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Professor Kanner's Final Article: "Eminent Domain Projects That Didn't Work Out," 12 Brigham-Kanner Prop. Rts. J. 171 (2023)

Here it is -- Professor Gideon Kanner's final law journal article, published shortly before his passing:

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Prop. Rts. J. 171 (2023).

Appropriately, we think, published in William and Mary Law School's Brigham-Kanner Property Rights Journal, named in part in Gideon's honor.

This isn't a typical law journal article, but an essay collecting Professor Kanner's thoughts, comments, and (best of all) opinions on, well, eminent domain (and redevelopment) projects that didn't work out.

In Gideon's own words, from the Introduction:

But whether you favor widespread use of eminent domain or not, and whether the projects created by its use are sound or not, it is deplorable that the power of eminent domain has been often deployed to the detriment of racial and politically powerless minorities. Typically, redevelopment projects tend to displace middle class and poor people from their homes and businesses but provides parsimonious compensation that falls short of indemnity. The displaced people are limited by the courts to recovery of “fair market value” of their real property, which fails to include compensation for a variety of economic losses inevitably inflicted when people are involuntarily displaced. To add insult to injury, while talking glibly about indemnity, courts do not provide it and have not explained the reasons for this state of affairs. Too often they rely on factually unsupported lamentations—“fearful guesstimates” as one commentator put it—that full, realistic  compensation would be too expensive or even cause an “embargo” on public works, as the California Supreme Court once asserted.

What follows is a sampling of cases that failed to live up to their planners’ projections, including but not limited to redevelopment projects. The latter are particularly egregious because the linchpin of their success is a process of generating private gains for the private parties chosen to participate in those projects, while undercompensating the displaced populations of the areas targeted for redevelopment. Thus, the benefits, if any, of such projects are attained, if at all, on the back of condemnees, in violation of the principle that such costs should be fairly spread on members of the society that benefits from them and disproportionally imposed on people in the path of those projects.

Thank you to the editors of the Brigham-Kanner Property Rights Journal for publishing it, in its unfiltered form.

Disclosure: I helped edit the piece, and Gideon even asked if it was worthy of publication (as if!). He described it as his "last" article collecting his collective thoughts. Yes, I responded, let's work on this and get it out for everyone to read (although I was secretly hoping that was not his final work). One of our University of Hawaii Law School Land Use students, Pono Arias, even volunteered his time and efforts as Gideon's Research Assistant and tracked down citations, made helpful edits and suggestions, and got the piece ready to go. We're grateful for Pono's work on this, as was Professor Kanner.

So here it is, Professor Kanner's last publication. When you read it, I am sure that - like me - you will hear it in your head in Gideon's voice.

And that's a good thing.

Gideon Kanner, Eminent Domain Projects That Didn't Work Out, 12 Brigham-Kanner Property Rts. J. 171 (2023)...

NY App Div: OK To Condemn Blighted Property To Sell To Private Developer

The New York Appellate Division's opinion in Huntley Power, LLC v. Town of Tonawanda, No. 22-011460 (June 9, 2023), is typically short (6 pages, including a dissent).

The town instituted eminent domain proceedings to take Huntley's riverfront property, including an electric plant decommissioned in 2016, and water intake structures. The asserted public use is "revitalizing and redeveloping the former industrial property, which was a blight on the Town, and maintaining the critical raw water supply to significant industrial employers in the Town[.]" Slip op. at 2.

That was enough for the court to "reject reject petitioner’s contention that the condemnation will not serve a public use, benefit, or purpose[.]" Id. Rational basis, and so forth.

Nor was the condemnation "excessive," because it allegedly took more than it needed." There's no obvious abuse -- or at least any abuse that would qualify as an abuse of discretion. Slip op. at 3. The court also rejected the argument that the Town's "stated purpose for acquiring the property manifests and intent to engage in constitutionally-prohibited private enterprise because the Town intends to sell the property to a private developer." Id. No big deal here, because the "taking of substandard real estate by a municipality for redevelopment by private corporations has long been recognized as a species of public use." Id. (citation omitted).

One Justice dissented from a part of the court's conclusions. The dissenter would have analyzed the takings separately, the first being the taking of the decommissioned electric plant is located. That taking is ok, and serves a public use and purpose for the reasons noted above. But the second taking -- of the intake structures along the river -- is another matter:

The majority finds that second taking to be lawful, but I do not.

Prior to the closure of its power plant, petitioner used theintake system to withdraw millions of gallons of untreated water to provide cooling for its generating units. Since closure of the plant, petitioner has allowed local businesses—specifically, Evonik LLC, Sumitomo Rubber Corporation, USA, LLC, and 3M Company—to obtain water for industrial uses from the river through its intake bays and screening facilities. Petitioner has granted easements and licenses to Evonik and Sumitomo to maintain pump houses and water lines on its property to facilitate the withdrawal and distribution of raw water, which is far less expensive than the treated water that the businesses would otherwise have to purchase for their manufacturing processes. The Town proposes to take petitioner’s water intake structures for the purpose of ensuring that local manufacturers have access to inexpensive raw water. Without that access, the Town asserts, there is a danger that the businesses will relocate out of the area, resulting in a loss of local jobs and tax revenue. But the Town’s proposed use of the water intake structures is no different than the existing use by petitioner, and there is no indication in the record that petitioner will refuse to continue providing water access to local businesses. Indeed, the money paid by the local manufacturers for the licenses and easements is the only revenue petitioner realizes from the property.

