inversecondemnation.com

Anyone Up For A Road Trip To Nebraska For "Eminent Domain" In Lincoln This Month?

Eminent domain has been on our mind a lot lately. 

But did you know there's an award-wining play, "Eminent Domain?" Neither did we. Based on a book, it appears.

Soon to be on the stage at Lincoln, Nebraska's Lied Center for the Performing Arts, produced by the Angels Theatre Company. Here's the summary:

Any Nebraska farmer or rancher worth their salt will tell you their connection to the land is equally as strong as their bonds to family, community, and their good name. When Rob McLeod is confronted with a threat underneath his land, he and his entire family discover how fragile and endangered their bonds will become.

An award-winning play, written by Nebraska playwright Laura Leininger-Campbell, Eminent Domain digs beneath the day-to-day struggles facing our family farms. Dig deeper, and the greatest threat to America’s Heartland is revealed: how can this way of life survive without its next generation?

Get your tix here.

Anyone up for a visit to Lincoln later this month?

Challenge To Sham Eminent Domain: The Government Can't Lie About Why It Takes Property

Before we go further, a disclosure: this is one of ours.

Here's the Complaint for Violations of Constitutional and Civil Rights, filed yesterday by the Santoro Family in federal court in Rhode Island. This lawsuit challenges, under the Public Use Clause, a RI town's eminent domaining the family's land for the ostensible purpose of building a new municipal campus. 

Sounds like a "classic" public use, you say? Not so fast. As alleged in the complaint, the actual use, purpose, and necessity for the taking is something else: to stop the Santoros from building 250+ low- to moderate-income housing.

Because this is one of ours, we won't say more. But here's the story, from the Complaint:

1. SCLS Realty, LLC, and Sixty Three Johnston, LLC, family-owned homebuilders whose members are Lucille Santoro, Salvatore Compagnone, Ralph Santoro, and Suzanne Santoro (the plaintiff LLCs are referred to herein jointly as “Santoro Family”), bring this action to vindicate the family’s constitutional and civil rights, threatened by an outrageous abuse of government powers—a sham taking—by the Town of Johnston, Rhode Island (“Town”), and its officials. The Town claims it needs to use eminent domain to build a new municipal campus. But this is false. The real reason it the Town is forcibly depriving the Santoro Family of its land is to stop the building of over 250 desperately needed affordable homes.

2. Rhode Island is deep in what the State’s elected leaders have accurately called an affordable housing crisis. The Town, a suburb of neighboring capital-city Providence, is not immune, and less than eight percent (8%) of housing within its jurisdiction is considered “affordable” for the average Rhode Islander. The Santoro Family recognized this critical need and began planning to build affordable housing on its property. As far back as 2004, the Town’s Comprehensive Community Plan identified the Santoro Family’s property for affordable housing. In October 2024—in accordance with a state statute which required a streamlined approval process for development of low-to-moderate income housing—the Santoro Family began the process of obtaining the Town’s approvals.

3. Instead of embracing the Santoro Family’s use of its private property for affordable housing, the Town’s mayor, Defendant Joseph M. Polisena, Jr. (“Polisena”), publicly vowed to “use all the power of government that I have to stop it.” He stated the Town opposed affordable apartments, but that if the Santoro Family would instead propose building a smaller number of less-affordable suburban-style residences, then, “the town w[ould] roll out the red carpet to glide you through the planning process and see the project to completion.”

4. The Santoro Family refused to buckle under this intimidation and declined to withdraw or alter its plans to build affordable housing. In response, for the non-public purpose of thwarting affordable housing, the Town, in bad faith and with spite and actual animus, exercised eminent domain to force the Santoro Family into a choice: either alter or halt the affordable housing plans, or be deprived of the family’s land by government force.

5. On January 28, 2025, the Town, acting through its town council, officially resolved that the Town “should proceed with eminent domain … for the public purpose of constructing a municipal campus[.]” Prior to vowing to stop the Santoro Family, the Town had never expressed a need for, and had no plans to build, a new municipal campus. The Town’s Comprehensive Community Plan shows no plans for new municipal public buildings. The Town has never held any public discussions or hearings regarding a new municipal campus. It has no building or other actual plans for a new municipal campus. It has not considered other locations or evaluated whether the current location of the Town’s municipal complex is suitable for redevelopment. The Town never formed a municipal public buildings authority under R.I. Gen. L. § 45-50-12(16), a prerequisite to the use of eminent domain to acquire property for municipal public buildings. It has not set aside money or budgeted for a new municipal campus (instead, the Town asserts it will shift money already earmarked for the construction of a new high school to fund this fraudulent exercise of eminent domain).

