: Public Use Determinations Not Immediately Appealable

The city takes property for a bike trail. It deposited estimated compensation in court, and sought and obtained immediate possession. The owner disputed whether the city had the power to take his land, but the trial court rejected these arguments. The owner filed an interlocutory appeal on the public use and necessity issues. The city moved to dismiss for lack of appellate jurisdiction: the valuation phase of the trial was not finished, so there was no final judgment and it was too early to appeal. 

The Arkansas Supreme Court agreed. Thomas v. City of Fayetteville, No. 11-930 (Mar. 15, 2012). Because the issue of compensation remained for the trial court to determine, the judgment allowing the taking was not final. Piecemeal appeals are generally not favored, and the court refused to adopt the property owner's call for an exception because disallowing the appeal would "divest him of a substantial right in such a manner as to put it beyond the power of the court to place him in his former condition." Slip op. at 5. In other words, allowing the city to take and modify the property does not mean that the city could not restore the land if the owner ultimately wins on the public use issue.

Further, the City has not conceded that commencing construction would render it impossible to restore Thomas’s property to its previous condition, and Thomas has not presented any evidence that would prove such an effect.

Slip op. at 5. Appeal dismissed without prejudice.

The result would have been different in those jurisdictions such as Hawaii, which allows immediate interlocutory appeal of public use and other power-to-take issues as a matter of statute, and in other jursdictions by judicial decision (see, e.g., this recent case from the North Carolina Court of Appeals, holding that the power to take affects a "substantial right" and is immediately appealable).

Thomas v City of Fayetteville, No. 11-930 (Mar. 15, 2012)

Wednesday Round-Up

Here's what we're reading today:

• Debating the Constitutinality of New York's Blight Condemnations - lawprof Ilya Somin, via Volokh.

• Our colleagues at the California Eminent Domain Report on "The Anti-SLAPP, Something to Remember"

• House Shelves Hawaii Vacation Rental Bill - a follow up from Honolulu Civil Beat to this story. 

• The good folks at Sheppard Mullin give us their view of the PPL Montana opinion.

• The rent is too damn high! - Reason Foundation on "The Case Against Rent Control"

Also, here's an inverse condemnation case we're watching that the Texas Supreme Court recently agreed to review:

• The Supreme Court of Texas Blog on Kopplow Dev., Inc. v. City of San Antonio, No. 11-0104: "The city built a water project that affected the use of Kopplow’s property, and after being sued for inverse condemnation, the city decided to sue to condemn the land outright. The petition raises a variety of issues, including how to value the portion of the land taken."

• Here are the briefs.

• Here's the docket.

Amicus Brief In Willets Point Case: Condemnation For Redevelopment Needs A Plan

After the New York Court of Appeals' decisions in the Goldstein (Atlantic Yards) and Kaur (Columbia) cases, we opined that there were not many limits remaining on the government's exercise of eminent domain in that state.

But even after those cases, there's got to be some limits, no?

Our Owners' Counsel of America colleague Michael Rikon is currently testing that hypothesis in a case arising from Willets Point, a Queens neighborhood adjacent to Citi Field (new home of the Mets). Mike represents property owners (mostly small businesses) in the case, their public use challenge to the City of New York's attempt to take their Willets Point properties for "redevelopment." For more, see Willets Point United, and this video.

The problem is, the city doesn't have a redevelopment plan, or any plan regarding what it intends to do with the land beyond making it a "lively, mixed-use, sustainable community and regional destination." Talk about rainbows and unicorns. Seriously, that description sounds like a computer-generated list of trendy planning buzzwords, and the property owners have rightly asked how can a taking of property be "for public use" if the city itself can't say what "use" it plans to make of the property?

The case is now in the Appellate Division (remember, this is New York, where eminent domain challenges are instituted in the appeals court), and the Property Rights Foundation of America filed this amicus brief in support of the Willets Point owners. Read it for a quick summary of the case and the issues:

In particular, this Court can and should hold that the government may not take property for the asserted public purpose of urban redevelopment, where there is no specific development plan identified at the time of the taking; where the government's conceded failure to provide infrastructure and ordinary municipal services is a principal contributing factor to the alleged "blight'; and where financial, environmental, legal, and practical obstacles make it highly and unreasonably speculative that the purported public purpose will ever be achieved. PRFA's principal contention in this amicus brief is that notwithstanding past decisions by both federal and New York courts by which this Court is constrained, there remains an important role for courts to play in articulating and policing boundaries on the use of eminent domain.

Br. at 4.

Brief of Amicus Curiae The Property Rights Foundation of America, Inc. In re Serrone (Willets Point), No. 2...

ALI-ABA Annual Eminent Domain Conference, January 26-28, 2012, San Diego

There's still time to join us in person on via the webcast for the annual eminent domain law conferences (January 26-28, 2012) produced by the American Law Institute-American Bar Association. We're back in San Diego this year. 

We're on the faculty ("The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases" with Professor David Callies), so if you attend either course, please stop by and say hello.

San Diego is a very appropriate venue, given the city's persistent use of "redevelopment" and eminent domain, a process that the California Supreme Court recently ended (see video above - more here). This recent development will be one of the hot topics of discussion.

Here's the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation's most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty.

These really are fantastic programs (one of the great benefits of being on the faculty is that I get to sit in on the other sessions), so please join us if you are able.

Tonight: San Francisco Screenings Of "Battle For Brooklyn" At The Roxie

San Francisco Bay Areans: come join us at the Roxie Theater (3117 16th Street between Valencia and Guerrero, San Francisco) tonight for screenings of Battle for Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards eminent domain case. Two shows, 7:00 and 9:00 p.m. Details, including ticket purchase here.

I'll be there to answer questions on the legal aspects of the film, as well as discuss its relevance to California, where redevelopment and eminent domain abuse are front page stories due to the California Supreme Court's recent decision upholding the Legislature's abolishment of the state's 400+ redevelopment agencies.

Also showing is "The Tragedy of Eminent Domain: The destruction and survival of a New York City neighborhood." This short tells the story of how a project called "Manhattantown" destroyed a historic African-American community on the Upper West Side in the 1950s. Manhattantown set the model for thousands of cases of eminent domain abuse that came later, from Poletown, to New London, to Atlantic Yards. Directed by Jim Epstein.

Here's more on Battle for Brooklyn:

• Our "long form" review of Battle for Brooklyn (more for legal wonks).

• Our short form review, published in the Honolulu Star-Advertiser.

• Norman Oder's blog on the issues: Atlantic Yards Report. A must-follow.

• Our commentary on the final settlement in the case: Was It "All About The Money?" Hardly.

• The Eminent Domain One-Percenter (commentary on a profile of one of the developer's key people)

• We live-blogged the Atlantic Yards oral arguments in the New York Court of Appeals shown in the film. View the live blog archive here.

• The Court of Appeals' 6-1 decision upholding the taking: Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009).

• Media and commentary links on the Court of Appeals' decision. 

• Unfrozen Caveman Judges "Frightened And Confused" By Blight - our commentary on the  Court of Appeals' decision.

• The legal briefing in that case.

If you are in the area, please come to the Roxie and join us.

Redevelopment Developments

Here's what we're reading today:

• Blight barons of redevelopment plot comeback - Steven Greenhut (O.C. Register): "As of February, anyway, redevelopment is dead in California, the victim of an absurdly arrogant legal and political strategy pursued by redevelopment's chief defenders. This is wonderful news, made even better by the teeth-gnashing of public officials who have routinely abused their powers under redevelopment law. Cry me a river. But before I gloat too much, we need to remember that this victory already resembles one of those cheap horror movies where the Evil Thing has been vanquished, and all appears well, then its hand pokes out from the grave just as the credits begin."

• RDA Timeline: Hatchet to Fall Feb. 1 - via California Planning & Development Report: "State senators Alex Padilla and Luis Alejo have reportedly introduced Senate Bill 659, which would extend the deadline for agencies' dissolution for several months. Though it will be heard soon in the Senate Local Government Committee, its chances of success remain unclear."

• Supreme Court Upholds Elimination of Redevelopment in California - Now What? - from the California Eminent Domain Report - the archive of their presentation about the next possible steps.

• As redevelopment death sentence nears, protest volume rises - via the Santa Rosa Press Democrat: "Sonoma City Manager Linda Kelly said the loss of redevelopment money is on the same scale as the passage of Proposition 13, the landmark 1978 ballot initiative that slashed property tax rates in California."

California Redevelopment Alert: Free Webinar, Wednesday, Jan. 4, 2012

California followers: be sure to register and join in on Wednesday, January 4, 2012, starting at 2:00 p.m. PST as Rick Rayl, Brad Kuhn (California Eminent Domain Report) and their firm colleagues present a webinar, "Supreme Court Upholds Elimination of Redevelopment in California - Now What?"

This, of course, refers to last week's California Supreme Court decision upholding the state legislature's wipeout of the 400+ redevelopment agencies in California. Join in and find out "now what," and what happens next.

Details here.

Hawaii Premiere Of "Battle for Brooklyn" - Oscar-Contending Docfilm Of Atlantic Yards Eminent Domain Fight

Today was the Hawaii premiere of Battle For Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards case. We're introducing the film and conducting a question-and-answer session after each showing.

Screening information: Tuesday and Wednesday, January 3 and 4, at 1:00 p.m. and 7:30 p.m. each day at the Doris Duke Theater. More information (and ticket purchase) from the Academy of Arts web site here.