Slip op. at 5 (Lindley, J., dissenting in part).

The dissenting Justice concluded, "[i]n my view, the takings clauses of the Federal and State Constitutions do not permit the government to take land through eminent domain and use it for the exact same purpose for which the landowner is already using it." Id.

More on the decision here  from the Buffalo News ("Court upholds Tonawanda's right to take over long-shuttered Huntley power plant").

Huntley Power, LLC v. Town of Tonawanda, No. 22-01460 (N.Y. App. Div. June 9, 2023)

Catholic U Law School Student Scholar: "Eychaner v. City of Chicago: Repercussions after The Supreme Court refuses to take up a Takings Clause Reconsideration"

Remember that case from a couple of years back, where the Supreme Court, by a tantalizingly close vote, declined to grant a cert petition seeking review of an Illinois decision that preventing future blight was a sufficiently public use to support a redevelopment taking? 

A law student at Catholic U. law school recently made a presentation on the case and the issues as part of the Student Scholars Series, and the law school has kindly made the video available. More here.

We think it is fantastic both that law students are examining these issues, and that the law school encourages and promotes their work. It gives us comfort for the future of the profession, and the Dirt Law Bar.

Well done, Mr. Tocchio!

Cases And Links From Today's Land Use Institute Session: "The Use of Eminent Domain for Redevelopment & Economic Development Projects"

Here are the opinions that we spoke about this afternoon at the Land Use Institute on "The Use of Eminent Domain for Redevelopment & Economic Development Projects."

• Redevelopment: You Can't Just Say "Redevelopment" - Take Now, Decide Later Isn't A Public Use
• Due Process: Before Taking Property, Condemnor Must Provide Notice Reasonably Calculated To Put The Owner On Actual Notice
• Scope of delegation: A Hospital Parking Lot Isn't An Authorized Reason To Take
• Necessity: No Necessity: Landowner Met Burden - Condemnor Did Not Consider Other Sites
  
• After the taking: First Circuit: "[T]he Fifth Amendment precludes the impairment or discharge of prepetition claims for just compensation in Title III bankruptcy."

Thanks for joining in.

Ice Ice Baby: A Report From The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

We were eagerly anticipating 40th American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference. The 2022 Conference in Scottsdale was one of the first meetings where everyone was back in-person (and was a smashing success), but that conference was early in the game so not everyone could or would attend. But in the past year most of us got back to some semblance of "normal," and the turnout promised to be good.

We had record registrations: with over 300 attendees, faculty, and staff signed up, things were shaping up.

Plus, we were headed to Austin, Texas. The last time we held the Conference there in 2016, we loved it so much it has been in-demand for a return visit. And this year is the debut Conference for some new planning co-chairs for both the main tracks as well as the "Condemnation 101" tracks, so the buzz for the 2023 Austin Conference was building.

But then the weather reminded us that Mother Nature is often the boss. 

Very Icy Austin on Wednesday (Conference Eve).

On Tuesday, one day before the Conference was to get underway, the 2023 Central Texas Ice Storm blew in and things were gonna get (as they say) "challenging."

Austin Airport effectively shut down with few flights in or out. Planes and cancellations stacked up nationwide. And even for those nearby, slick icy roads, and seemingly everything was closed, from gas stations to hotels to restaurants. Widespread power outages. 

Were we ready with Plan B if people couldn't get on-site? Read on.

Unless you are already here or are driving,
you ain't getting to Austin via AUS any time soon, pard.

Even flying from sunny California was a problem.

Ticket agent: Austin flight cancelled. How about flying to Houston and then driving?

Me: Sure, that'll work. Just get me to Texas and I'll figure it out from there.

Improvise, adapt, overcome: planes, trains, and automobiles (and car rentals, and long-distance rideshares, and four-layovers-from-Boise flights). Jacksonville to Austin via Chicago and Nashville.

Although those of us who made it to Austin were receiving widespread reports of people delayed and rerouted, we had only a handful who said they would not be pressing forward to get here. 

When this is what greets you when you arrive
at your conference site...uh oh.

And yes, Austin was cold and icy. Most things shuttered and widespread loss of power. But the Conference venue was up and running, and throughout the day on Wednesday, faculty, staff, and attendees were showing up. Trickling in, but showing up or on the way.

When this is what you see at the United Airlines
luggage counter, you ask yourself:
Can I make my presentation in a t-shirt and sweats? (Yes!)

We had confidence, and were prepared
for everyone to get to Austin.

So the aforementioned Plan B went into effect. Agenda items shuffled from tomorrow to today because the speaker is here, now. One speaker in the room, one speaker remote. Our audience is full of experts ... say, Billy can you pinch-hit on this panel? Sure. One speaker remoting in from his (unexpected) hotel room in Phoenix and presenting, before he went to the airport in the afternoon to continue on to Austin.

