Some interesting items have crossed my desk on Friday and Saturday:
A recent book of interest to condemnation lawyers, Current Condemnation Law: Takings, Compensation & Benefits (2d ed.).
The book is co-edited by my Owner’s Counsel of America colleague Alan T. Ackerman. (He also has a blog about eminent domain issues.)
From the blurb:
Condemnation of property is an especially topical subject after the U.S.
Atlantic Yards Reports post this summary of the recent oral arguments in the state court fight over the massive redevelopment project in Brooklyn. More on the case here and here.
Eminent domain in the news:
Separately, [Carol] Browner [President Obama’s special advisor on climate change and energy] said the administration was also going to create an inter-agency task force to site a new national electricity transmission grid to meetboth growing demand and the President’s planned renewable energy expansion.Siting has been a major bottleneck to renewable growth, and lawmakers andadministration officials have said they’re likely to seek greater federal powersthat would give expanded eminent domain authorities.Continue Reading Eminent Domain Round-Up
Some interesting reports today:
Here are the links to the cases that I spoke about in my session in today’s seminar “Supreme Court, Regulatory Takings and Eminent Domain Update.” Not all of the cases we discussed today are included below, so if you would like a link or more information about a case that is not listed, please email me at rht@hawaiilawyer.com and I will send it to you.
The majority opinion by Justice Acoba, joined by Justices Nakayama and Duffy is posted here:
We hold that (1) a landowner in a condemnationaction is entitled to damages under HRS § 101-27 where the property atissue is not finally taken in the context of a particular condemnationproceeding, irrespective of whether the government attempts to take theland through subsequent condemnation proceedings; (2) abatement doesnot apply where the relief sought in two concurrent actions is not thesame; and (3) although our courts afford substantial deference to thegovernment’s asserted public purpose for a taking in a condemnationproceeding, where there is evidence that the asserted purpose ispretextual, courts should consider a landowner’s defense of pretext. Therefore, (1) automatic denial of statutory damages under HRS §101-27in Condemnation 1 is vacated and the case remanded for a determinationof damages, (2) the court’s conclusion that Condemnation 2 was notabated by Condemnation 2 is vacated and the case remanded for adetermination of whether the public purpose asserted in Condemnation 2was pretextual.
Slip op. at 5. Here’s the concurring and dissenting opinion by Chief Justice Moon joined by Justice Levinson. The briefs in the case are available here: Opening Brief, Answering Brief of the County of Hawaii, Reply Brief. Disclosure: we represent the property owner.
- When a project not being built on state or county land meets the definition of “use” of such lands triggering chapter 343 environmental review – Nuuanu Valley Ass’n v. City & County of Honolulu, No. 28599 (Oct. 24, 2008)
- Illinois Supreme Court decision about the 3% “surcharge” on casinos, which was given to horse racing tracks. Empress Casino Joliet Corp. v. Giannoulias, No. 104586 (June 5, 2008)
- Is destruction of evidence seized from an innocent third party a taking? AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008)
- Development Moratorium a Taking Under Lucas – Monks v. City of Rancho Palos Verdes, No. B201280 (Cal. Ct. App. Oct. 1, 2008)
- No private right of action to enforce zoning – The Hawaii Intermediate Court of Appeals, in Pono v. Molokai Ranch, Ltd.,119 Haw. 163, 194 P.3d 1126 (2008), held that a private party had nostanding to enforce the state’s land use laws. The Hawaii Supreme Courtrejected certiorari review of the case. Disclosure: we represent thelandowner. More here.
- Charles A. Pratt Constr. Co. v. California Coastal Comm’n (cert petition on Williamson County and Penn Central)
- Aspen Creek Estates, Ltd. v. Town of Brookhaven – New York Court of Appeals (comprehensive taking plan)
- City of Stockton v. Marina Towers LLC – Cal. Court of Appeal (details required in resolution of necessity)
- Resource Investments, Inc. v. United States– Court of Federal Claims (massive opinion and primer on regulatorytakings – erroneous exercise of jurisdiction as a temporary taking)
- Florida regulatory takings cases – Florida Supreme Court and District Courts of Appeals
- Substantive due process in the Ninth Circuit after Lingle – The Ninth Circuit Rediscovers Substantive Due Process in Land Use Cases
In a brief memorandum opinion, the New York Court of Appeals (the state’s highest court) today affirmed the Appellate Division’s decision in Aspen Creek Estates, Ltd. v. Town of Brookhaven, a case challenging a municipality’s ability to take property for farmland preservation. The court held:
Petitioner contends that the United States Supreme Court’s
Some interesting reports filtering across my screen today:
A very important decision by California’s Third District Court of Appeal, exposing the fantasy behind the Kelo majority’s conclusion that decisions to take property are most often the result of an objective process and comprehensive and carefully considered planning. In City of Stockton v. Marina Towers LLC, No. C054495 (Feb. 13, 2008), the court
In United States v. 480.00 Acres of Land, No. 07-13584 (Feb. 11, 2009), the US Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida, and Georgia), held “in order for a fact finding body to ignore a regulation in calculating ‘just compensation’ for a given piece of property, the landowner must show