Today's two screenings were followed by lively questions from the audience. Here are links to the key posts on the case, in the event you want to find out more:

• Our short form review, published last week in the Honolulu Star-Advertiser.

• Our "long form" review (more for legal wonks).

• Norman Oder's blog on the issues: Atlantic Yards Report. A must-follow.

• Our commentary on the final settlement in the case: Was It "All About The Money?" Hardly.

• The Eminent Domain One-Percenter (commentary on a profile of one of the developer's key people)

• We live-blogged the Atlantic Yards oral arguments shown in the film in 2009. View the live blog archive here.

• The NY Court of Appeals' 6-1 decision upholding the taking: Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009).

• Media and commentary links on the Court of Appeals' decision. 

• Unfrozen Caveman Judges "Frightened And Confused" By Blight - our commentary on the New York Court of Appeals.

• The legal briefing in the NYCA appeal. 

There are still tickets left for the remaining two showings - come join us.

Movie Review: "Battle For Brooklyn" -- Lessons For Honolulu Rail From A Reluctant Activist

The Honolulu Star-Advertiser published my movie review of "Battle For Brooklyn," the documentary about the Atlantic Yards eminent domain fight, on the op-ed page. Check it out here or below. More importantly, if you are in Honolulu next week, come to one of the four screenings (details and link to ticket purchase below).

'Battle for Brooklyn' coming to rail project near you

How would you react if the government ordered you to give up your home or business so a developer could build an arena for his basketball team? Accept what money is offered, or dig in your heels and fight?

"Battle for Brooklyn," the Oscar-contending documentary premiering in Hawaii next week, chronicles one homeowner's fight against the city's taking of his property. But the film leaves open the question of whether he did the right thing, for the right reasons.

The film compresses seven years of events into 93 minutes, but here's a short summary: The NBA's New Jersey Nets want to move to Brooklyn, but there's no arena. So the city and the team's owner, a politically connected developer, design "Atlantic Yards," a 22-acre "affordable housing" project the crown jewel of which, not surprisingly, is the Nets' new arena.

Despite their claim the project will "start from scratch," the developer does not own 22 vacant acres in New York. Instead, homes and businesses located where he wants his arena will have to be destroyed. Owners who can't be convinced to sell will have their properties taken by eminent domain.

When these landowners object, their properties are declared legally "blighted" and thus ripe for forced acquisition, although nothing is truly blighted about them. What of their lives, their dreams, and their properties?

"Change is hard for everybody," the developer's public relations man smoothly counsels.

"Battle for Brooklyn" details a New York eminent domain controversy, but it is particularly relevant to Hawaii audiences. Honolulu has launched its largest-ever public works project, the $5.1 billion-plus rail development, which will envelop homes and businesses currently in the way.

This film is a crash course in how decisions to take property really get made, and how a single citizen can galvanize a community. Although the city and the developer pitch the project as fueled by "jobs, jobs, jobs" and affordable housing, neither materialize. The New York City Council hearing and redevelopment agency meeting suggest the neighborhood was not condemned for the public good, but because someone else had greater influence at City Hall. There is much here for Hawaii audiences to learn.

However, the film does not fall into the trap of becoming a political screed. Instead, it tells an emotional story that will appeal to even those unfamiliar with the machinations of eminent domain. Its heart is a character study of Daniel Goldstein, the property owner who reluctantly becomes the sole holdout among his 130 neighbors. He doesn't intend to become a community organizer, and is clearly not a professional activist. At his initial press conference, what at first appears to be the wind moving his notes is revealed as his hands shaking. He evolves from bewildered homeowner to sophisticated spokesman and property rights activist, and over the course of the film becomes more articulate, more committed, and increasingly angry with what he decries as a "failure of democracy."

Goldstein's battle does not come without a price, however. Late in the film, self-awareness flashes across his face as he admits his fight has not really been about protecting his modest condo, but more about his neighborhood's collective loss of control and the lack of respect shown by the city and the developers.

"This is not about this apartment. That would be insane," he admits.

Is it insanity to resist being dispossessed of your property, even when your struggle proves uphill, and may ultimately be hopeless? See "Battle for Brooklyn" and decide for yourself.

'BATTLE FOR BROOKLYN' VIEW DATES

"Battle For Brooklyn," directed by Michael Galinsky and Suki Hawley, will show on Jan. 3 and 4 at 1 and 7:30 p.m. at the Doris Duke Theatre, Honolulu Academy of Arts. A question-and-answer session will follow each showing. Purchase tickets here.

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Robert H. Thomas is a lawyer with Honolulu's Damon Key Leong Kupchak Hastert, where he practices eminent domain and land use law. An author and speaker on property law issues nationwide, he also chairs the Condemnation Law group at the American Bar Association's Section of State & Local Government Law.

Schadenfreude, Schlimmbesserung, And The California Supreme Court's Redevelopment Ruling

Today's 6-1 California Supreme Court opinion in California Redevelopment Association v. Matosantos, No. S194861 (Dec. 29, 2011) brings to mind two of our favorite loanwords: schadenfreude (deriving pleasure from the misfortune of others) and schlimmbesserung (to worsen by improvement).

The first because we can't say we're crying much about the takedown of California redevelopment agencies, which are collectively probably the largest abusers of eminent domain in the state, and the second because the track record of these agencies in actually accomplishing their stated goals of economic development is woefully sparse.

As we noted here, in Matosantos, the court concluded the state legislature could eliminate redevelopment agencies without violating the California Constitution. While this is a significant victory for property rights advocates, we won't be counting our chickens just yet. Here are a few things to keep in mind:

• The California Supreme Court did not drive a stake through the heart of redevelopment agencies. It did not conclude they are illegal and unconstitutional eminent domain abusers, or simply out of control. It simply held that the legislature has the power to dissolve them. What the legislature giveth, the legislature may taketh away.

• Which means that they could be be back: what the legislature taketh away, the legislature may giveth back, we assume. 

• Indeed, the machinations are already beginning. As the League of California Cities notes: "In the wake of today's ruling by the California Supreme Court upholding the elimination of redevelopment agencies, the California Redevelopment Association (CRA) and League of California Cities (League) vowed to work with state legislators immediately to develop legislation to revive redevelopment in order to protect local communities, job creation and our economy."

• The redevelopment agencies are already claiming that the ruling may affect police and fire services: "Many cities have been quietly using redevelopment funds for some city services for years and Kosmont [who advises many cities on redevelopment and budgetary issues] predicted that some will have to abolish their own police and fire departments, and pool services. Wow, it took even less time than we anticipated for that meme to start up.

• In other words, the redevelopment-industrial complex is well-entrenched in California, so don't expect it to go down without more of a fight in a passably-friendly forum, the California Legislature. Remember, the redevelopment agencies even have their own own lobbying group. We imagine that if the State Capitol were open, its halls would already be buzzing.

• Remember that this was not a principled fight by Governor Jerry Brown (v.2.0) and the legislature to abolish redevelopment agencies, but rather a huge money grab to help add additional ballast to California's listing economy. The redevelopment agenices are sitting on a huge chunk of money which the administration in Sacramento covets. It was pitched by one side as a lifeline for the troubled school system, and by the other as a theft of "their" money. But it's not either side's money, really, it's yours.

• Have the taxpayers and property owners of California come out on top? As we noted above, this was a fight between which arm of government gets to take private property and keep public money. Assuming that the legislature and Brown administration -- having now achieved the upper hand -- do not strike a deal with the redevelopment agencies and that they are truly gone, it doesn't mean that redevelopment won't occur.

So while we celebrate today's victory, we're still holding our breath.

California Redevelopment Round Up

As we noted earlier today ("Cal Supreme Court "Redevelops" Redevelopment Agencies"), the California Supreme Court has dealt a stunning blow to the redevelopment-industrial compex in California. Here's more from media outlets and legal commentators:

• Governor Jerry Brown issues his shortest press release, ever: "Today’s ruling by the California Supreme Court validates a key component of the state budget and guarantees more than a billion dollars of ongoing funding for schools and public safety." No call for "excessive celebration" for that one. But you know he's doing an end-zone dance right about now.

• Ding, Dong, The Witch Is Dead! California Supreme Court Approves Legislative Abolition of Redevelopment Agencies - Did you really need us to tell you that is Gideon Kanner's take on the situation?

• Supreme Court Upholds Law Eliminating California's Revelopment Agencies - Rick Rayl and Brad Kuhn weigh in: "The bottom line: the decision ends redevelopment in California." Calendar this: Rick and Brad will be hosting a free webinar on Wednesday, January 4, 2012 at 2:00 p.m. to discuss the opinion, its implications, and what happens from here. Follow California Eminent Domain Report for details. 

• State wins right to abollish redevelopment agencies - via the San Francisco Chronicle: "The California Supreme Court dealt a death blow to the state's decades-old redevelopment program, ruling today that state lawmakers did have the authority to eliminate the economic development program, but striking down a law that would have allowed the agencies to exist in a smaller form."

• California Supreme Court Upholds Abolition of Local Redevelopment Agencies - lawprof Richard Frank at Legal Planet blog: "What happens now? Local government mavens and defenders of redevelopment policy will no doubt bemoan the looming elimination of California redevelopment agencies. I’m slightly more sanguine about the future: California land use policy, practice and politics have proven remarkably resilient over the years. My hunch is that developers, planners, local government officials and other stakeholders will be creative enough to find other strategies to promote, finance and build worthwhile projects to restore and revitalize California’s urban neighborhoods."