6. The power of eminent domain is the government’s most potent civil power. It forces property owners who may not want to sell to do so, at a price the owners don’t necessarily agree to. The Constitution and law recognize that such overwhelming government power is readily subject to abuse. Thus, when government paints an eminent domain target on a property owner’s back and asserts the owner’s property is to be seized for what the government claims is a public use or purpose, the courts have an essential role in ensuring that the government’s stated use and purpose is the government’s actual use or purpose. In short, the taking must be actually “for public use,” and not bogus—or a pretext to some secret motive. Both the U.S. and Rhode Island Constitutions bar the Town from concealing or colluding to hide its real reasons for taking the Santoro Property. Eminent domain cannot be employed to stop property owners from using their land in legal ways, under the guise of a public use or purpose. Defendants are abusing the eminent domain power to block affordable housing for low-to-moderate-income families, simply because they don’t want that kind of thing in their town.

Stay tuned.

Complaint for Violations of Constitutional and Civil Rights, SCLS Realty, LLC v. Town of Johnston, RI, No. 25-cv-00088 (D. R.I. Mar. 10, 2025)

Virginia Eminent Domain Conference: May 8-9, 2025, Williamsburg

Virginians: now is a good time to register for the Virginia Eminent Domain Conference, May 8-9, 2025, at the Kingsmill Resort in Williamsburg.

We have spoken and attended the Conference in past editions, and can report that it is excellent. We're looking forward to joining friends and colleagues again in The Burg in the spring. Check out the faculty and agenda, and then register and reserve your spot.

We'll see you there.

Texas Eminent Domain Conference - Austin, March 27-28, 2025

Texans: now is a good time to register for the 24th Annual Texas Eminent Domain Superconference, March 27-28, 2025, at the Austin Country Club in Austin.

We spoke at the Conference a couple of years agolast year and in other editions, and can report that it is excellent. Check out the faculty and agenda, and then register and reserve your spot.

New Article: "Reconceptualizing 'Background Principles' in Takings Law," 109 Minn. L. Rev. 689 (2025)

Lawprof Timothy Mulvaney has published "Reconceptualizing 'Background Principles' in Takings Law," 109 Minn. L. Rev. 689 (2025). 

If the title alone doesn't grab your interest, here's the summary from the article's introduction:

Both libertarians and progressives rejoiced in the result reached by the Supreme Court in the 2023 matter of Tyler v. Hennepin County. This Article asserts that such unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the Constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the background principles of property laws endorsed by a majority of states rather than in those underpinning the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations that have characterized our federalist system for more than two centuries, the Article contends that Tyler is better interpreted as an epic failure in judicial transparency: The opinion reflects a sly reticence to acknowledge the reality that resolving competing claims to property demands moral judgment regarding the background principles of property law. In following this deceptive course, Tyler invites a race to legislative homogeneity and erects a dangerous barrier to states’ abilities to innovate in the face of evolving social, economic, and environmental conditions.

Check it out.

Eviction Moratorium As A Physical Taking All Teed Up

Here's the latest in a case we've been following. This is GHP Management Corp. v. City of Los Angeles, No. 24-435, the cert petition which asks whether a local ordinance which allowed non-paying tenants to remain in the lessor's property is a physical taking, or merely the regulation of the lessor/lessee relationship under the Yee theory, which posits that once an owner voluntarily rents property to a tenant, the government then allowing that tenant to remain rent free isn't facilitating an unauthorized physical occupation, but rather is merely a regulation of the existing lessor/lessee relationship. 

The petitioner property owner has filed its cert stage Reply, which means that all the briefing is in, and next up is for the Supreme Court to set the conference date. Here's the summary of the issues from the Reply:

Respondents prefer a world where government enjoys absolute immunity from as-applied physical takings claims against regulations affecting owner- tenant relationships, even where such laws preclude eviction for non-payment of rent. The Fifth Amendment stands for no such thing.

Petitioners’ claim reflects a straightforward application of the doctrine of physical takings reaffirmed in Cedar Point Nursery v. Hassid. Petitioners should not have been turned away at the courthouse doors on the sole basis that they “invited” tenants to lease in the first place, per Yee v. City of Escondido. That distinction motivates the question presented by this petition, a question that was squarely considered by both courts below, as well as other appellate courts from which the Ninth Circuit now splits.

