Development agreements

  • Today’s oral arguments in Missouri Supreme Court in the Tourkakis appeal, a case of an attempted taking for economic development, have been posted here

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I’ve had a chance to review Matsuda v. City and County of Honolulu, No. 06-15337 (Jan 14, 2008), a decision by the Ninth Circuit on the Contracts and Due Process clauses, but which also involves how local governments exercise the power of eminent domain.  The case revolves around Chapter 38 of the Honolulu Revised…

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

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

  • One

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In a story dated December 30, 2007 in the New York Times Travel section, “Not in My Tropical Backyard,” Christoper Pala ties together several seemingly-unrelated threads: the Hawaii Superferry, development on Molokai, the Hokulia project on the Big Island, and expanded resort development on Oahu’s North Shore.  The only issue that…

Thanks to Timothy Sandefur at PLF on Eminent Domain for calling attention to the Colorado Supreme Court’s opinion in Wheat Ridge Urban Renewal Auth. v. Cornerstone Group XXII, LLC, No. 06SC591 (Dec. 3, 2007). 

In that case, the court refused to order a redevelopment agency to condemn private property and turn it over to a developer to build a Walgreen’s store.  The court held that judges have no authority to compel an agency to take property even if the agency had entered into a contract with the developer in which it agreed to do so.  While not expressly relying on separation of powers, the court’s opinion clearly was based on its concern with preserving the agency’s discretion to condemn (or not condemn) private property.  See slip op. at 21-22.  The bottom line is that in Colorado, courts have no jurisdiction to fashion a specific performance remedy requiring the government to exercise a sovereign power.

Professor Ilya Somin calls the victory “Pyrrhic” in his analysis of the decision, suggesting the court’s “reasoning is likely to undermine property rights in the long run.”  While the opinion is often opaque and many of its premises difficult to fathom, I’m not so sure the case should be considered so poorly.  After all, the court reached a good result, although its analysis ventures into areas it need not have gone.  Continue Reading Court Has No Power to Order Government to Take Property

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

A vast majority of cases challenging such takings are resolved through injunctions; takings temporarily halted by court injunction are often abandoned. But because Judge DeMayo had granted New England Estates and the landowners the right to seek a claim…