A new article worthy of your time from The Urban Lawyer, the law review published by the ABA Section of State and Local Government Law: "The Power of Eminent Domain in the Aftermath of Hurricane Katrina: Should Common Interest Communities Be Compensated for the Loss of Asssments," by James R. Conde.
The article (rightly, we think) criticizes the Fifth Circuit's decision in United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), a case we wrote up here. The Supreme Court denied review,
Here's the abstract of the article:
In 2005, Hurricane Katrina flooded New Orleans and destroyed approximately 80% of the city’s housing stock. The New Orleans flood generated a corresponding flood of litigation against the Army Corps of Engineers (the “Corps”). After the storm, Congress took steps to repair the Corps’ impaired reputation and to provide disaster relief to New Orleans residents. Congress appropriated $14.45 billion in funds to improve the city’s hurricane infrastructure, including several canals. While the Corps was building an interim pumping station in 2006, the United States filed a declaration to condemn fourteen individual lots situated in the Mariner’s Cove Townhomes residential subdivision in order “to facilitate … access to the pumping station on the canal.” In the condemnation proceedings that followed, the Mariner’s Cove Townhomes Assn., Inc., a homeowner’s association servicing the subdivision, intervened alleging a “taking” of its right to levy assessments. The Court of Appeals for the Fifth Circuit eventually denied the Association compensation for the loss of assessments. This article argues that the Fifth Circuit’s holding in Mariner’s Cove is likely incorrect as a matter of law and that its reasoning is unpersuasive. Part I discusses the relevance of the Mariner’s Cove litigation to Common Interest Communities and condemnation claimants more generally. Part II discusses the Mariner’s Cove opinion. Part III surveys the contemporary Takings Clause doctrine, emphasizing aspects relevant to the Mariner’s Cove litigation. Part IV analyzes the legal and public policy arguments against granting compensation. The article concludes by arguing that public policy supports granting compensation for assessment covenants.
Check it out. While you are at it, the other articles in this edition of Urban Lawyer may also be of interest: RLUIPA ripeness, Land Use ethics, Post-Koontz developments in exactions law. You might have to be an ABA member to access the full article pdfs, but if you are not a member of the State and Local Section, you may want to consider joining us, since a print and pdf subscription to the Urban Lawyer comes free with Section membership.