It is time for clarity. Eviction moratoria functionally commandeer private property for the public’s benefit under the guise of merely tinkering with owner-tenant relationships. Such laws will be adopted again to satisfy the purported needs of the day—including just last week in connection with recent wildfires (see infra § II (eviction moratorium adopted in County of Los Angeles applicable to 88 cities)).

The petition should be granted.

The case has generated a lot of amici interest on both sides, so we're going to continue to follow along closely. Stay tuned.

NJ App Div: No Taking To Use The Property To Trade For "Open Space"

We had the New Jersey Appellate Division's opinion in Township of Jackson v. Getzel Bee, LLC, No. A-0590-23 (Jan. 31, 2025) in our queue to digest, when our colleague Joe Grather beat us to the punch with his analysis "Appellate Court Rejects Condemnation Due to Lack of Public Use or Purpose."

So instead of repeating Joe's summary and analysis, we're going to recommend you read his. The short story is that the Township used eminent domain to take property, with the avowed public use being "open space," which is generally a qualifying public use. The owner objected and the Appellate Division agreed that yes, open space may be a public use, but here, the record pointed to the property actually being used as a "currency" to "exchange for open space." As Joe writes:

I’m not so sure we agree with the idea that the constitutional “public use” limitation should be stretched to allow the taking of private property for a “broader public purpose.”  We will save that discussion for another day because the Appellate Division’s reversal does not embrace that concept.  To be sure, as expressed in the opinion, “neither Kelo nor the Eminent Domain Act contemplates the condemnation of a property for use solely as an asset in a scheme for an otherwise valid public purpose on some other property. Otherwise, as the LLCs aptly posit, government officials would be able to violate private property rights at any time for any reason—or for no reason—untethered to the public use requirement.”

Here's our takeaways:

• The court focused on the actual factual record in the case, not stuff the condemnor or its lawyers made up.
• The opinion noted that "[i]n its opposition brief, the Township contends - for the first time - that the Developer intends to build dormitories for students on the condemned property. However, the record before us is bereft of any indication as to the use of the condemned lots, other than what is,in essence, currency, to exchange for open space." Slip op. at 11. The condemnor's litigation position isn't what counts, the actual record governs.
• The opinion cited Kelo for the A-to-B prohibition (even though Kelo upheld an A-to-B taking). In short, the taking here was a "purely private taking."
• Yes, the limitation on the taking power the court recognized here is statutory, and not constitutional. But the reasoning and method should be the same.

Be sure to check it out.

Township of Jackson v. Getzel Bee, LLC, No. A-0590-23 (N.J. Super. App. Div. Jan. 31, 2025)

Arizona: Damages For Proximity To Highway Project Available When An Easement - And Not Just Land - Is Severed

Like a lot of residential communities these days, Foothills Reserve was developed under a master plan, and you know what that means ... a homeowner's association and CCRs (covenants, conditions, and restrictions). 

The HOA owned common areas, in which the homeowners had easements under the CCR's. A "positive" easement to enter and use the common areas, and a "negative" easement which limited the common areas to use as open space. These easements ran with each homeowner's land.

As part of a highway project, the State of Arizona used eminent domain to take the common areas and the homeowners' easements. It provided just comp to the HOA for the common areas, while the HOA, on behalf of the homeowners, "sought both the value of the easements themselves and damages for the reduction in home values due to the new freeway's proximity." The State agreed it was obligated to provide comp for the easements, but disputed the "proximity damages." This isn't a taking of the homeowner's land, but only a damaging of their appurtenant easements. Severance damages are only available when land is severed in a partial taking. 

The trial court ruled for the owners and awarded $12 million for proximity damages, but the court of appeals agreed with the State, concluded that "such damages are available only when the condemned property is a physical parcel of land." The Arizona Supreme Court agreed to review.

In Arizona v. Foothills Reserve Master Owners Ass'n, No. CV-23-0292 (Jan. 28, 2025), it held in favor of the owners, concluding that these proximity damages are a type of severance damages under Arizona's statute that requires severance damages when "the property sought to be condemned constitutes only a part of a larger parcel[.]"

