May 2010

A reminder: on Tuesday, June 1, 2010 at 2:00 p.m. ET, we will be live blogging the oral arguments in Kaur v. New York State Urban Development Corp.

In that case, the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected overwhelming private benefit and lack of “blight.” The agency appealed to the Court of Appeals.

The Court of Appeals webcasts oral arguments, so we will be able to follow along and live blog the event. Joining me will be eminent domain scholar and property owners’ advocate Tim Sandefur, and my Damon Key colleague and fellow condemnation law attorney Mark Murakami. Sign up here for email notification, then on Tuesday, follow along and join in the discussion.

Here are the briefs in the Court of Appeals:

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Continue Reading Reminder: June 1 NY Court Of Appeals Oral Agument In Columbia “Blight” Case

In Smith v. Ark. Midstream Gas Servs, No 09-1186 (May 27, 2010), the Arkansas Supreme Court concluded that a taking for a natural gas pipeline by a private, for-profit utility company was not a violation of the state constitution’s public use clause.

Arkansas law delegates the power of eminent domain to certain pipeline companies and deems them to be “common carriers” — 

All pipeline companies operating in this state are given the right of eminent domain and are declared to be common carriers, except pipelines operated for conveying natural gas for public utility service.

Ark. Code Ann. § 23-15-101. The public use clause in the Arkansas Constitution isn’t that much different than similar provisions in other constitutions:

The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation thereof.

Ark. Const. art.

Continue Reading Arkansas Supreme Court: Pipeline Taking Not A Private Use

Here’s a case, issued yesterday by a California Court of Appeal, that is not directly about the use of eminent domain for redevelopment purposes to remedy “blight,” but is nonetheless worth reviewing since it shows how redevelopment supposedly “pays for itself” (in the words of a court) through tax increment financing:

Under the [California Redevelopment Law (Cal. Const. art. XVI § 16], redevelopment is financed through tax increment financing. In essence, a redevelopment agency, which is not empowered to tax, but which is empowered to acquire debt through loans or the sale of bonds (§ 33601), finances a redevelopment project through borrowing. When the redevelopment results in increased property values in the redevelopment area, the tax attributable to the increase in value — the tax increment — is distributed by the taxing authority to a special fund of the redevelopment agency, to pay the principal of and interest on…

Continue Reading How Remedying Blight “Pays For Itself”

Here’s the latest development in the reconsideration process in the Turtle Bay/Kuilima EIS case, Unite Here! Local 5 v. City and County of Honolulu, No. 28602 (Apr. 8, 2010).

As we noted earlier, Kuilima Resort Company filed a motion asking the Hawaii Supreme Court to reconsider or clarify its opinion in the case. Recently, a motion for leave to file an amicus brief in support of Kuilima’s motion for reconsideration was filed by the Land Use Research Foundation of Hawaii and a whole bunch of others (too numerous to list, but read the brief if you need to know who they are).

The motion argues:

Movants seek to file an amicus curiae brief to apprise the Court of important legal issues and public interests at stake in this precedent-setting case of first impression including, but are not limited to, how:

1. The Court Opinion, unless reconsidered or clarified…

Continue Reading Another Brief Seeking Reconsideration Of HAWSCT’s Kuilima/Turtle Bay Supplemental EIS Opinion

According to the Daily Reporter (Wisconsin), that is. If it’s on the internet, it must be true, right?

Activists want U.S. Supreme Court to rule on eminent domain case summarizes the background in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010):

National organizations that focus on eminent domain law are urging the U.S. Supreme Court to rule on a lawsuit over the vacant property at 27th Street and Wisconsin Avenue in Milwaukee.

The Redevelopment Authority of the City of Milwaukee acquired the property in 2001 from Maharishi Vedic University Inc. by declaring the land blighted. The authority paid $140,000 to the university and $300,000 to the City of Milwaukee Veterans of Foreign Wars Post No. 2874, which held a long-term lease for space in a vacant…

Continue Reading We’re “Activists!” Who Knew?

Appellate courts issue opinions and orders to decide cases. The opinions and orders in many cases get “published,” meaning that they end up in the bound reporters (the U.S., Federal, Federal Supplement, the official state reports, and in West’s Regional Reports, for example) and become precedential and set forth a rule of law governing future litigation.

Most appellate courts also issue opinions and orders that are not “published” in the sense referred to above, even though they are “published” meaning they are made available to the public. Generally speaking, these are cases presenting more routine issues. Unpublished decisions may be designated as unpublished opinions, memorandum opinions, summary disposition orders, “per curiam” opinions, or simply may bear the notation “Not For Publication.” The rules vary by jurisdiction on whether unpublished opinions are precedential, and even whether they can be cited in a brief. [Barista’s note: we are of the school believing…

Continue Reading “Unpublished” Opinion Round-Up

A couple of days ago, we posted “Final Briefs In Hawaii Beach Takings Case: Is ‘Future’ Accretion A Present Property Interest?” with what we thought was a complete set of the merits and amicus briefs filed in Maunalua Bay Beach Ohana 28 v. State of Hawaii, No. 28175 (cert. application filed Apr. 22, 2010).

Turns out we missed one set, the amicus brief of Hawaii’s Thousand Friends which urges the Hawaii Supreme Court not to accept the application for a writ of certiorari filed by the property owners, and the property owners’ brief responding to HTF’s brief.

Here they are:

[Our usual disclosure: we filed an amicus brief in the Intermediate Court of Appeals supporting the property owners, and recently filed an amicus brief in the Supreme Court].

Unless there is another…

Continue Reading Final (Final) Briefs In Hawaii Beach Taking Case: Is “Future” Accretion A Present Property Interest?

The first line of this opinion issued today by the Georgia Supreme Court got us all excited:

The trial court dismissed this condemnation case for lack of prosecution pursuant to OCGA § 9-2-60 (b).

Windsor f/k/a Bank v. City of Atlanta, No. S10A0102 (May 17, 2010). Was it a case where a condemnor sat on its rights? Started to take property then did nothing? Alas, it was not quite as dramatic.

The city needed a 29-foot subsurface easement to address a substandard sewer line. The city offered $180 for the easement but Windsor declined, at which point the city instituted a “declaration of taking” action and put $400 into court as the estimated compensation. The trial court vested title in the city. Slip op. at 3.

Windsor challenged the taking, including with its claims a challenge to the constitutionality of the declaration of taking procedure. The issues were briefed…

Continue Reading Georgia SCT: Lack Of Prosecution Time Limit Applies To Condemnees