• The Death of Redevelopment - from the Voice of San Diego: "The decision comes with incredibly wide-ranging impacts on hot-button issues across San Diego....The program, established to fix up downtrodden neighborhoods, is widely credited with downtown's famous rebirth. At the same time, it's been host to local scandals and in some cases strayed from the original intent, becoming an easy pot of money for politicians to tap for big projects without having to ask for voter approval." (with links to other reports).

• The League of California Cities doesn't like the decision, but "vowed to work with state legislators immediately to develop legislation to revive redevelopment in order to protect local communities, job creation and our economy." 

• State Supreme Court upholds abolition of redevelopment agencies (L.A. Times) - "The ruling was a major blow to redevelopment agencies, authorized by law since 1945  and responsible for the creation of such neighborhoods as Old Pasadena and  San Diego's Gaslamp Quarter, and a victory for state officials grappling with budget shortfalls."

• Redevelopment agencies: "the sky is falling!" See here, here, and here.

• "I'm not dead..I'm getting better!" - San Leandro Projects Should Survive Adverse Redevelopment Ruling (San Leandro Patch).

• Robert Moses' Dream Dies: CA Redevelopment Ruling Strikes Blow to Idea of Gov't As Prime Mover, or Occupy Redevelopment - via BlawgSD: "Conservatives and libertarians can rejoice in the fact that redevelopment in California can now be dictated by the free market -- if there is money to be made in a project they can buy and build it themselves if they want. We know how well banks are lending money for such construction projects these days. The end of California redevelopment as we know it also could have a friend in the Occupy movement as well, since big developer-types will likely not be receiving hoards of government redevelopment money to build those Best Buys and Targets anymore."

 

Cal Supreme Court "Redevelops" Redevelopment Agencies

In what can only be considered a major takedown of the redevelopment game, the California Supreme Court in a 6-1 opinion (Chief Justice Cantil-Sakauye concurring and dissenting), held that the state legislature could eliminate redevelopment agencies without violating the California Constitution. What the lege giveth, the lege may taketh away. It upheld the statute dissolving redevelopment agencies. California Redevelopment Association v. Matosantos, No. S194861 (Dec. 29, 2011).

In an interesting twist, however, the court invalidated the companion statute by which the legislature allowed the redevelopment agencies to continue to exist if they paid into a state fund benefitting schools and special districts. End result: snake eyes for the redevelopement agencies.

We summarize our conclusions concerning the constitutional landscape. The Legislature, pursuant to its plenary power to establish or dissolve local agencies and subdivisions as it sees fit, may, but need not, authorize redevelopment agencies. (Cal. Const., art. IV, § 1.) If it does choose to authorize such agencies, it may, but need not, authorize their receipt of property tax increment. (Id., art. XVI, § 16.) However, if it authorizes such agencies and, moreover, authorizes their receipt of tax increment, it may not thereafter require that such allocated tax increment be remitted for the benefit of schools or other local agencies. (Id., art. XIII, § 25.5, subd. (a)(7)(A).) Assembly Bill 1X 26 respects these narrow limits on the Legislature‘s power; Assembly Bill 1X 27 does not.

Slip op. at 49-50. Because several critical statutory deadlines passed while the court considered the case, the court "reformed" the statutes and delayed implementation of the dissolution and wind up by extending certain deadlines for a four months.

This certainly appears to be a major blow to California redevelopment agencies, which went "all in" by challenging both the legislature's dismantling of their existence, and the opt-out legislation. They gambled on the court invalidating both, but ended up with the worst combination: upholding of the repeal statute, and invalidation of the saving statute.

Will it be the death blow? Stay tuned. One suspects now that the Governor and the Legislature have the gained the upper hand legally, something might be "worked out." There's too much bureaucracy at stake for the players to simply let the redevelopment game slip away quietly into the night.

More here from the California Eminent Domain report.

California Redevelopment Association v. Matosantos, No. S194861 (Cal. Dec. 27, 2011)

ALI-ABA Annual Eminent Domain Conference, January 26-28, 2012, San Diego

Get ready, it's that time of year again: the annual eminent domain law conferences by the American Law Institute-American Bar Association, this year to be held in San Diego from January 26-28, 2012.

Here's the description of Eminent Domain and Land Valuation Litigation, the premiere program on condemnation law and related topics:

The power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice. Learn what’s new in the cutting-edge areas of eminent domain law and how the practice in this field continues to evolve.

This popular and long running advanced course of study kicks off with a comprehensive update on eminent domain case law and legislation by a preeminent practitioner.

Each morning, the course focuses on hot issues and topics that affect practitioners today.

On Thursday and Friday afternoon, a dual track system addresses important substantive and practice topics in a series of breakout sessions. Registrants can learn about the key issues in substantive takings law from nationally recognized and experienced professionals. On the practice side, registrants can choose from another array of sessions chock full of practice pointers.

The course brings all the right participants together — lawyers, appraisers, condemning agencies, right-of-way professionals, and many others — to share valuable experiences and engage in healthy debate on these cutting-edge issues.

Networking opportunities are scheduled throughout the program, with breakfasts, networking breaks, a reception on Thursday afternoon, and social activities in the evenings arranged by a special Hospitality Committee. Come and meet with colleagues from around the nation, exchange ideas, enjoy the fellowship, and collect more than 16 hours of CLE credits.

This course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain. This unique format allows practitioners who are new in the field of eminent domain to network with many of the nation's most experienced condemnation lawyers, and to benefit from many of those same lawyers serving as their faculty. Special Offer: Attend Eminent Domain and Land Valuation Litigation and bring an associate to Condemnation 101 for 50% off.  ADD TO CART

We're on the faculty ("The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases"with Professor David Callies), so if you attend either course, please stop by and say hi.

Is "Wukan" Chinese For "Kelo?"

China has been on our mind lately. Maybe it's our recent attendance at the Brigham-Kanner property rights conference held in Beijing in October. Maybe it's last week's talk to our law firm by an old friend on lessons that can be learned from China's move from communism to a market economy.

Whatever is causing China to be on our radar lately, here's the latest big story, on Wukan, the village presently under seige after a mass protest objecting to the sale of village land for real estate development. The above video is not in English, but it doesn't take a translator to get the drift. The print media is also reporting on the situation:

• Inside Wukan: the Chinese village that fought back (The Telegraph (UK))

• China village resists officials' land confiscations (LA Times)

• Small Chinese village revolts; Crackdown near (CBS)

Gideon Kanner has also been following the story (start here).

These type of protests are not uncommon in China (apparently, there are 180,000 "mass incidents" per year there), so it appears unlikely that the Wukan protest will be dealt with by negotiation -- if the government negotiates with Wukan, it will have to do the same elsewhere. We're just hoping that another Tienanmen is not in the works.  

Exclusive Hawaii Premiere: Battle for Brooklyn, Academy Award Contending Documentary About Eminent Domain

A reminder: on January 3 and 4, 2012, at 1:00 and 7:30 p.m. each day, the Honolulu Academy of Arts Doris Duke Theater is presenting the Hawaii premiere of Battle For Brooklyn, the Academy Award-contending documentary about the Atlantic Yards eminent domain fight. We are lucky enough to have the exclusive Hawaii showing of this important, informative, and entertaining film. More information (and ticket purchase) from the Academy of Arts web site here.

There will be Q & A sessions following each screening with the filmmakers and (perhaps) a special guest, TBA.

The film has received fantastic reviews (a New York Times critics' pick), and recently made the short list for films in the running for the Best Documentary feature Academy Award. We reviewed the film here, and highly recommend it.

Battle For Brooklyn is an especially timely film for Hawaii audiences: it chronicles one homeowner's years-long fight to save his property from being taken by eminent domain so the land could be used for a new arena for the NBA's New Jersey Nets, and Honolulu is in the opening phases of the $5 billion rail project, the most expensive public works project in its history. The rail project will require the taking of hundreds of homes and businesses, and Battle For Brooklyn's inside look at the politics of eminent domain is an eye-opener about how the process of taking private property really works. 

Come join us!

Book Report: Eminent Domain - A Handbook of Condemnation Law

To those who were able to join us this evening for the celebration of the publication of Eminent Domain - A Handbook of Condemnation Law, thank you.

The University of Hawaii Law School sponsored the reception, and it was good to see so many colleagues and friends in attendance. U.H. put the event together since Professor David Callies was one of the book's editors, and six U.H. alums contributed chapters.

I was privileged to author two chapters (Prelitigation Process and Flooding & Erosion), and my Damon Key colleagues Mark Murakami and Christi-Anne Kudo Chock co-authored the chapter Damages Resulting from a Taking: An Overview.   

A complete Table of Contents is available here. This book is an overview of the law from folks who have been practicing in that area for a long, long time. It is intended as a "deskbook" -- a quick and handy reference guide for those who do not regularly practice condemnation law, a refresher for the more experienced eminent domain lawyer, and a "nutshell" for those who want to understand the fundamentals without having to delve into their copies of Nichols.

The book is available for purchase from the ABA here.  The price is $89.95 with the price of $69.95 for members of the Section of State and Local Government Law (discounts on books and CLE: another good reason to join the Section). There are also discounts for purchase of multiple copies.

Chapter authors Christi-Anne H. Kudo Chock, me, editor Professor David Callies,
authors Kamaile Nichols and Cal Chipchase
not pictured: authors Mark M. Murakami and Christian Adams
(Mark is on active duty with the Coast Guard in D.C., so could not make it)

Dean Avi Soifer offered introductory remarks, including a limerick and a haiku.