And so forth. Our long-time ALI-CLE Program Attorney, Amy Weinberg (who was delayed out of Philadelphia) was working furiously behind the scenes doing a lot of juggling, updating, texting and calling, and making alternative arrangements. And the tech team from ALI-CLE was preparing for overload if needed.

Plan A: continue to set the room up, assuming everyone is here or on the
way, and we'll have most or all of our people in the room.

Our Planning Chairs were ready, even if not
all of us were actually there (yet).

Plan B: the ALI-CLE technical crew was prepared to livestream
and record the Conference if the weather made travel
to Austin impossible or infeasible.

The tech command center.

Before we go on, a big thank you to our generous sponsors.
Without your support, this Conference would not be as
good as it is, year after year.

We're underway, with a pretty good crowd.

Thursday morning, 9:00 a.m., and we're looking not too bad. A fair number of folks have pressed forward despite the weather and travel disruptions and are in the room. More report they are not tapping out, and are pressing onwards.

We have more viewers remote than we originally anticipated, but the tech is holding up.

Over the next couple of days, our lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals made their way to Austin.

The fact that folks who were experiencing some rather dramatic travel difficulties and delays (ask Jack about his late night Uber from Houston airport to Austin, or how our west coasters got re-routed all over creation), didn't quit but were determined to get to Austin told us something about why this Conference has been so successful over the decades.

It's more than great programming from the nation's experts. The Conference is also an essential venue to get acquainted with new colleagues and welcome them to the Dirt Law Bar, reconnect with long-time friends, and have a bit of fun together.

Most of the Conference attendees eventually made it, and very few (reasonably) threw in the towel and turned around for home. This was the 40th edition of the Conference, and we really know why it is one of the most-established and successful conferences in the ALI-CLE stable of programs. This year's experience really drove home why we come, and why our attendees and faculty are so dedicated and committed, despite the sacrifices we make to attend or to present. 

Hybrid: Pacific Legal Foundation's John Groen
remoting in while en-route via Phoenix, and
Baylor lawprof Jessica Asbridge on
"Everything Old is New Again: Why Today’s Practitioners
Need to Understand the Original Meaning of the
Takings and Just Compensation Clauses."


The "Condemnation 101" track was wildly popular
both with new members of the Eminent Domain Bar,
as well as old hands. Standing room only throughout the day.

We also had reports from the field that the remote viewing
was going well. Here's how we looked in the
mountains of North Carolina.

Let's not forget the substance of the Conference.
Lots of practical learning. Here's Hawaii's Mark Murakami
and Virginia's Steve Clarke on "Avoiding the Real Jeopardy:  
Structuring Eminent Domain Settlements."
And no, two-time Jeopardy! champion Steve did not
give answers in the form of a question.

Weather throughout Wednesday and Thursday was icy and nasty,
but towards the end of Thursday seemed to be clearing up.

Consequently, the view from the podium looked better and better
with more showing up and more reporting they were nearly there.

The programming at the Conference is traditionally
a mix of practical subjects and the more theoretical.
Here's one of the highlight latter programs,
Alan Ackerman (Michigan), Matthew Ackerman (also Michigan),
and Steve Davis (Missouri) on "What Does the Supreme Court
Mean When it Says Just Compensation is “Self-Executing?"

There's an ethics program, naturally, for those of us in jurisdictions
with mandatory CLE requirements. But we try and not do "typical"
(i.e., boring) ethics programs. Here's Sarah Kellner (Colorado) and
Shane Rayman (Ontario, CN) on "Ethics: Building Your Practice
by Mentoring the Next Generation of Eminent Domain Professionals."

An example of our practice-oriented programming: Tony DellaPelle
(New Jersey), Bernadette Duran-Brown (California), 
and Andrew Lines (Illinois) on "Preparing Your Expert
Witness to Shine in Virtual Proceedings:
Tools and Tips For Trial Lawyers." 

Andrew actually pretended he was far, far away for his "deposition"
when he was in fact one floor up from the Conference room.
Way to go all-in.

Thanks to our generous sponsors, we were able to avoid Austin's
icy roads and have our Mickelthwait barbecue
brought in for lunch. Was it well-received? See for yourself. Line
was through the lobby and nearly out the front door.

Thank you to Texas Supreme Court Justice Jimmy Blacklock
for speaking on "Developing Property Right Issues in Texas,
Questions and Answers with Justice Jimmy Blacklock"
(interviewed by Justin Hodge (Texas)

It was not an echo-chamber either. Here, in a hotly-debated
session, Jeff Redfern (Virginia), Steve Silva (Nevada), and
Lawprof Emilio Longoria (St Mary's Law, Texas)
debate "When the SWAT Team Comes (No) Knocking:
Police Power Takings."

Jeff, Steve, and Prof Longoria's session got everyone's blood pumping.

It wasn't all serious, and we had a bit of fun.
Like this after-hours live edition of the Eminent Domain & Right of Way
Clubhouse with Beth Smith (Wisconsin), Patrick McAllister (Indiana)
and some dude who was having a post-CLE session beer.

Some of our faculty are more formal and like to speak
standing at the lectern. Here, Pacific Legal Foundation's Jon Houghton
(New Jersey) and Ben Stormes (Montana) on
"Avoiding Pitfalls When Trying a Penn Central Case:
Lessons From the Takings Trenches."