The court held that "[o]ne type of severance damage, proximity damages, occurs when the remaining property is in close proximity to a newly built improvement on the condemned property, like the freeway here." Slip op. at 6. Proximity isn't enough, however, and "[o]nly an owner whose property is severed by condemnation is entitled to proximity damages." Id.

When land is involved, it's easy. But what about here, where the condemned property is an appurtenant easement? As the court framed the issue, "[o]ur resolution turns on whether 'the property sought to be condemned" - the appurtenant easements - was 'part of a larger parcel' owned by Homeowners." Slip op. at 7.

The court held yes, interpreting the term "property" in the statute includes nonpossessory interests such as easements, and isn't limited to land. The court rejected the court of appeals' view that the use of the term "parcel" in "part of a larger parcel" indicates that the property must be land. No so, held the Supreme Court. "Parcel" may include a nonpossessory property interest. Yes, the meaning of "parcel" includes a tract of land, but also "broadly includes all estates and interests in property, including nonpossessory interests, like easements." Slip op. at 10.

There's a lot more in the opinion, but instead of detailing the court's reasoning here, we urge you to read the entire thing. It's definitely worth it, if only as a refresher on your dirt law basics and as a reminder that yes, easements are "private property" as that term is used in the U.S. and Arizona Constitutions.

Arizona v. Foothills Reserve Master Owners Ass'n, No. CV-23-0292 (Ariz. Jan. 28, 2025)

"I Like Old Property" - We Return To The "Short Circuit" Podcast To Talk Law Of The Land & Magna Carta

You should already know Short Circuit is the Institute for Justice's frequently-updated podcast on important and interesting decisions from the federal courts of appeals (the "Circuit" part of the title, we assume).

If you are not already a regular listener you are missing out, because it is a fantastic and easy way to keep up with what is going on, and to hear insightful analysis.

We've visited the SC studios in the past, and this week made a return visit, joining host Anthony Sanders (Director of the Center for Judicial Engagement), and guest Justin Pearson (Managing Attorney of IJ's Florida offices), to talk cattle feedlots, "new" vs. "old" property, North Carolina's Law of the Land Clause, and methods of constitutional interpretation.

Here's the episode summary, and show notes, from the Short Circuit site:

A long-time friend of the Institute for Justice, Robert Thomas, joins us this week. For years he’s litigated property rights cases across the country, lately for the Pacific Legal Foundation, and also blogged his adventures—and a whole bunch of other property rights news—at inversecondemnation.com. With some years since his last visit to Short Circuit, he comes back to discuss a recent North Carolina case where the legislature revived some claims after a statute of limitations had lapsed. Was that the taking of a “vested right”? The court is unanimous in saying it wasn’t, but how the two opinions got there in different ways is the most interesting part. Then, IJ’s Justin Pearson brings us to the fields—and feed lots—of Minnesota for a retaliation case where a farmer petitioned the state legislature. That leads into a discussion of “old property” versus “new property” and how we should think about their protections. Plus, law students interested in SCOTUS previews being held at their school should reach out to Justin. Those looking for a little “where are they now” can skip to the end. And fans of Thomas Hardy can enjoy the opening.

Register for the Tavern Debate on March 28, 2025 in Westlake Village, California!

RSVP for our 10th Anniversary Party and Show on April 3d in DC!

Wagner v. Scheirer

McKinney v. Goins

inversecondemnation.com

Bound By Oath episode on Pennsylvania Coal

SC episode on the British Constitution

Tess of the d’Urbervilles

Be sure to not only check out this episode, but subscribe to the feed so you don't miss any installments.

"Property Rights and the Roberts Court, 2005-2025" (Feb. 27, 2025, UC Berkeley Law School)

If you are looking for us tomorrow but we don't respond, that's because we'll be in the audience in rapt attention at "Property Rights and the Roberts Court, 2005-2025" at the U.C. Berkeley Law School (fka "Boalt Hall").

Here's the description:

For much of the past century, property rights were relegated to second-class status compared to the rest of the Bill of Rights. However, under the Supreme Court leadership of Chief Justice John Roberts, this trend has begun to shift.

In recognition of the 20th anniversary of the Chief Justice’s elevation to the Supreme Court, Pacific Legal Foundation is partnering with Berkeley Law’s Public Law and Policy Program to host a day-long conference exploring the major property rights developments and future of property rights law in the Roberts Court.

We’ll hear from two different panels of renowned legal scholars and accomplished litigators, as well as a keynote lunch discussion between Richard Epstein, director of the Classical Liberal Institute and law professor at NYU School of Law, and John Groen, executive vice president at PLF. 