Professor Callies jokingly threatened to read from the book. Instead, he
recognized the authors, noted that Mark was "serving his country and
defending us," and thanked his co-editors, Bill Scheiderich and
Cynthia Fraser. Note the tiki torch in the background, visual proof
that this event took place in balmy Honolulu.

Links From Today's Webinar "Eminent Domain: Redevelopment Challenges for Local Government"

For those who tuned in to today's webinar Eminent Domain: Redevelopment Challenges for Local Government, here are the cases I spoke about during my session:

• Amy Lavine's law review article with the backstory of Berman v. Parker - Urban Renewal and the Story of Berman v. Parker, 42 Urban Lawyer 423 (2010) (article posted here).

• Franco v. National Capital Revitalization Corp., 930 A.2d 160 (D.C. 2007) (pretextual takings under Kelo).

• County of Hawaii v. C&J Coupe Family Ltd. P'ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a "classic" use).

• County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (2010) (the above case after remand - affirming the legal test but finding that the property owner did not prove pretext, ), cert. denied (2011).

• Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008) (pleading pretext under the Iqbal/Twombly standard), cert. denied (2008).

• Goldstein v. New York State Urban Dev. Corp., 921 N.E.2d 164 (N.Y. 2008) (the other Atlantic Yards case; the NY Court of Appeals treats -- or, more accurately, doesn't treat -- blight designations under state law).

• 49 Wb, LLC v. Village of Haverstraw, 44 A.D.3d 226 (2007) ("Courts are required to be more than 'rubber stamps' in determining whether a taking furthers a public use.").

• Kaur v. New York State Urban Dev. Corp., 15 N.Y.3d 235, --- N.E.2d ---- (2010) (New York courts still cannot figure out "blight"), cert. denied sub nom (2011)

• Uptown Holdings, LLC v. City of New York, No. 2882 (App. Div. Oct. 12, 2010) ("Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings in [Goldstein and Kaur] have made plain that there is no longer any judicial oversight of eminent domain proceedings.").

• Battle For Brooklyn, the Oscar-contending documentary about the Atlantic Yards fight. 

• Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901 (April 19, 2011) (under Texas Constitution, courts make an actual and factual inquiry into the company's claim that the pipeline would be available for use by the public).

• Eminent Domain - A Handbook of Condemnation Law (ABA 2011) (save yourself the entire Nichols set - here's a deskbook overview).

• Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 924 A.2d 447 (N.J. 2007) ("blight" means more than "not fully productive"). 

• Middletown Township v. Lands of Stone, 939 A.2d. 331 (Pa. 2007) (takings outside of a comprehensive plan).

"Battle For Brooklyn" - Oscar Candidate Eminent Domain Doc Coming To Honolulu

Mark your calendars: on Tuesday, January 3, and Wednesday, January 4, 2012, at 7:30pm and 9:30pm, the docfilm Battle for Brooklyn will make its exclusive Hawaii screening at the Doris Duke Theater at the Honolulu Academy of Arts. There will be Q & A sessions after the showings.

This is an especially timely film for Hawaii audiences -- it chronicles one homeowner's years-long fight to save his condo from being taken by eminent domain so the land could be used for a new arena for the NBA's New Jersey Nets, and Honolulu is in the opening phases of the $5 billion rail project, the most expensive public works project in its history. The rail project will require the taking of hundreds of homes and businesses, and Battle For Brooklyn's inside look at the politics of eminent domain is an eye-opener about how the process of taking private property really works.  

We reviewed Battle for Brooklyn after it made its public debut a few months ago (the filmmakers presented a rough cut preview at the annual ALI-ABA eminent domain program), and we recommended it. We even sat down for a few minutes with director Michael Galinsky for a short interview. Recently, it made the short list of documentaries being considered for the Academy Award.

Battle For Brooklyn made its premiere in Brooklyn, naturally, and it has been showing in the New York area on an extended run. Unfortunately, there's only one print of the final film because prints are very expensive, about $7,500 apiece, so it has not been more widely released. But luckily, the filmmakers have graciously agreed to bring it to our fair shores for a (very) limited run.

The film has received excellent reviews. Our colleagues at the California Eminent Domain Report agree ("If you're in the right of way industry, this is a must see. Or, if you simply like tales of David versus Goliath, go get yourself a movie ticket."), as does the LA Times ("a deft look at a reluctant crusader and how financial sway and political override can so effectively trump the power of the average citizen"), the indieWIRE blog ("it’s inspiring to see Americans put a lie to the suggestion that they are apathetic, self-obsessed, greedy, fat, and stupid"), an LA blogger ("This weekend a movie opens in Los Angeles that everyone who cares about neighborhoods should see ... We may be on opposite sides of America, but the battle for Brooklyn is our fight in Los Angeles, too."), and Yahoo Movies ("The timing is exceedingly relevant to Los Angelenos as they listen to the on-going discussion about building a NFL stadium in downtown Los Angeles."). Here are reader reviews from the NY Times.

More here (a recent interview with Mr. Galinsky).

Stay tuned for more information as the date draws near.

T-Day Door Prize. Second Prize Is A Set Of Steak Knives.

This is a post for those who decided they wanted to visit a law blog today instead of (a) filling their bellies with the usual Thanksgiving fare; (b) watching football on TV; (c) gearing up for the insanity of the day-after shopping; or (d) pretty much anything else.

Seriously, what are you doing reading a law blog this day?

Anyhow, here's the deal if you are: On Thursday, December 1, 2011 at 1:00pm-2:30pm EST (10:00am-11:30am PST, 8:00am - 9:30am HST) we'll be presenting the on-line webinar "Eminent Domain: Redevelopment Challenges for Local Governnment - Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use" (click the link for more information), and if you'd like to join us with the $250 registration fee waived (yes: free, gratis, no charge, free-ninety-free), and you are one of the first three people to email me, I will sign you up. For free.

This deal closes when either (a) three people RSVP by emailing me, or (b) at noon Hawaii Time on Friday, November 25, 2011, whichever comes first.

If you aren't one of the first three, I can still get you 50% off the reg fees. Still a great deal.

This webinar is national in scope, and we've got experts from around the country speaking on issues that we're all interested in (see the program description and agenda at the link above): joining me are colleagues Anthony Della Pelle (McKirdy & Riskin - New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose - Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman - California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert - Hawaii).

And if you miss out? As Alec Baldwin said, "second prize is a set of steak knives."

Friday Round Up

We've been kind of busy in the last few days with a couple of appellate briefs, so haven't had a lot of time to post up the latest cases and articles of interest. But here's what we are reading today, in between brief writing:

• Hawaii Supreme Court Nominees Will Be Public - Courthouse News Services writes about the case in which we represent the Star-Advertiser in its case to compel the governor to publicly disclose the lists of judicial nominees he receives from the Judicial Selection Commission. More on the case here. The Reporters Committee for Freedom of the Press also reported on the story here. 

• Beyond "NIMBY" - a post on Legal Planet, a blog produced by enviro lawprofs, advocates that we abandon the term NIMBY. I like "I GOT MINE."

• Reason hit & run posts John Paul Stevens: Kelo Was No Big Deal. Then why you keep bringing it up, Your Honor?  Gideon Kanner responds. Come on, you know you want to click that link. 

• From Patty Salkin's Law of the Land Blog, the latest in the vested rights issue: Oregon Supreme Court Examines Vested Rights and Holds Bad Faith Cannot be Considered in Measure 49 Calculation.

• Via Julie Tappendorf's Municipal Minute blog: Sewer Tax Discrimination Case to be Decided by Supreme Court. This is a case to follow, and we will be posting the cert petition in that case shortly.

Brigham-Kanner Conference: The Video

In case you missed out on the 8th Annual Brigham-Kanner Property Rights Conference, held last month in Beijing, check out this video (here is the page with links to all of our posts related to the conference).

The Conference was a resounding success, and featured presentations and papers by the creme de la creme of the property academy and practicing bar in the U.S. and China, a truly all-star line up.

Cal Supremes: Lender's Withdrawal Of Condemnation Deposit Does Not Waive Property Owner's Defenses

This just in: In Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011), the California Supreme Court held:

Under California's "quick-take" eminent domain procedure, a public entity filing a condemnation action may seek immediate possession of the condemned property upon depositing with the court the probable compensation for the property. (Mt. San Jacinto Community College Dist. v. Superior Court (2007) 40 Cal.4th 648, 653 (Mt. San Jacinto); see also Code Civ. Proc., §§ 1255.010, 1255.410.) Any defendant in the condemnation action — which includes anyone the public entity knows to have or claim an interest in the property (§ 1250.220, subd. (a)) — may apply to the court to withdraw all or any portion of the deposit (§ 1255.210). Section 1255.260 provides that, "[i]f any portion" of the deposit "is withdrawn, the receipt of any such money shall constitute a waiver by operation of law of all claims and defenses in favor of the persons receiving such payment except a claim for greater compensation." The Court of Appeal in this case held that, under this statute, if a lender holding a lien on condemned property applies to withdraw a portion of the deposit, and the property owner does not object to the application, the lender’s withdrawal of a portion of the deposit constitutes a waiver of the property owner’s claims and defenses, except a claim for greater compensation. We find that the Court of Appeal‘s conclusion is inconsistent with the relevant statutory language and framework. We therefore reverse the Court of Appeal's judgment.

Slip op. at 1-2 (footnote omitted).

We'll review the opinion and post more when we get a chance. But this looks about right.