Others are less formal, and speak while sitting
(and wildly gesticulating to make sure you are paying attention).
Kristen Renfro (California), and some guy on
"Your Regulatory Takings Case is in Federal Court – Now What?"

By Friday morning, the Austin weather was looking up. Really up.
And we nearly had everyone in the room.
By hook or by crook, most everyone was there.

By Friday were were pretty much back to normal.
Nearly all faculty and all attendees in the room.
And thus we turned it over to our Saturday morning stalwarts,
starting with Jim Burling, here speaking about "The Many Theories of
Property - Do They Matter in Court?" (and Pufendorf)

No one wanted to miss Michael Berger's "Regulatory Takings Update"
on Saturday morning either.

When you can fill this many seats at a CLE conference on a
Saturday morning after two full days of programming,
you know your speakers are the
right ones (thank you Jim and Michael).

After Jim and Michael did their thing, we held our "National Forum,"
a moderated "open-mic" session where Conference attendees
take to the podium and speak about their case or issue,
or crowdsource a question. Here, Pacific Legal
Foundation's Kady Valois, speaking about
our firm's latest takings cert grant.

We were happy to announce that the 41st ALI-CLE Eminent Domain &
Land Valuation Litigation Conference will be held February 1-3, 2024,
at the JW Marriott in New Orleans.
Save the date!

Ivy Cadle (Georgia - Go Dawgs!) is already planning his trip to
#EminentDomain 2024 in New Orleans.
See you there, Ivy.

With the programming wrapped up, it was time for farewells
and thank yous. Here, four of our law students from William and Mary Law,
who took the time out of their schedules to make their way to
Austin for some real-world learning and networking.
Well done, new colleagues!

Even after the proceedings closed, there was more work to be done.
Here, the ALI-CLE Tech Team breaks it down, after successfully
guiding us through the past four days. They are a large part of the
reason why this Conference works so well (plus, they make the
speakers look really good on camera).

To those who joined us - in-person or on-line, thank you. This conference reminded us of why this program is so successful, and why we all return year-after-year.

To those of you who didn't (or couldn't) join us, here's what you missed. You need to remedy that, and come join us next year in New Orleans...

We'll see you in New Orleans for
#EminentDomain2024!
(Want to keep the conversation going in the
interim? Join the ALI-CLE Eminent Domain Conference
page on LinkedIn.)

(Nearly) Last Call: There's Still Time To Join Us For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, Austin

We really want you there...

One (nearly) last reminder that there's still time to register for your space at the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 1-4, 2023, in Austin. In the past several years, we have sold out due to the conference room capacity and the conference hotel block. But there's still space, although we are nearly full. So register now - don't delay any further! 

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses
  
• When the SWAT Team Comes (No) Knocking: Police Power Takings

• Private Utility Takeovers – Lessons From a 67 Day Trial

• "Contraband": How Property Rights Helped Pave the Way for Civil Rights

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Preparing Your Expert Witness to Shine in Virtual Proceedings: Tools and Tips for Trial Lawyers

• Developing Property Right Issues in Texas - Questions and Answers from the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• the Condemnation 101 program (a one-day course for those new to the practice, or for experienced practitioners wanting a refresher)
• ...and much more!

To register, go here.

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

You Can't Just Say "Redevelopment" - Take Now, Decide Later Isn't A Public Use

A classically short opinion from the New York Supreme Court (Appellate Division, Fourth District) in HBC Victor LLC v. Town of Victor, No. 683 (Dec. 23, 2022). (So short that we were tempted to simply post the opinion and let you read it, because it will probably take you just as long to read our summary; but we're up to the challenge of making our summary even shorter than the opinion, so here goes.)

The town wants to take property "connected to an enclosed regional shopping center known as Eastview Mall[.]" Slip op. at 1. Until Co-19, the property was occupied by a retail department store, but the store closed permanently in February 2021. The owner tried to get a new tenant, but unsurprisingly, that came up short.

Perhaps sensing an opportunity, the Town sought to condemn for redevelopment. But its resolution of taking did not specify what it wants the property for:

"[t]he proposed Acquisition is required for and is in connection with a certain project . . . consisting of facilitating the productive reuse and redevelopment of the vacant and underutilized Proposed Site through municipal and/or economic development projects . . . by attracting and accommodating new tenant(s) and/or end user(s)."

Slip op. at 2.

Even in condemnor-friendly New York, this one should raise a red flag. But not enough: "[i]n its determinations and findings, the Town stated that 'no specific future uses or actions have been formulated and/or specifically identified." Id.

When you draft your findings like that, condemning agency, shame on you. (Kudos, however, for your honesty.)

Pointing to a recent similar case by the Second Department, the Appellate Division concluded that "[b]ecause the Town has not indicated what it intends to do with the property, we are unable to determine whether 'the acquisition will serve a public use.'" Slip op. at 2. The public use for the taking is determined at the time of the taking, and simply speculating that the taking will produce future public benefits isn't enough:

In simple terms, the government cannot take your land and then decide later what to do with it without running afoul of the Takings Clause of the Fifth Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment.