A catered lunch will be provided.

Here's the agenda. See you there.

Property Rights and the Roberts Court Agenda (Feb. 27, 2025)

District Court: Fed R Civ P 71.1 Increases Discretion To Exclude Experts. CA4: No It Doesn't

In our earlier post today, we noted that on the same day last month, the U.S. Court of Appeals for the Fourth Circuit issued two published opinions about the admissibility of evidence in federal eminent domain cases under the Natural Gas Act. 

In our post about the other case, we focused on the admissibility of the owner's testimony regarding the value of her land, and noted that the second issue in that case -- the admissibility of expert valuations -- relied on the case we're delving into in this post, Mountain Valley Pipeline, LLC v. 9.89 Acres of Land, No. 23-2129 (Jan. 27, 2025).

These are takings under Fed. R. Civ. P. 71.1. The district court excluded the valuation opinion of the owner's appraiser. That opinion might have passed muster for admissibility under Federal Rules of Evidence 702 and Daubert, but the court concluded that "[t]he gatekeeping role of the district court is particularly pronounced in condemnation proceedings under Rule 71.1." Slip op. at 7.

Two of the three comparable sales relied upon by the owner's appraiser were of properties not encumbered by a pipeline easement (and here the taking is for a pipeline easement), so the expert was unreliable, held the district court. The court also excluded the owner's other appraiser on the grounds that his "conceptual subdivision [his opinion of highest and best use] was not 'legally permitted under the applicable zoning ordinance in the absence of a network of public roads that does not exist.'" Id.

With both of the owner's appraisers excluded, the condemnor sought summary judgment (its appraiser was the only evidence of value), which the district court granted.

The Fourth Circuit held that the district court abused its discretion by assuming that Rule 71.1 "requires it to exercise greater discretion for excluding evidence than would normally be permitted under the Rules of Evidence. That was error. Courts should apply the Federal Rules of Evidence identically in eminent domain cases as in other cases." Slip op. at 8.

Analogously, here, the district court apparently conflated Rule 71.1(h) with Rule 702. Relying solely on the First Circuit’s decision in United States v. 33.92356 Acres of Land, the district court concluded that its gatekeeping role in excluding expert testimony under Rule 702 “is particularly pronounced in condemnation proceedings under Rule 71.1.” 9.89 Acres of Land, 2021 WL 4398032, at *4 (quoting 33.92356 Acres of Land, 585 F.3d at 8). With all due respect to the First Circuit, we disagree. Rule 71.1(h) does not alter the Federal Rules of Evidence in eminent domain proceedings. Rather, the court must first apply those Rules to determine the universe of evidence that it will then use to “tr[y] all issues” under Rule 71.1(h)(1).

Slip op. at 9 (footnote omitted).

The Fourth Circuit concluded that "once the district court makes its initial evidentiary determinations pursuant to the normal Rules of Evidence, it can proceed to the Rule 71.1(h) stage, where it must consider all admissible evidence together." Slip op. at 10 (footnote omitted). The court held that this is an issue of first impression (both in the Fourth Circuit and, apparently, in any federal court), and that the court "must make findings of fact and conclusions of law on the record, as it would in a bench trial." Slip op. at 11.

Yes, "[g]enuine disputes of material fact are typically left for a jury to resolve. But in eminent domain cases under Rule 71.1(h), the drafters of the Federal Rules of Civil Procedure took some contested factual issues from the jury and gave them to the judge." Id. Here's how the court describes how the process should work:

To summarize, a court hearing an eminent domain case should make determinations of evidentiary admissibility using the standard Federal Rules of Evidence. Once it has established the admissible universe of evidence, it may try non-compensation issues under Rule 71.1(h) based on that evidence and should make findings of fact and conclusions of law on the record. The court may grant summary judgment if no genuine disputes of material fact remain. Otherwise, it should exclude evidence inconsistent with its Rule 71.1(h) determinations from the jury trial.

Slip op. at 13-14.

That being established, the court concluded the district court wrongly excluded both of the owner's appraisers. See slip op. at 14-19.

Mountain Valley Pipeline, LLC v. 9.89 Acres of Land, No. 23-2129 (4th Cir. Jan. 27, 2025)

CA4: Owner With Personal Knowledge Can Testify About Value Of Her Land

As the title should inform you, Mountain Valley Pipeline, LLC v. 0.32 Acres of Land, No. 23-1935 (Jan. 27, 2025) is a federal taking. Here, a taking where a private pipeline condemnor is exercising the delegated federal power of eminent domain under the Natural Gas Act.

