October 2010

Slough Remember that now-iconic scene in The Fugitive, where Harrison Ford’s character has turned the tables on Tommy Lee Jones, and while holding Jones at gunpoint proclaims, “I didn’t kill my wife!”

Jones’ response — “I don’t care!“ — could just as easily apply to regulatory takings law, especially where a property owner alleges a regulatory action results in a per se taking (either a Lucas interference with all economically beneficial use, or a deprivation of a fundamental aspect of property such as the right to exclude).

In those cases, it generally does not matter what justifications the government may have for the regulation — the only thing relevant is the impact of the regulation on the property. In other words, even a regulatory action that might be a very good idea (from the government’s perspective) results in liability for compensation if it results in a taking…

Continue Reading Wash. App: “I Don’t Care!” – Regulatory Takings Are About Impact, Not Justification

The Institute for Justice, the Cato Institute, and the Beckett Fund for Religious Liberty have weighed in on Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not…

Continue Reading One More Amicus Brief In Columbia Eminent Domain Case: Court Should Clarify “Pretextual Taking”

New York State Senator Bill Perkins has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010)

This the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate…

Continue Reading Another Amicus Brief In Columbia Eminent Domain Case: Redevelopment Takings “[D]isproportionately impact … racial and ethnic minorities.”

The Pacific Legal Foundation has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia “blight” case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is “substandard or insanitary” is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate Division…

Continue Reading Amicus Brief In Columbia Eminent Domain Case: What Level Of Scrutiny Does Kelo Require?

40.10914_Page_1 The first task under the Supreme Court’s three-part test for an ad hoc regulatory taking under Penn Central is to measure the “economic impact of the regulation.” Professor Steven Eagle wrote in the recent edition of his treatise Regulatory Takings that “[d]iscerning the correct measure of economic impact has been the subject of much dispute.”

Thanks to the folks at the Environmental Law Institute, who have allowed us to reprint an article from a recent Environmental Law Reporter which brings some clarity to the subject.

In Federal Circuit’s Economic Failings Undo the Penn Central Test, William W. Wade, Ph.D., a resource economist with the firm Energy and Water Economics (Columbia, Tennessee), argues:

Faulty understanding of standard economic and financial analysis within regulatory takings cases continues to set this jurisprudence apart from standard tort cases, where state of the art economic methods typically are applied within both liability and…

Continue Reading The Federal Circuit’s Economic Failings Undo The Penn Central Test

Here are the slides that I used and links to the cases I discussed in “The Whacky and Wonderful World of Eminent Domain After Kelo.”

My presentation was entitled “Schlimmbesserung – Eminent Domain for Redevelopment.” Schlimmbesserung is one of those wonderful German compound words that have no direct translation into English, and means “worsening by improvement.” That term summed up for me how several of the more notorious efforts to use eminent domain in redevelopment efforts have fared (e.g., Poletown, Kelo). Professor Gideon Kanner recently posted some thoughts on “redevelopment blunders” here. The Owners’ Counsel of America’s blog has a summary of the seminar here.

Joining me on the panel was Andrew W. Schwartz, a partner in San Francisco’s Shute, Mihaly & Weinberger, who suggested that redevelopment was good, and that eminent domain was a necessary part of the process when market forces break…

Continue Reading Materials And Links From The Webconference “Eminent Domain After Kelo”

Mass_blogBoston law firm Rackemann, Sawyer & Brewster has started the Massachusetts Land Use Monitor, which focuses on “court decisions and other developments in land use and real estate law, legislation and policy” from the Bay State.

Bob Foster, my colleague in the ABA’s State and Local Goverment Law section, is one of the authors and recently posted SJC [“Supreme Judicial Court,” for us non-Mass lawyers] on Regulatory Takings: That Word Does Not Mean What You Think It Means, a post about the court’s recent decision in Blair v. Dep’t of Conservation (Aug. 26, 2010). That case involved the question of whether use restrctions prohibiting a property owner from constructing a retaining wall and expanding a beach were a taking. Bob writes:

The main issue was whether the statute effected a regulatory taking.  This hinged on whether the regulation as applied to the Blairs’ property deprived them of…

Continue Reading New Land Use Law Blog: Massachusetts Land Use Monitor

Eminent Domain NYC There was a time when eminent domain lawyers practiced in relative obscurity. Other than a select few, not many knew about condemnation or eminent domain law, or regulatory takings or inverse condemnation. 

But ever since the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), which permitted the taking of a nonblighted home for economic redevelopment (someone else might make more economically productive use of your property than you do), “eminent domain” has become a household word.

These days, it even inspires art.

Brooklyn artist Bettina Johae’s new project is “eminent domain: nyc.” Here is the artist’s description:

Bettina Johae’s project, “eminent domain, nyc” (2010), investigates the use of eminent domain—for public and for private use—in New York City over the past centuries: from the creation of Central Park and the forming of New York’s streets in the 19th century, via…

Continue Reading Art Imitates Life In eminent domain: nyc

An opinion worth reading from the Missouri Court of Appeals on the relationship between an action in trespass and eminent domain. Sterbenz v. Kansas City Power and Light Co., No. WE71776 (Oct. 5, 2010) discusses the liability of a utility company for the installation of an underground utility line without an easement.

The Sterbenzes discovered that the utility company was installing a conduit on their land and informed the utility that it had no easement to do so. The utility offered to purchase an easement, but the Sterbenzes refused, and filed suit for trespass, among other claims. The utility countered by filing an eminent domain lawsuit against the Sterbenzes to condemn an easement. “The eminent domain action was stayed by agreement pending disposition of the Sterbenzes’ lawsuit. In fact, though not disclosed in the parties’ briefs, the record on appeal indicates that the parties stipulated to be bound by…

Continue Reading Trespass And Eminent Domain Compared

On Friday, November 19, 2010, I’ll be on the faculty of “Integrating Water Law and Land Use Planning” in Honolulu. My session will cover “Water Rights, Property Rights and the Law of Settled Expectations.”

Other sessions include “Hawaiian Water Rights – Where Culture and the Law Merge,” “Amendments to the Instream Flow Standards in East and West Maui,” and “County of Hawaii Water Use and Development Plan.” The complete agenda is posted here.

Also on the faculty are my Damon Key colleague Christi-Anne Kudo Chock; Dr. Lawrence Miike, Commissioner on the State Commission on Water Resource Management; and Lawrence Beck, Civil Engineer with the County of Hawaii Department of Water Supply. Dr. Miike is a physician and attorney, and the author of Water and the Law in Hawaii (2004).

This seminar is usually held biannually, so this may be your last chance for a couple of years…

Continue Reading November 19, 2010: Hawaii Water Law Conference