Slip op. at 2. 

The court rejected the Town's argument that it doesn't need a particularized plan, and the government can take property for redevelopment even if it hasn't yet decided how the property will be used. The court first noted that "the Town professes to have no idea what it intends to do with petitioner's property." Slip op. at 3. It might even transfer the property to the owner of the adjoining shopping mall. "Again, unless and until the Town says what it plans to do with the property upon taking, we cannot determine whether the taking will serve a public use." Id.

And there's no indication or claim that the property here is blighted, even under New York's notoriously low standards for blight:

To the contrary, the evidence at the public hearing established that petitioner has cleaned and maintained the premises since the Lord & Taylor vacancy and continues to pay property taxes at the assessed value of more than $4,000,000. We do not equate mere vacancy with blight, especially when the vacancy occurs unexpectedly in the midst of a global pandemic.

Slip op. at 3.

Taking invalidated; attorneys' fees to the owner.

Think the Town will have another go at it? If so, think it'll draft the resolution the same way (or will it heed Justice Scalia's Lucas dictum)?

HBC Victor LLC v. Town of Victor, No. 683 (N.Y. App. Div. Dec. 23, 2022)

Here's The Program For The 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Feb 1-4, 2023, Austin

Here it is, the official agenda and program for the 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, February 2-4, 2023 (with a special event the evening of Wednesday, February 1, 2023 to entice you to arrive early).

Here's the brochure with the complete agenda, schedule, and faculty listing. But to tempt you, here are some of the highlights of the program:

• Everything Old is New Again: Why Today’s Practitioners Need to Understand the Original Meaning of the Takings and Just Compensation Clauses

• Private Utility Takeovers – Lessons From a 67 Day Trial

• Valuation Issues When Billboards and Signs are Condemned

• Setting Client Expectations and Identifying Red Flags

• Developing Property Right Issues in Texas - Questions and Answers from the Bench: A View From the Bench (with Texas Supreme Court Justice Jimmy Blacklock)

• Eminent Domain and Regulatory Takings Updates: Important Decisions You Need to Know

• Ethics: Building Your Practice by Mentoring the Next Generation of Eminent Domain Lawyers

• ...and much more!

To register, go here.

Register now and hold your space. In the past several years, we have sold out due to the conference room capacity, and the conference hotel block. So don't delay. 

Looking forward to seeing everyone in Austin for the 40th edition of the Conference.

Program Brochure, 40th ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Austin, Texas, Feb 1-...

Links From CRE's "Supreme Court Update: Is This Property's Moment?"

Here are the links to the cases and other materials that we mentioned (and some we didn't) earlier today at the Counselors of Real Estate's program on "Supreme Court Update: Is This Property's Moment?" Thank you to our colleagues at CRE for including us in the program.

I.  The evolving ground rules

• Takings cases can go to federal court:
  • Condemnation: PennEast Pipeline Co. v. New Jersey (eminent domain and the 11th Amendment)
  • Inverse and regulatory: Knick v. Township of Scott (opening back up federal courts to takings claims).
• How you define the “property” taken is key:
  • Murr v. Wisconsin (the larger parcel issue, applied in regulatory takings cases).
  • Koontz (money as property ... and exactions).
  • Brandt (easements, vel non)
• The exclusion “stick” is really important:
  • Any distinction between “permanent” and “temporary” takings is a matter of valuation, not liability: Cedar Point Nursery v. Hassid. 
  • Horne v. USDA (II) (California raisins and physical invasions)
  • Arkansas Game (physical invasions, again).
•  Remedies:
  • The remedy for a “taking” isn’t limited to just compensation: Horne v. USDA (I).
  • Winter v. Natural Resources Defense Council, Inc. (preliminary injunctions, diesel-electric submarines, and Pearl Harbor).

 II.  Issues on the horizon

• Compensation and timing:
  • what to do when the condemnor doesn’t promptly pay up?
  • what is the date of valuation?
• Ability of condemnor to define the taken property:
  • Is there an obligation to value severance damages?
  • Fee take vs easement.
  • Temporary vs permanent.
• Does the Constitution protect property’s use, or value? Police power or takings?
• Whither Yee and the future of the physical occupation rule.
• Are eviction moratoria “takings?”
• Can you really get to federal court and stay there?
• The undivided fee rule ... constitutional?

Join Us For The 39th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Jan 26-29, 2022 (Scottsdale, AZ)

All the topics you want to know about, presented by top-notch faculty from across the nation. Sessions include:

• Property Rights as Civil Rights
• Eminent Domain National Update
• Just Relocation: Understanding the Law and Regulations to Ensure Fairness
• Challenging Public Use: Lessons From a 67-Day Trial
• COVID Takings
• Federal Court and the Daubert Challenge: How to Prepare
• Did the Supreme Court Signal a New Direction in Property Rights in Cedar Point Nursery?
• How to Position Your Client for the Fallout When Projects Don't Get Built
• Rural Broadband and the Emerging Constitutional Challenges
• Are Precondemnation Entry Statutes Still Valid After Cedar Point Nursery?
• How Condemnor and Property Owners' Counsel Prepare the Battlefield
• How Will the Trillion Dollar Infrastructure Bill Impact Your Practice?
• Ethics
• ...and more, including a full slate of networking and social events!