The issue we're focusing on in this case is the district court's exclusion of the property owner's testimony about the value of her land. As you courtroom lawyers are keenly aware, a judge's decision to allow or exclude evidence is, generally speaking, a discretionary matter and subject to the very deferential "abuse of discretion" standard of review on appeal.

But here, the Fourth Circuit concluded that the district court abused its discretion. Slip op. at 8. We won't be going into great detail in this post, but instead urge you to review the opinion starting at page 8. "The threshold for admissibility of landowner testimony in takings cases is low." Id. As long as there's "a valid foundation" such as the owner's personal knowledge of the land or knowledge of comparable sales, and as long as the testimony isn't speculative or "pulled out of thin air with no basis whatsoever," slip op. at 9, the court should let it in.

The Fourth Circuit also reversed the district court's exclusion of an expert appraisal report, concluding that the district court again abused its discretion by too aggressively gatekeeping. The opinion cited a separate opinion in another case which the Fourth Circuit issued the same day, a case we cover in this post. The bottom line being here is that the district court stated, "[t]he gatekeeping role of the district court is particularly pronounced in condemnation proceedings." Slip op. at 13. 

To which the Fourth Circuit replied, in essence, no it's not:

Here, rather than conducting a traditional analysis under Rule 702, the court stated that “[t]he gatekeeping role of the district court is particularly pronounced in condemnation proceedings under Rule 71.1.” 0.32 Acres of Land, 2022 WL 4091860, at *4. The court therefore identified contested factual issues in the Gruelle Report, disagreed with Gruelle’s view of those contested facts, and determined that these “errors and omissions” rendered the Report entirely inadmissible under the Rules of Evidence. Id. at *5. This was the wrong approach. “Rather, the court must first apply [the] Rules [of Evidence] to determine the universe of evidence that it will then use to ‘tr[y] all issues’ under Rule 71.1(h)(1).” 9.89 Acres, No. 23-2129, slip op. at 9. Thus, the correct inquiry at the admissibility stage is more modest than the one undertaken by the district court below: it should ask only whether the expert’s methodology was reliable and was based on sufficient facts or data, keeping in mind that the expert “need not be precisely informed about all details of the issues raised in order to offer an opinion.” Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (citation omitted).

Slip op. at 13.

Mountain Valley Pipeline, LLC v. 0.32 Acres of Land, No. 23-1935 (4th Cir. Jan. 27, 2025)

Is Having A "Redevelopment Plan" Enough To Justify Public Use Rational Basis Review?

By John C. Mozena

Students of the Supreme Court's infamous-the-day-it-was-decided decision in Kelo v. City of New London know that the legal issue presented and decided by the Court was somewhat narrow, but that the decision had a broad cultural impact such that Susette Kelo's SCOTUS 5-4 loss was merely a precursor to widespread political and moral victories.

Legally narrow issue? Yes, recall that the question presented in that case was whether takings for "economic development" are so particularly untrustworthy and susceptible to abuse that they require the judiciary to depart from the usual rational basis review and cast a more skeptical "heightened scrutiny" eye on what the Court in Berman said was a legislative judgment "well-nigh conclusive," and Midkiff equated with run-of-the-mill exercises of the police power.

The Kelo majority held no, that at least in the case as presented, the taking of a home and neighborhood on the theory that another owner would make a more economically-intense -- and thus publicly beneficial -- uses of these properties did not warrant stricter scrutiny than a taking for other purposes such as a post office or a public road.

The Fort Trumbull condemnations were, after all, part of New London's redevelopment plan the majority concluded, so there was no reason for a court to inject itself into what to the majority appeared to be democracy functioning as it should. Kelo's remedy, the majority implicitly concluded, was to fight it out in the planning process. That she lost there was of no constitutional consequence, them's the breaks. That's democracy, that's life.

Most revealing was the majority's stealth-citation to the Supreme Court decision which forms the basis of land use planning and zoning, and the high degree of deference which the courts pay to zoning decisions, Village of Euclid v. Ambler Realty Co., 72 U.S. 365 (1926). You land users will find the majority's language very familiar:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development,¹² the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

---------------------------------

12. Cf. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 

Takings outside of a plan might be subject to more scrutiny, but here New London had a plan. In other words, using the eminent domain power to deprive an owner of her property and oust her from possession is just like a run-of-the-mill police power zoning, and as long as the taking is part of some "plan," deserves the same judicial deference.