Los Angeles County Metro. Trans. Auth. v. Alameda Produce Market, LLC, No. S188128 (Nov. 14, 2011)

Monday Reading

Been tied up finalizing one brief and drafting another, so haven't had time to post, but here's what we're reading today:

• Via the Land Use Law Prof blog comes notice of Professor Robert Ellickson's latest article, on The Costs of Complex Land Titles: Two Examples from China. This is the paper he presented at the recent Brigham-Kanner Property Rights Conference in Beijing. His presentation and paper generated a lot of reaction from the other scholars in attendance, and was one of the high points of the conference.

• Priest Lake couple’s land dispute with EPA going to high court - from The Spokesman-Review (Idaho), some background on the Sackett v. EPA case. With photos and maps, too. 

• A preview of the upcoming California Supreme Court oral arguments (Nov. 10, 2011) on the future of redevelopment in the Golden State, from the California Eminent Domain Report.

• More from California, this time from Gideon Kanner, on the "high speed rail" issue.

Epstein On Kelo's Rational Basis Test: "You think two plus two equals five, and I don't know how to add."

Whenever a judge turns to rational-basis analysis, he's basically saying, 'You think two plus two equals five, and I don't know how to add.' -

Professor Richard Epstein, at an interesting debate sponsored earlier this evening by the Columbia Law School Federalist Society. Professor Epstein and Chief Judge Alex Kozinski (9th Cir.) debated the merits of Kelo v. City of New London (2005). Professor Epstein attacked Kelo and Chief Judge Kozinski defended the decision.

Via Above the Law and Dwight Merriam.

The Eminent Domain One-Percenter

We're not all that down with the "occupy movement." It seems too unfocused, too anti-competition, too anti-success for us to get on board with the idea that equality of result is what the American dream and our system are based on.

But things like this profile of MaryAnne Gilmartin, executive vice president of commercial and residential development at Forest City Ratner Companies in this month's Westchester magazine, make us want to go down to Zuccotti Park and set up a tent.

An "innovative and tenacious builder" who has "left her mark" on the New York skyline, "she’s helping to shape Atlantic Yards, a complex of residential and commercial buildings that will also be the new home of the New Jersey Nets."

The profile details how she got her start, interning and then working for the New York City Economic Development Corporation for seven years before sliding over to Forest City, where her first grand project was the New York Times building, which like Atlantic Yards needed the government's power of eminent domain to make it happen. Are you starting to see the pattern? 

"In my business, you need to be comfortable with chaos, with staring at the Rubik’s cube and figuring out how all the pieces should come together." Of course, in New York City almost no development takes place on a blank slate, especially things when someone is trying to "leave their mark," so much of the Cube-twisting effort is put into acquiring the eminent domain "piece" to compel property owners to give up their their homes and businesses by government force when the free market cannot. Learn how the game is played while at the "public" agency, then move to the other side (and we use the term "other side" loosely) and work the system by capturing the government's power of eminent domain. The New York courts, after all, won't stop you. See Rosenthal & Rosenthal, Inc. v. New York State Urban Dev. Corp., 771 F.2d 44 (2d Cir. 1985) ("However, the condemnation of appellants' building to make way for the redevelopment [for the New York Times] of the blighted area is a classic example of a taking for a public use or purpose within the law of eminent domain. It makes no difference that the property will be transferred to private developers, for the power of eminent domain is merely the means to the end.").

The profile also deals with the Atlantic Yards controversy, which to the courts looked no different than Times Square, and ended up much the same way for the property owners, and the profile gives equal time to the project's opponents:

Then why all the fuss? Atlantic Yards has been the subject of several lawsuits and numerous protests. A journalist, Norman Oder, maintains a blog, atlanticyardsreport.com, that chronicles Forest City Ratner’s every move on the project. Another blog run by the anti-Yards group Develop Don’t Destroy Brooklyn (dddb.net) is highly critical. There’s even a movie, Battle for Brooklyn, about locals taking a stand. "The issue for many of these people is the way that some of the land was assembled through eminent domain," Gilmartin says. "Some other people think it will make the area’s population too dense. And others don’t want a stadium in their backyard. I won’t speak in detail for the opposition."

The opposition can speak for itself. "Forest City’s successes are inextricably related to the acquisition of public subsidies," Norman Oder says. "Their successes are also related to major spending on lobbying, and substantial political and charitable contributions, as well as hardball tactics." Oder also points out how initial grand promises for the Yard have been scaled back (architect Frank Gehry is no longer involved) and how many of the promised union construction jobs didn’t pan out. He cries foul on slick money-saving moves he feels Ratner made, such as convincing authorities to condemn certain land parcels in stages rather than at once.

...

Gilmartin admits she won’t be buying a ticket to Battle for Brooklyn anytime soon. "It’s always a little dicey to do what I do so close to home," she says.

While the opponents and property owners may cry foul, the law currently allows those with influence and experience to work the system that way, and at least for the time being, neither the New York Court of Appeals nor the U.S. Supreme Court gives a hoot. If those folks down in the park and occupying the other public spaces across the country want to start getting real, this seems as good a place as any. 

Yosemite Seminar Summary - Regulatory Takings: Looking Back And Looking Forward

"Yosemite," according to California Place Names, Erwin Gudde's seminal work on the origins of (surprise) California place names, means "they are killers." It was "[e]vidently a name given to the Indians of the valley by those outside it."

I raise this historical tidbit because I must admit to feeling a little like "those outside it" when I was invited to speak about regulatory takings at the California State Bar's Environmental Law Conference at Yosemite. I figured as a conference devoted to environmental law, it was a going to be a decidedly skeptical audience, given my advocacy for property owners and property rights. I accepted the invitation nonetheless, heartened that this conference wasn't going to be an echo chamber and that they were at least open to hearing competing ideas.

It turns out that my prediction about "they are killers" was not accurate -- the audience, while not exactly sympathetic to my viewpoints, was was certainly open and friendly and welcoming while I spoke about "Regulatory Takings: Looking Back and Looking Forward" with U.C. Berkeley law professor Joseph Sax and Deputy California Attorney General Daniel L. Siegel. We focused on seminal regulatory takings cases from the recent past, and each made predictions of what might be next. "The panelists, who have been involved in several of the most significant takings cases since even before the founding of the annual Yosemite Environmental Law Conference twenty years ago, will highlight key decisions, offer their views on the evolution of takings law, and discuss cutting-edge issues raised by more recent court decisions."

Sidebar: if you were not able to attend, the audio recording is now available for purchase for a very modest price ($34 gets you the two CD set and the written materials, and includes the 1.5 hours of MCLE credit) from Versa Tape. Go here to order (if that link does not work, go here and enter "11ELC-15AB" in the search box). I've posted some short sound bytes of each presentation to give you a flavor of the session.

To start us off, Clem Shute provided us with a quick history of regulatory takings law over the last 40-plus years since Penn Central. He also moderated the panel discussion. Listen to his introduction here:

I was up next. I focused on five takings issues that I predict will be important to watch: (1) the definition of "property" (including the judicial takings question); (2) how courts define "regulatory taking," and whether those cases holding that a government action is not a taking simply because the government is not purporting to exercise its eminent domain power will survive close scrutiny; (3) the growing body of state court decisions on takings under state constitutions; (4) what to do with the Penn Central three-part standard now that the Court has reaffirmed is as the default test; and (5) will the Court abandon or modify the Williamson County ripeness test, as four Justices suggested in the San Remo Hotel case?

What it looked like from where I sat.

I also mentioned one "non takings" issue that is worth watching: whether substantive due process will become more important now that the Supreme Court has removed the "substantially advance" test from takings analysis, and moved it over to due process (more detail on this issue here). In this area, Justice Kennedy is the one to watch, as his concurring opinions in Kelo and Lingle both telegraph his notion that on questions of the legitimacy of government actions that impact property, the due process clause is more critical than the takings clause. Links to all of the cases I discussed and that are referenced in my written materials are posted here.

Next, Dan Siegel noted the sharp decline in the number of regulatory takings/inverse condemnation cases heard by the Supreme Court since the mid-1980's.

Dan Siegel (Deputy California Attorney General)

Dan also noted areas he believes are still unresolved: (1) whether the nexus and rough proportionality standards of Nollan and Dolan are limited to exactions of real property, an issue the subject of a pending cert petititon; (2) whether water use restrictions are analyzed as physical or regulatory takings (see the Casitas decision from the Federal Circuit for an example of a court treating it as a physical take); (3) Williamson County's future; (4) is there such a thing as a "judicial taking;" and (5) the parcel-as-a-whole question. On whether these issues are open, I agree wholeheartedly with Dan; our differences are on how the Court should resolve them.

Professor Sax ended the session by providing his scholarly view. He rightly suggested that the law of regulatory takings has largely escaped clear doctrinal development. Thus, it appears that decisions in which the Court has found a taking are driven more by the apparent unfairness of the situation than by the application of clear or consistent rules. See, e.g., the government's repeated rejections of development proposals while informing the property owner that it might approve its application if only it returned with a more modest proposal in the Del Monte Dunes case.

Professor Joseph Sax sums it all up.

Professor Sax concluded that the Court will be reluctant in the next few years to take up cases in order to articulate "large general principles or major doctrinal theories of property," but that if a situation appears to involve "serious over-reaching by regulators (especially land use regulators)," the Court will step in. He also agreed with Dan and I that the judicial takings issue is an open question, as are issues involving the boundary between public and private property at the shoreline. Of course, this being Professor Sax, the public trust issue and the question of what are "background principles" of state property law were never far from our minds.