We've sold out the last few years, so don't miss out. Room block now taking reservations. Registration and agenda information here.

Join us in Scottsdale in January!

Links From Today's ABA RPTE Session

Our thanks to our friends and colleagues at the ABA Section of Real Property, Probate & Trust Section's Land Use and Environmental Group for inviting us to a discussion of the latest and greatest decisions of interest.

We only had an hour together, so naturally could not cover everything of interest (indeed, we reserved a big discussion of the biggest item, the Supreme Court's decision in Cedar Point, assuming that the Group will schedule a full session on that decision alone). So here is our curated list of what we think are the most interesting recent decisions in areas of interest to the Group:

• Land use and short-term rentals: Euclid Lives! Mass SJC: "Short-Term" Rental Is Not A Permissible Primary Use In A Residential Zone Because Not Of "Residential Character"
• Environmental standing: Iowa: No Standing To Ask Court To Rule That Public Trust Doctrine Requires Legislation To Regulate Farmers
• Environmental standing, part 2: Hawaii Supreme Court: Anyone Claiming That An Affordable Housing Project Might Impact Their Property Interests In A "Clean And Healthful Environment" Has Standing To Object
• Exactions (sorry we didn't get to this one in the session, but here it is anyway because it is a good case to review): Ordinance Requiring Developer Pay For "All Necessary Road Capacity Improvements" Violates Nollan/Dolan
• Public use in eminent domain: So Close: SCOTUS Declines To Revisit Kelo (For Now) (a taking to remedy potential future blight is a "public use")
• Public use in eminent domain, part 2: Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• Just compensation in eminent domain: Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)
• Regulatory takings, emergencies, and necessity: Fourth Circuit: No Taking When Aerial Pesticide Spray Killed Bees ... But Not Why You Think

Thanks again, colleagues.

We Pay A Return Visit To The Eminent Domain Podcast To Talk Takings

In which we pay a return visit to Clint Schumacher's Eminent Domain Podcast to catch up with Clint about our new gig, Cedar Point (briefly, since the opinion came down the day we recorded the podcast), just compensation and attorneys' fees, assessing severance damages in appraisals supporting jurisdictional offers, public use, and our favorite cool courthouses (let's just say that they range from historic courtrooms to converted doublewide trailers).

If you are not already a regular listener to the Eminent Domain Podcast, you should be! It's a great one-stop convenient way to keep current on the latest goings-on in the takings business. 

Links From Today's Oregon Eminent Domain Conference

Earlier today, I presented the "National Takings Update" at The Seminar Group's Eminent Domain in Oregon conference. It was good to see old friends and colleagues again, even though on-screen and not in-person. Hopefully next time we'll all be able to join together.

Here are the links to the cases we discussed that are not in your written materials (mostly because they were issued after I submitted my materials):

• Ill App (unpub, unfortunately) Strikes Down Taking For Road To Be Owned By The Public
• California Trial Court: No Greater Public Interest In Town Seizing Private Water Company To Operate It Itself (Generic "Vision Statements" Don't Count)
• Listen (Or Read) As SCOTUS Hears Arguments In A (Sorta) Eminent Domain Case
• What If A Court Invalidates A Taking, But They've Already Taken It?
• How "Res Judicata" Is A Failed Condemnation?
• Sixth Circuit Says No To Res Judicata As The Latest Williamson County Workaround
• New Law Review Article (Ours) - "Evaluating Emergency Takings: Flattening the Economic Curve," 29 Wm. & Mary Bill of Rights J. 1145 (2021)
• Louisiana SCT: No Statutory Attorneys' Fees For Pipeline Taking - But LA Constitution's Just Comp Clause Requires Owners Recover "The Full Extent" Of Their Loss (Which Includes Fees)

Until next time!

Mass SJC: New And Improved Means For Blight Elimination Uses Old And Worn Method: Eminent Domain

Under a Massachusetts statute, local redevelopment agencies have the power to respond to "decadent, substandard, and blighted open areas" either by creating an urban renewal project (redeveloping an area pursuant to a "detailed" and "comprehensive" plan; the statute expressly includes the power of eminent domain for urban renewal projects), or by a "demonstration" development (a term not defined by the statute, and therefore lacks an express delegation of eminent domain power).

In Cobble Hill Center LLC v. Somerville Redev. Auth., No. SJC13028 (Apr. 22, 2021), the Supreme Judicial Court addressed an issue left open the last time it dealt with the power of redevelopment agencies: do they have the power to take property by eminent domain when they choose to undertake a "demonstration?" 

Cobble Hill had intended to do its own private redevelopment on its vacant property in Somerville, Massachusetts. But due to some internal disputes, construction never began and its permits lapsed. The Somerville Redevelopment Authority adopted a "Demonstration Project Plan" as part of its wider revitalization plans for the area. Part of that demonstration included taking the property from Cobble Hill by eminent domain by quick-take.

Cobble Hill sued, arguing that the SRA lacks the power to take property for demonstration projects. The trial court disagreed, concluding that the property could be taken, and after Cobble Hill appealed, the SJC transferred the case on its own motion.