In the time since Kelo, there have been commentary on the necessity of a plan, as well as cases from other courts which focus on the "plan" which a taking is supposedly part of. Necessary? Some say yes, some say no, as do others. Some courts have held that an imaginary plan is ok.

In that vein, check this out, a piece by John C. Mozena, "The Supreme Court's Big 'Kelo' Mistake Was Trusting Economic Development Plans," at the Center for Economic Accountability.

The author dives in and asks whether the Court should have relied on these redevelopment plans as the trigger to rational basis review (or, as the question was presented in Kelo, whether the usual high deference courts pay to legislative judgments about what uses are "public"). Not so fast:

This reliance on government planning and implicit assumption that those plans’ existence could and would result in their planned outcomes showed through in the language Stevens used to describe the future. His opinion referenced a hotel “that will include restaurants and shopping” and “will also have marinas for both recreational and commercial uses,” as well as another parcel that “will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park.” [Emphasis added.]

Stevens was wrong in these assertions. Not only wrong morally and legally, but also wrong factually as there would never be a hotel, restaurants and shopping, 80 new residents or any of the other benefits whose existence he so confidently asserted. The “carefully formulated economic development plan” that justified seizing Susette’s home fell apart almost immediately, Pfizer left town and the land remained vacant for years, famously becoming home to a colony of feral cats instead of buildings full of pharmaceutical researchers.

The Kelo majority's emphasis on a "plan," Mozena writes, incentivized condemnors to produce plans to that shield private purposes and benefits and other non-democratic outcomes "no matter how haphazard or farfetched it [the plan] might be[.]" Mozena goes on to catalog redevelopment/takings plans that never went anywhere, something the great teacher and practitioner of eminent domain law, Professor Gideon Kanner, wrote about in his final law review article, "Eminent Domain Projects that Didn't Work Out," 12 Brigham-Kanner Property Rts. J. 171 (2023).

Will the fact that many of these plans are just pie-in-the-sky have any impact on Justices who believe that the process by which these plans are adopted is more important than the question of whether the plans will actually work? In the land use arena, we haven't seen any indication that judges care all that much about the chances of success of government plans, whether those plans be zoning, planning, economic legislation, or eminent domain. Indeed, courts studiously eschew any role in what is called the "means-end-fit," or whether legislation will "work."

We wish courts would care in eminent domain, even if they don't care generally. There's something different about eminent domain and takings someone's property away, than when the government is merely exercising its police or other power to regulate property, isn't there? Not to the Kelo majority. 

And the usual majoritarian processes by which plans are adopted and someone's property is targeted are not very good at protecting vulnerable owners from a government officials' starry-eyed thinking and economic pipe dreaming.  We think that is where the majority's assumptions were horribly wrong. 

True, eminent domain comes with just compensation. But as Susette Kelo's case starkly illustrated, sometimes the dignity of keeping your property cannot be replaced with money, and courts should recognize and protect that. The Supreme Court's recent decision in Sheetz was a good sign the Court is starting that recognition. There, the Court was in "radical agreement" that just because it is the legislature which imposes an exaction as the price of exercising your constitutional property rights, does not insulate the legislation from the dual requirements of logical nexus and rough proportionality.

One of these days, the Court is going to confront this same vibe in eminent domain.

Don't Get Between California And Its Avocados - Court OK's Inverse Flooding Claim

A short one from the California Court of Appeal, Shehyn v. County of Ventura Public Works Agency, No. B337452 (Feb. 20, 2025).

Bottom line: the court reversed the trial court's demurrer, which had dismissed a flood inverse claim. Good news, the owner gets to press its claim. 

The plaintiff here is the owner of a commercial avocado orchard. The complaint alleged that sediment from the County's water district damaged irrigation pipes on the owner's land, and inversely condemned the plaintiff's property. The trial court sustained the demurrer on the grounds that ... get this ...  the owner "'invited' District water onto his property." Slip op. at 5.