In sum, it was an enjoyable and informative session (as was the remainder of the presentations at the Conference).I appreciate the invitation to speak, as well as the warm welcome I received.

The written materials were not distributed on paper, but
on a USB drive. With a faux wood casing, no less. Very green.
There was a lot of quality swag at the conference: backpacks,
water bottles, flashlights, and more post-its and pens
than you could possibly take.

This photo has nothing to do with the conference, except that we
passed by this sign on the drive out of the mountains via the National
Park. Call it "bad marketing," since I am not going anywhere near
any body of water labeled "Mosquito Creek."

Wednesday Round-Up

What we're reading today:

• Our ABA State and Local Government Law Section colleague Robert Foster has been confirmed (is that the correct terminology in Mass?) as an Associate Justice of the Massachusetts Land Court. 

• From another SLG colleague, Amy Lavine, comes this interesting post on her Ferae Naturae blog, about stream access laws. She focuses on NY and Montana, but there is good information in her post for those located elsewhere. 

• From the NY Times comes "Eminent Domain Fight Has a Canadian Twist," about a Canadian pipeline company's efforts to take land in the United States. Will the company's status as a Canadian entity be critical?  Calling Tim Hortons...

• From the Abbott & Kindermann Land Use Law Blog: "Court Recognizes That A Property Owner May Be Able To Wield A 'Sword' To Establish A Right To Maintain An Encroachment On Neighboring Property."

• Check out the comments (especially) at Legal Planet's post on "Time to Put Nino Out to Pasture," about Justice Scalia's statement that Kelo was as big a boner as Dred Scott.

• The Marzulla Law Firm writes "Ninth Circuit Affirms Validity of Fifth Amendment Claim In Guam Takings Case." Check it out. Some good pointers about the relationship between the U.S. District Courts and the Court of Federal Claims. 

• The Farm Futures blog writes about the Sackett v. EPA case.

Brigham-Kanner Property Rights Conference - "Mere Mortal" Professor Richard Epstein on "Going Red on Property Rights"

Law professor Richard Epstein was a featured speaker (and past Brigham-Kanner prize winner) at the recent B-K Property Rights Conference in Beijing. He's summarized his thoughts and insights in "Going Red on Property Rights," posted at the Hoover Institute's site. He writes:

Earlier this month, I attended a Chinese-American Conference in Beijing on property rights co-sponsored by the William and Mary Law School and the Tsinghua University Law School.  One purpose of the conference was to award in absentia the Brigham-Kanner Prize to retired Justice Sandra Day O’Connor for her contributions to understanding the law of property. The intensive two-day discussions on property rights were open, animated, and cordial. They also revealed deep ironies in both the Chinese and American approaches to property rights.

The entire piece is well worth reading. All of our posts on the B-K Conference are collected here. I'm writing my wrap-up of the Conference and will post it shortly.

In the meantime, I offer this little story.

A few of us are walking the 15 minutes from the hotel to the moot courtroom at the Tsinghua Law School, through the university campus. We cross the lightly traveled road, and most of us step up onto the opposite sidewalk. Professor Epstein, engrossed in conversation with another lawprof, doesn’t notice they are walking down the middle of the road, blocking traffic.

A few seconds later, a car comes up behind them.

In Beijing, pedestrians decidedly do not have the right of way.

"Get out of the road!" we call out.

Epstein slowly turns around, looks at the car, looks at us, and says with a smile, "sidewalks are for mere mortals."

(But he does get out of the road.)

More On Scalia, J.'s, Assertion That Kelo = Dred Scott

Earlier, we posted Justice Scalia's assertion at a recent conference that Kelo ranked among the top all-time blown calls by the Supreme Court. While the Kelo majority opinion is decidedly foul, does it really sink to the level of Dred Scott, the opinion in which the Court concluded that Africans could never be U.S. citizens?

Well, one writer doesn't think so. In the Atlantic, Garrett Epps writes "Can Eminent Domain Be as Bad as Slavery?" While there is much we agree with in Mr. Epps' piece, especially his conclusion (we're sorry, eminent domain abuse, as bad as it is, is not quite as bad as concluding that a class of people are simply incapable of being citizens because they are somehow lesser humans -- that's just repugnant), we don't buy in wholly to his reasoning.

He outlines three reasons why Justice Scalia's dislike of Kelo is contrary to -- or at least inconsistent with -- the jurisprudence already staked out by Justice Scalia in other cases; you know, things like "state's rights," "activist" judges, and so forth. First, he argues that Scalia prefers the democratic process to courts, and that the issue in Kelo -- whether economic development takings can never be public uses -- was in fact resolved by democratic action in state and local legislatures (and courts) as a reaction to Kelo. Second, he argued that Scalia believes in "state's rights" and that at its heart, the majority opinion in Kelo allowed the states broad latitude in how to exercise eminent domain power. Finally, he argues that Scalia objects to "activist" judges, and the Kelo majority essentially said that federal judges should take a "hands-off" approach to eminent domain.

On accusations that Justice Scalia is internally inconsistent, our sense is that he is like honey badger: he just don't care. So far be it from us to try and defend him. But here are some thoughts about Kelo to add to the above.

First, that state and local legislatures responded to the Kelo majority opinion by backing off economic development and other abusive takings hardly seems like an endorsement of the soundness of Kelo's rationale. That's sort of like saying Dred Scott was a good decision because the Reconstruction Amendments were the end result. The people via their legislatures simply picked up the ball the Supreme Court dropped. Indeed, the widespread popular revulsion of Kelo is a strong indicator the majority got it wrong.

Second, we thought the whole purpose of the Bill of Rights (and the Fourteenth Amendment which incorporates these rights against state action) is to make certain rights very difficult for the government to intrude upon. Why it's a good thing that property rights are subject to the vicissitudes of the political process -- especially as it plays out on the local level and in redevelopment schemes, where it seems that money and influence carry the day -- when other rights such as speech are not, is not at all clear to us. In one sense, the majority opinion in Kelo was beyond predicatable: those of us who filed amicus briefs knew that the biggest hurdles to overcome were (1) the Berman and Midkiff cases, which together virtually abdicated the judicial role in determining a taking's "public use," and (2) the "case by case" fetish of the critical vote, Justice Kennedy, who would not likely endorse the bright line rule advocated by Ms. Kelo. It turned out our fears were justified, but just because Berman had been around for half a century didn't make it any less wrong, and it did seem that certain types of condemnations such as economic development takings were so rife with problems and the potential for abuse that the Court could say that using it as a rationale was not constitutionally tolerable.

And finally, why it is perfectly acceptable for judges to be "activist" when it comes to protecting speech, religion, and other Bill of Rights rights, but when it comes to property rights they get all squeamish and suddenly deem themselves incompetent to review things like blight or a redevelopment plan? After all, when applying environmental laws such as NEPA, HEPA, and CEQA, these same judges review development proposals and regularly find them inadequate. Why there is a difference is beyond us.

Brad Kuhn, our colleague over at the California Eminent Domain Report also comments on Scalia's remarks here.

New Article - Recent Developments in Condemnation Law: Public Use, Private Property

The Urban Lawyer, the law review produced by the ABA Section of State & Local Goverment Law has published my article Recent Developments in Condemnation Law: Public Use, Private Property, 43 Urban Lawyer 877 (2011).

The article "summarizes recent cases in which the issue was the power of condemnors to take property, including challenges under the Public Use Clause, as well as other challenges on the power to take" (from the Introduction).

This volume of The Urban Lawyer contains this and other articles with updates on environmental law, regulatory takings, land use and zoning, and municipal bond financing. For those of you who are SLG Section members, your copy is undoubtedly in the mail, and the pdf version will soon be available on the Section's web site. For those of you who are not Section members you get a freebie, at least of my article.

If you are not a member of our Section, you really should consider joining us since one of the benefits included with membership is a subscription to The Urban Lawyer, the premiere law review dealing with state and municipal law, which includes our favorite topics land use, eminent domain, and takings. The subscription to the journal alone is worth the membership cost.

Download the article here.

Note: This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Thursday Links: Public Use, Mass Court Saves Land Use, Judicial Takings

Here's what we are reading this Thursday:

• Appeals Court Declines Invitation To Destroy Land Use Law As We Know It - from the Massachusetts Land Use Monitor blog: "Now that the Appeals Court has reminded us of the permanence of permit conditions, anyone who receives a permit with a restrictive condition should think twice about whether that condition is a proper exercise of municipal authority, or whether an appeal should be taken in an effort to modify or strike a condition that will otherwise burden the land for time immemorial."

• The 'Public Uses' of Eminent Domain: History and Policy - (hat tip to PropertyProf blog for the heads-up) - "This paper examines the effects and implications of the ‘public use’ requirement for the exercise of eminent domain in the United States. It is part of an ongoing inquiry the consequences of eminent domain in the United States. The first part examines the history of the public use requirement, both how the doctrine has been articulated and logically extended and what purposes have been accomplished under it. The second part of the paper is an analytic critique of the public use doctrine. After considering whether any principled standard can be developed to delimit the proper uses of eminent domain, it examines a number of the difficult empirical and political questions confronted in any effort to develop such a standard that properly limits state power to confiscate privately held property."

• ITT Chicago-Kent to host conference on judicial takings - Although it took place yesterday, we're looking forward to reading the scholarship that it produced.