Reviewing the language of the statute, the SJC concluded that the language is plain, and includes the power of eminent domain to carry our "any of" a redevelopment authority's actions. Slip op. at 9. The court rejected the property owner's argument that the statute's declaration of the purpose of redevelopment agencies does not expressly include the power to take property when the agency chooses to do a demonstration project and not an urban renewal project. The statement of purpose, the court concluded, "is not a comprehensive restatement of the act." Slip op. at 11.

And don't take the legislature's silence so seriously either, the court held. That the legislature expressly included the power of eminent domain when an agency is redeveloping by an urban renewal plan does not mean it didn't also want to delegate the power of eminent domain for demonstrations, but just didn't say so.

The court also rejected the argument that the demonstration project wasn't really a demonstration project, but was a "run-of-the-mill" urban renewal project that was not included in an urban renewal plan. Slip op. at 14. Although the statute does not define "demonstration," it means a "proof of concept." In short, a test project. Slip op. at 17.

The court rejected Cobble Hill's argument that okaying this means that nearly anything can be deemed a "demonstration" and that as a consequence agencies can avoid the usual rigors and requirements of "urban renewal projects" by calling things "demonstrations." This project was to test out a new or improved means of eliminating blight:

Cobble Hill next contends that the plan "does not identify any 'methods or techniques' that it is demonstrating." We do take seriously Cobble Hill's concern that the SRA cannot simply circumvent the rigorous urban renewal plan requirements by labeling a plan a demonstration or "innovative." An ordinary taking to construct a municipal public safety building, however described, would not qualify as a demonstration; meeting an expected community need in an established manner, while important, does not fall under the definition of a demonstration. But that is not the case here. The plan, albeit by no means comprehensive, contemplates the successful integration of a public safety complex with private development and nearby public transit in order to serve identified community goals. The SRA describes its plan as a "unique combination of uses proposed" on a single site that will require a new level of collaboration between the SRA, the city, the community, and developers. Whether or not it is entirely unique, there appears to be sufficient novelty in the integration of a public safety complex and private development on a single site to create a "mixed-use, transit-oriented" district to constitute a demonstration project under § 46 (f).

Slip op. at 22.

Oh really? If that's the case, then why did the court note that future demonstration projects should not be held to the loose standards applied to this project? Slip op. at 23 ("We do, however, emphasize in closing that future demonstration plans pursuant to § 46 (f), which will be undertaken with the benefit of this opinion and the definition therein, should identify with more specificity the unique or innovative nature of the demonstration, the difference in or improvement of the means used, and the manner in which reporting of the demonstration will be useful as a model for future plans."). Weird.

Finally, the court upheld the statute against a constitutional challenge. Relying on Kelo, the SJC concluded that the taking for blight elimination was for a public purpose, and that the statute sufficiently defines those purposes. And in what appears to us to be a case of logical bootstrapping, the court held that because the project was a demonstration (and was to test a new or improved means of addressing blight), the taking was for a public purpose. Nice how it all comes together, no?

Cobble Hill Center LLC v. Somerville Redev. Auth., No. SJC13028 (Mass. Apr. 22, 2021)

The Future's So Blight, I Gotta Wear Shades: New Cert Petition Asks To Reconsider Kelo In A Case Where The Stated Public Use Is To Avoid Possible Future Blight

For you original MTV folks

Here's the latest in a case we've been following for a while (even since before the last time it went up to the Court). See this post ("The Chicago Way: City Taking Non-Blighted Property For Economic Development Was Not Pretextual Because...Studies") and this one ("Illinois App: We Haven't Changed Our Mind - Chicago's Sketchy Redevelopment Taking Is Still For Public Use"), for example.

After the latest ruling from the Illinois Appellate Court, we guessed that we had not seen the last of the case. And it turns out that our prognostications were accurate: the property owner has filed a cert petition asking once again for the Supreme Court to take up (ha) a Public Use Clause case.

Have I got your attention now?

Five years ago, in City of Chicago v. Eychaner, 26 N.E.3d 501 (Ill. Ct. App. 2015), the court held that a redevelopment taking of Eychaner's property qualified as a public use. We summarized that one in our first post. After approving the taking, the court remanded the case for a determination of the compensation owed. On remand, the jury determined just compensation was $7.1 million. Also while the case was remanded, the city changed its redevelopment plans. (You know, the basis for the court of appeals' public use ruling.) But the court's earlier public use determination seems to have still bothered Eychaner, because he challenged it again, arguing that the taking no longer served a public use because the city's plans changed.

The trial court agreed with the city, so Eychaner appealed again. The appeals court again agreed with the city, rejecting Eychaner's claim that the circumstances changed not so much because the circumstances had not actually changed, but because Eychaner had not raised the changed circumstances by way of a motion for new trial. And, the court concluded, even if he had properly raised the issue, no deal.

The city's prior plans were not "superseded," but rather the new plans (and the old not-superseded plan) is part of a bigger plan that "together carry out the purpose of promoting the economic revitalization of the conservation area." Slip op. at 15. The city, after all, has the public purpose of "prevent[ing] future blight." Id. Yes, you read that right: take now to avoid future blight. As long as the condemnor has a study that says that (which the city did), no problem. We all know how hard it is to produce a study that shows possible future blight, right? (After all, we're all potentially blighted in the future.) 