And how did the avocado farmer "invite" the district's water on the property? Apparently by being a water customer of the district. Well, the court of appeal wasn't having any of that, instead viewing the issue as whether the plaintiff alleged it was singled out to bear a disproportionate burden. The court distinguished a case where the court rejected an inverse claim where the owner claimed the water district added an antibacterial agent, which corroded copper pipes:

We do not read this case as creating a brightline rule barring inverse condemnation claims for damage caused by “invited” water, or, stated differently, as limiting inverse condemnation to damages caused by flooding. The premise of inverse condemnation remains whether a property owner bears a disproportionate share of the costs of a public improvement. The homeowners in Williams failed to clear this hurdle because they received the same water as the district’s other customers—not because they consented to that water entering their homes. The court discussed the latter point only in the second part of its analysis, where it rejected the homeowners’ argument that their case was “‘conceptually indistinguishable’” from established lines of authority involving bursting or leaking utility pipes. (Williams, supra, 22 Cal.App.5th at p. 1211.) We also hesitate to perpetuate a broad exclusion that might catch meritorious claims in its net. What if the homeowners in Williams, for example, received chloramine in higher concentrations than other homeowners in the same system. Should turning their taps preclude them from bringing an inverse condemnation claim? We think not. They are customers of a state-sanctioned monopoly who must choose between receiving their utility’s water or none at all.

Slip op. at 6-7.

Shehyn v. Ventura County Public Works Agency, No. B337452 (Cal. Ct. App. Feb. 20, 2025)

Ind App: Eminent Domain Abuse Is [Also] Abuse Of Process

What does a property owner do if she believes that the government's eminent domain lawsuit is abusive? Is the remedy limited to the four corners of the eminent action (i.e., a counterclaim, third-party claim, etc.), or may a landowner institute a separate action which includes a tort claim for abuse of process? 

In Indiana Land Trust #3083 v. Hammond Redevelopment Comm'n, No. 24A-PL-1284 (Jan. 31, 2025), the Indiana Court of Appeals held that because the remedies in an eminent domain case and an abuse of process case are different, the owner may press claims that the "taking was for 'discriminatory private purposes, for private gain, motivated by spite and/or that it is against public purposes[.]'" in a separate abuse of process lawsuit. Slip op. at 5. 

Here's the order of events:

• Redevelopment agency instituted an eminent domain case in state court to take owner's property as part of a redevelopment project.
• In that case, owner counterclaimed and instituted a third-party complaint which included allegations that the taking was abusive.
• The redevelopment agency objected to the third-party complaint on the grounds that "Indiana’s Eminent Domain Act does not permit any pleadings in eminent domain actions outside of the complaint, objections, and written exceptions." Slip op. at 3.
• At some time in this process, the owner filed a separate state court lawsuit against the condemnor, alleging pretty much the same thing as the counterclaim and third-party complaint. The condemnor removed the case to federal court.
• The state trial court dismissed the owner's third-party claim, on the basis that the owner could press these claims in the now-federal lawsuit. 
• But the federal court dismissed the owner's complaint, and the Seventh Circuit affirmed holding, "'[t]he eminent domain action is playing out in Indiana state court[.]'" Slip op. at 5.
• Next, the owner filed another state-court action for, inter alia, abuse of process.
• Redevelopment agency sought dismissal on the grounds that the allegations of abuse of process (which included allegations of a private benefit taking and related) could only be raised in the pending eminent domain action, and the trial court agreed.

The court of appeals reversed. It focused on the nature of an eminent domain action, and the tort of abuse of process, zeroing in on the remedies available in each case. 

Based upon their complaint, Landowners essentially alleged that the eminent domain action was substantively improper, they raised questions of fraud and bad faith, and they alleged that the proceeding was a subterfuge to convey the Property for a private use. Given the procedural posture of this case and the expansive definition of process that includes both procedural and substantive elements and mindful that we view the pleadings in the light most favorable to Landowners and construe every reasonable inference in their favor, we conclude that Landowners raised a question that is a proper subject for judicial review and sufficiently alleged a claim for abuse of process. The trial court erred in granting Defendants’ motion to dismiss.

Slip op. at 22.

It looks like a lot turned on "[g]iven the procedural posture of this case," and the trial court's earlier rejection of the owner's attempt to raise similar issues in the condemnation lawsuit. Nonetheless, we think there's a lot there worth understanding, with the bottom line being, yes, you can (and perhaps should) raise these type of objections in a separate claim or suit. 

Indiana Land Trust #3082 v. Hammond Redevelopment Comm'n, No. 24A-PL-1284 (Ind. Ct. App. Jan. 31,