Scalia: Kelo = Dred Scott = Roe

According to the ABA Journal, Justice Antonin Scalia said this:

Justice Antonin Scalia predicted Monday that the Supreme Court’s decision in Kelo v. City of New London will be overturned.

Speaking to students at the Chicago-Kent School of Law, Scalia criticized the decision allowing the city of New London to use eminent domain to seize property for economic development, the Chicago Sun-Times reports. “I do not think that the Kelo opinion is long for this world,” Scalia said.

Scalia ranked Kelo among the top cases in which the court made a mistake of political judgment, according to the Sun-Times account. The others were the Dred Scott v. Sanford decision in favor of a slave owner and the Roe v. Wade decision finding a constitutional right to abortion.

"My court has, by my lights, made many mistakes of law during its distinguished two centuries of existence," Scalia said. "But it has made very few mistakes of political judgment, of estimating how far ... it could stretch beyond the text of the Constitution without provoking overwhelming public criticism and resistance. Dred Scott was one mistake of that sort. Roe v. Wade was another. ... And Kelo, I think, was a third."

Well that's nice, Your Honor. We hope this means you voted to grant cert in at least one the many cases that have been presented to the Court since Kelo. And since it only takes four justices to agree to grant a petition, we're wondering why not one of them has been accepted. When reviewing petitions that seek to narrow, clarify, or limit a decision you say is as bad as Dred Scott, we'd hope that the cert pool clerk isn't the one making the call. But since the Court has not accepted a single one of the many petitions presented to it in the six years since Kelo, what else can we think?

Upcoming National Webinar - Eminent Domain: Redevelopment Challenges for Local Government

Save the date: on Thursday, December 1, 2011 (1:00pm-2:30pm EST, 10:00am-11:30am PST) we'll be presenting the on-line seminar "Eminent Domain: Redevelopment Challenges for Local Governnment - Navigating Federal Funding Requirements, Challenges for Public Utilities in Right-of-Way Projects, and Objections to Taking for Public Use."

Joining me are colleagues Anthony Della Pelle (McKirdy & Riskin - New Jersey), J. Casey Pipes (Helmsing, Leach, Herlong, Newman & Rose - Alabama), Rick E. Rayl and Bradford Kuhn (Nossaman - California), and Mark M. Murakami (Damon Key Leong Kupchak Hastert - Hawaii).

Each member of the faculty should be well-known to our readers: Tony publishes the New Jersey Condemnation Law blog and is a frequent speaker at the annual ALI-ABA eminent domain program. Casey is with the Owners' Counsel member firm from Alabama and Co-Chair of the ABA Litigation Section's Condemnation, Land Use, and Zoning Law Committee. Rick and Brad produce the California Eminent Domain Report. Mark, of course, is our Damon Key partner-in-crime and a co-author of the ABA's recently-published handbook on eminent domain.

We'll cover issues related to public utility takings and right of way projects, federal law compliance for federal funding for transportation projects and for and relocation benefits, redevelopment issues in a post-Kelo world, and strategies for handling and raising objections to a taking.

More details including registration information here. Early registration discount deadline: Friday, November 4, 2011.

Please sign up and join us. There is a Q & A session at the end, so bring your questions.

Blogging From Beijing: The Brigham-Kanner Property Rights Conference

Next week, power adapters and internet connectivity permitting, we'll be blogging from the Brigham-Kanner Property Rights Conference at the Tsinghua University School of Law in Beijing, People's Republic of China.

Admin note: We've added "Brigham-Kanner Conference" as a separate category to catalog the posts related to the Conference. In order to read all of the posts under this topic, go here.

A property rights conference in the PRC? Should be interesting.

Here's the agenda and the list of sessions.

The honoree this year is Justice Sandra Day O'Connor. The speakers include the past winners of the B-K prize, Frank Michelman, Richard Epstein, James Ely, Margaret Jane Radin, Robert Ellickson, Richard Pipes, and Carol Rose. In addition to these luminaries in the property law and property rights field, the speakers include the top property law scholars and practitioners in the U.S. (Alan Ackerman, Andy Brigham, Jim Burling, David Callies, Leslie Fields, Mark (Thor) Hearne, Patty Salkin, and Joe Waldo, to name a few), and many scholars of Chinese property law from our host country. See the complete list here.

We'd add our usual "hope to see you there" (and we do), but if you haven't already made your flight reservation and secured your visa, it's probably too late to sign up now (trust us, we spent the day in a five-hour line at the Chinese Consulate to secure ours).

But if you won't be attending in person, it just means you'll have to tune in here next week and follow along. We'll try and bring you as much of it as we can.

Willits Point Update: Condemning First, "Crossing Fingers And Hope It All Works Out" Is Not A Public Use

If you haven't been following along with the latest New York City eminent domain fight, you really should be. Subscribe to Willets Point United, the blog published by business and property owners in Queens who are objecting to the city's condemnation of their properties.

For a summary of the issues, read the brief filed recently by property owners. It argues that the taking is not for public use because the city

is not condemning because it plans to go forward with a specific project itself or with a developer in hand -- but rather, because the Respondent hopes that at some point in the future, there will be some third party private developer that will have the ability, financial backing and economic incentive to do so. Yet the Respondent's wishes and dreams do not a public purpose make.

Br. at 2. It also details the requirements of New York's eminent domain laws, if you are not familiar with that state's often-unusual condemnation process. It's a long brief, but a quick and enjoyable read. It was authored by our Owners' Counsel of America colleague Michael Rikon, one of the true pros in our field.

Brief for Petitioners, In re Serrone v. City of New York, No. 2011-05147 (Sep 26 2011)

Cert Denied In Pretext Case

Some day, the Court will grant cert in another eminent domain case.

But today is not that day.

The Court declined to review C & J Coupe Family Ltd. P'ship v. County of Hawaii, No. 11-75, the petition that asked, after Kelo, when is eminent domain pretextual? We represent the petitioner, and after the case did not show up on last week's grant list the handwriting was on the wall. But today's order list made it official.

This makes at least the third pretext petition denied by the Court, meaning the lower courts will continue to flounder about searching for clues in the Kelo majority opinion's language for the correct standard to assess whether a condemnor's asserted reason for a taking is a pretext to private benefit, and ask whether Justice Kennedy's concurring opinion means much of anything. Until the Court establishes a standard, any hope of a property owner actually proving pretext to an appellate court's satisfaction will remain largely illusory: governments and their eminent domain partners do not employ "stupid staffs" (to use Justice Scalia's famous phrase) who do not know how to hide private benefits behind plausible public benefits, or manufacture "blight" from thin air, and the lower courts can continue to assert that a pretext claim exists in theory, while rejecting it in each case in which it is raised.

Monday Round-Up

Here's what we're reading today:

• The Nets and NBA Economics - Malcolm Gladwell looks at the Atlantic Yards project, and the role of eminent domain.

• Fifth Circuit holds Severance v. Patterson "rolling beach easement" case is not moot -  From the PLF blog comes this notice that the Texas case about the "rolling easement" can be adjudicated, even though the plaintiff sold the land. This means you need to stay tuned to this case.

• Yale Urban Design Workshop Issues Fort Trumbull Report - Reporting on the attempt to revitalize the revitalization that resulted in Kelo, the New London Patch tells us: "A hotel would join the more visible structures along the waterfront. A band shell would appear on the south lawn of Fort Trumbull State Park. And the site formerly occupied by the famous “little pink house,” relocated after a Supreme Court eminent domain decision, would be filled in with an observation tower. These were some of the proposals put forth in the Yale Urban Design Workshop’s 'Fort Trumbull Vision,' a 75-page report detailing recommendations for the revitalization of the Fort Trumbull peninsula."

• Trying to follow along on the day-to-day goings-on in the challenge to "Obamacare" can leave us with little time for anything else, so here's a one-page primer from our friend Ilya Shapiro at Cato: Obamacare Legal News Gone Wild. You are now well-armed for the "so you're a lawyer?" small talk at your next cocktail party. 

• From lawprof Rick Hasen's Election Law Blog, the latest brief in a case we've been following, Carrigan v. Nevada Comm'n on Ethics. We'll have a complete post on the recent developments later this week.

 

Is Eminent Domain A "Civil Rights" Issue?

We recently asked "Is Kelo A Conservative Issue?," and the the Ricochet blog asked the related question "Is Eminent Domain a Civil Rights Issue?." 

In that vein, check out the above video from Reason about one case where "redevelopment" certainly seems to have raised civil rights concerns.

Too Soon Old And Too Late Smart: A Jurist Offers His Kelo Mea Culpa

Update: More thoughts on the apology from Gideon Kanner , the Queens, NY-based property owners' blog Willits Point United, and from eminent domain scholar lawprof Ilya Somin.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Comes word from Jeff Benedict, author of the Kelo book Little Pink House, via his blog and a story in the Hartford Courant, that one of the Connecticut Supreme Court justices who voted in favor of the government approached Mrs. Kelo last year at an event and apologized for ruling against her. 

After she told her story, he came up and said, "[h]ad I known all of what you just told us, I would have voted differently."

Recall that the Connecticut Supreme Court ruled 5-4 that the "economic development" taking of the homes of Mrs. Kelo and her neighbors passed muster under the Connecticut and U.S. Constitutions, overturning the trial court's post-trial judgment that the takings were invalid, so a single vote would have changed the ruling.

The publisher wanted to add this as a new epilogue to the forthcoming paperback edition of LPH, so Benedict wrote the justice to give him a heads-up. The justice responded:

"Those comments were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city's development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped." He later added that he could not know of those facts "because they were not yet in existence."

Before we get into a love-fest for the latest judicial mea culpa in this case (he's not the first jurist to offer a 20/20 hindsight in Kelo) let's remember what the Connecticut Supreme Court majority held:

We conclude that economic development projects created and implemented pursuant to chapter 132 that have the public economic benefits of creating new jobs, increasing tax and other revenues, and contributing to urban revitalization, satisfy the public use clauses of the state and federal constitutions.

Kelo v. City of New London, 843 A.2d 500, 520 (Conn. 2004) (footnote omitted).

And just what was the "economic development project" that the justices considered and concluded would "create new jobs" and have other sorts of rainbows-and-unicorns results?

The court relied on a legislative determination that eminent domain was necessary to acquire land for redevelopment, a determination it reviewed under both federal and state law with the "rational basis" test. See id. at 521-22. The majority concluded that Connecticut (like the federal courts) have "long taken a flexible approach to construction of hte Connecticut public use clause," id. at 522, and deferred to the legislature's determination of public use." Id. at 523 ("Moreover, the court in Olmstead laid the foundation for our deferential approach to legislative declarations of public use..."). Public "use" of the property taken is not the measure of the public use of the taking, "but rather, the right of the public to receive and enjoy its benefit." Id. at 525 (quoting Katz v. Brandon, 245 A.2d 579, 586 (Conn. 1968)).

The majority express cited with approval the U.S. Supreme Court's opinions in Berman v. Parker, 348 U.S. 26 (1954)  (where the Court held that the legislature's pronouncement of public interest -- and thus public use -- was "well-nigh conclusive"), and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), a case in which the Court "noted that whether the act is successful in solving Hawaii's land problems is irrelevant to whether it was passed in furtherance of a valid public purpose." Kelo, 843 A.2d at 527 n.38.

Having concluded that the success vel non of the legislative plan was "irrelevant," the Connecticut Supreme Court majority determined that "economic development" takings were not categorically prohibited:

Under this broad and deferential constitutional rubric, we conclude that an economic development plan that the appropriate legislative authority rationally has determined will promote significant municipal economic development, constitutes a valid public use for the exercise of the eminent domain power under both the federal and Connecticut constitutions.

Id. at 528. The court concluded:

Accordingly, we find them persuasive, and we conclude that economic development plans that the appropriate legislative authority rationally has determined will promote municipal economic development by creating new jobs, increasing tax and other revenues, and otherwise revitalizing distressed urban areas, constitute a valid public use for the exercise of the eminent domain power under either the state or federal constitution.

Id. at 531. The court rejected the property owners' arguments that the primary beneficiaries of the condemnations would be private entities, and that any public benefit was incidental and insignificant. Id. at 536. The court refused to evaluate the plan on a parcel-specific basis, and instead looked at the development plan as a whole. The court approved of the overall plan, and refused to balance the "social cost" of the plan against the supposed public benefits:

We take the opportunity, however, to state that the trial court's social costs analysis was an improper, but in this case, harmless, supplantation of a decision-making function better suited to legislative bodies. Although the courts remain charged with determining whether the facts and circumstances of the particular case reveal that the primary pur-pose of the taking is to benefit the public, the balancing of the benefits and social costs of a particular project is uniquely a legislative function.

Id. at 541 n. 58. The court concluded that the plan was sufficient because "the trial court correctly identified the ample public benefits that the development plan, once implemented, was projected to provide." Id. at 542. The majority expressly did not question whether these "projections" were accurate or truly predictive, noting that it "[a]ssum[ed] them to be correct," and that the courts review the legislature's factual assumptions by asking whether they "rationally may have considered to be true by the government decisionmaker." Id. at 542 & n. 60. This is a long way from asking whether the plan would really work, of course, and is predicated on the assumption that it would, with a property owner's only chance a showing that the legislature was wholly irrational when it believed it might work, truly an impossible standard of review.

The point of us quoting these passages from the majority opinion is that it did not matter to the court whether New London's development plan would "materialize." Thus, even if the property owners had been able to show that the plan likely would fail and that the area had a high chance of becoming "barren and wholly undeveloped," the rational basis standard of review endorsed by the Connecticut Supreme Court majority meant that these factual predictions would be meaningless unless the city's predictions of success were utterly impossible or completely irrational, which they were not. 

So while it's nice to see one of the justices who endorsed that rationale make nice and say sorry, it seems to be a bit of historical revisionism to suggest that if only he'd known the future accurately he would have voted differently (wouldn't we all, Your Honor, wouldn't we all), when he expressly held that predictions of success or failure of the plan were legally irrelevant. The rational basis standard of review he applied to the case makes his present assertion that he he didn't know of the failure of the plan because those facts "were not yet in existence," itself pointless.

How about instead of these heartfelt -- but legally meaningless -- post hoc gestures, courts adopt a standard of review that would allow consideration of evidence about whether redevelopment plans such an New London's really have a genuine chance of working?

Now that would be a development worth heralding.

Is Kelo A "Conservative" Issue?

Not hardly. Just check out the amici supporting her (NAACP, Jane Jacobs, et al.).

To drive the point home that many of the property owners on the business end of eminent domain are those who lack political power and influence, check out this brief filed on behalf of New York state Senator Bill Perkins in the Columbia/Tuck-it-Away case, where he argues that "blight removal" and "economic development" takings "disproportionately impact already marginalized groups, including tenants, the elderly, persons of low-income, and racial and ethnic minorities." Br. at 7.

A post on a blog at Forbes, Liberals Should Be Upset by the Kelo Case makes the point well.

Colorado: Private Condemnor Must Prove Present Necessity

Thanks to the Rocky Mountain Appellate Blog for pointing out the Colorado Supreme Court's recent opinion in The Glenelk Ass'n, Inc. v. Lewis, No. 10SC275 (Sep. 12, 2011), an important decision about the standard of proof in private-way-of-necessity condemnations. The court concluded that a property owner who claimed to be "landlocked" could not condemn a private access corridor over a neighbor's land without proof of a "concrete development proposal" showing that the access corridor is necessary.

Lewis owned a 334 acre ag-zoned parcel, and had the right to build one dwelling per 10 acres. Other access options were apparently not feasible, so Lewis and his neighbor Glenelk negotiated for purchase of an easement but failed to reach an agreement. Under Colorado law (like the law of many other jurisdictions) one private landowner may institute a condemnation action against a neighbor if necessary to gain access to a landlocked parcel, and Lewis brought suit to condemn the easement and sought immediate possession of a portion of Glenelk's land for an access road.

Lewis and other witnesses testified that he had a desire to develop his property, but did not have any present or contemplated plans for doing so:

At the hearing, Lewis testified that he "would like to develop" the Lewis property, but he did not specify the scope of development envisioned. He answered questions from his attorney concerning the type of access necessary to develop the property in thirty-five acre residential parcels. His son, Norman Lewis, testified that he had researched the possibility of subdividing the Lewis property into ten acre sites and that the easement sought was designed to provide a twenty foot wide travel surface, including shoulders. Civil engineer Chris Purrington, who Lewis hired to design the easement, testified that the travel surface of the roadway he designed is "just about," or "more or less" twenty-five feet wide. Lewis sought to condemn a seventy foot wide easement to accommodate "ingress, egress, utilities, drainage, maintenance, snow storage, and emergency access for the benefit of the Lewis property, over, under, and across the Glenelk property."

Slip op. at 5. The trial court denied the request for immediate possession, and in his motion for reconsideration Lewis argued that '[w]hile it may be unclear whether or not the Lewis property will ultimately be developed for one single-family residence or as many as thirty single-family residences[.]" Based on this and the earlier testimony, the court concluded that Lewis' development plans were "speculative" and were not sufficiently realized to make it "necessary" to condemn an access, and dismissed the case.

The court of appeals reversed, concluding that it was enough that the proposed easement to be condemned was consistent with the relevant zoning regulations.

The Colorado Supreme Court rejected that rationale, holding that in a private condemnation, the condemning landowner must show "necessity," which means:

when a petitioner seeks to condemn a private way of necessity for access to property the condemnor wishes to develop in the future, the condemnor must demonstrate a purpose for the condemnation that enables the trial court to examine both the scope of and necessity for the proposed condemnation, so that the burden to be imposed upon the condemnee’s property may be ascertained and circumscribed through the trial court’s condemnation order.

Slip op. at 7. Proof of necessity "turns on the unique facts and circumstances of each particular case," slip op. at 13, and the scope of the condemned easement must be limited to the property that is "indispensable" to the condemnor's intended use of his own property. Because Lews could not articulae a concrete development proposal and did not begin any process for land use approvals, the Supreme Court found it impossible to say that he met his burden of showing necessity. Because his proposal was "variable" (somewhere between 1 and 30 dwellings on the property), the trial court could not evaluate whether the easement to be taken was limited to what was necessary. Slip op. at 16-17.

Because "neither the road travel surface width, nor the intended magnitude of development envisioned by Lewis is clear," slip op. at 17-18, the trial court correctly dismissed the condemnation action due to the "evidentiary shortcomings" in the record. The Supreme Court rejected the court of appeals' rationale that compliance with zoning regulations is the test;  zoning regulations limit the scope of the condemned easement, but are defined by the intended use. Slip op. at 19.

This case is important because it clarifies that a private landowner cannot condemn the land of her neighbor when all she has are vague, undefined plans to develop her own land. A claim that access is necessary should be reviewed by a court with an eye towards actual development proposals, and not pie-in-the-sky asserted plans.