Here are the Questions Presented:

1. Is the possibility of future blight a permissible basis for a government to take property in an unblighted area and give it to a private party for private use?

2. Should the Court reconsider its decision in Kelo v. City of New London, 545 U.S. 469 (2005)?

Read the entire petition. It is worth your time.

The city has waived response. Let's see if someone on the Court asks for more. Follow along here, or on the Court's docket.

Petition for Writ of Certiorari, Eychaner v. City of Chicago, No. 20-2017 (Feb. 26, 2021)

Still Time To Join Us: ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Online!) This Thursday & Friday. Tuition Deals! #EminentDomain2021

Yes, it starts tomorrow, Thursday, January 28, 2021, but we're "remote" this year, so it is not too late to register to join us for the 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love.

Details here (ALI-CLE's page with faculty, agenda, and times), or here (a recent episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

We have set it up to take advantage of the remote format, and tuition has been reduced (thank you to ALI-CLE for recognizing this, and for our sponsors for being so generous). We're seeing a lot of first-time registrations, and this is a great opportunity to give us a test drive if you've always thought about attending, but never wanted to spend 4 days away from the office to do so.

A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Your 2021 ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, Remote) BINGO Card

If you "get" this, you should be registered for the 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

The list is growing rapidly, and you need to join us!

This is the "big one" where the nation's best practitioners, scholars, jurists, and other industry professionals gather to talk shop about the subjects we know and love. We're having programs with intriguing subjects such as "Planning to Win: Practical Strategies for a Successful Inverse Condemnation Case," "How Do I Keep My Firm’s Doors Open When the Courthouse Doors Are Closed? Making Your Practice More Efficient When You Can’t Try Cases," "Where Is the Supreme Court Headed on Takings Cases? Regulatory Takings Update and Cedar Point Preview," "No Show and All Tell: Breaking News in Property Rights and Takings," "More Than the Fifth Amendment: Other Tools for Upholding Property Rights," and "Evaluating Lockdown, Moratorium, and Emergency Claims."

Details here (ALI-CLE's page with faculty, agenda, and times), or here (the latest episode of Clint Schumacher's Eminent Domain Podcast, where we preview the Conference). Here's your chance to be a part of what is the best conference on these topics.

Always wanted to join in, but didn't like the travel? Here's your chance to try us out with reduced tuition. A long-timer coming back? Look for the special deal which includes a discount on the 2022 conference.

Illinois App: We Haven't Changed Our Mind - Chicago's Sketchy Redevelopment Taking Is Still For Public Use

In City of Chicago v. Eychaner, No. 1-19-1053 (May 11, 2020), the Illinois court of appeals revisited a case that it ruled on once before. 

Five years ago, in City of Chicago v. Eychaner, 26 N.E.3d 501 (Ill. Ct. App. 2015), the same court held that a redevelopment taking of Eychaner's property qualified as a public use. We won't go into the details of facts or that opinion's reasoning. Instead, we'll refer you to our summary, analysis (and criticism) of the opinion here ("The Chicago Way: City Taking Non-Blighted Property For Economic Development Was Not Pretextual Because ... Studies"). After approving the taking, the court remanded the case for a determination of the compensation owed.

Flash forward. On remand, the jury determined just compensation was $7.1 million. Also while the case was remanded, the City changed its redevelopment plans. You know, the basis for the court of appeals' public use ruling. But the court prior public use determination seems to have still bothered Eychaner, because he challenged it again: 

[Eychaner] asserted the taking no longer served a permissible public use since the City had changed its plans for the area surrounding Eychaner’s property. Specifically, Eychaner argued, “without the River West TIF Plan, there is no valid conservation plan—or any plan—on which the Blommer redevelopment project and the taking of defendant’s property is based. It’s a naked transfer of private property through the power of eminent domain to benefit a private party— now Fuji Oil Holdings, Inc. It is a taking for private, not public use, and is thus barred in Illinois.”

Slip op. at 9. 

Wait a minute, the city objected, same issue, you lost, done. Eychaner claimed the circumstances changed, so he could raise the argument again. But apparently, he did not bring in evidence of these new circumstances, or file a motion. The trial court agreed with the city, and first concluded that this new claim was outside the scope of the appellate court's remand, and second, that Eychaner should have objected earlier. So he appealed again.

Eychaner raises two arguments. First, he asserts the City has no right to take his property and that our ruling allowing the taking to prevent future blight was wrong and in conflict with supreme court precedent in SWIDA. Eychaner asks that we reverse that judgment and dismiss the eminent domain proceeding with prejudice. Alternatively, Eychaner contends the trial court erred in denying his motion to reconsider its denial of his traverse in light of the City’s new North Branch Framework and asks that we reverse that denial and remand so the trial court can reconsider in light of changed circumstances.

Slip op. at 10. 

Nope, sorry, the court held (again) law of the case. We're stuck with our 2015 public use decision, and so are you, property owner. But what about those alleged changed circumstances? Again, no deal. The owner should have raised it before trial and not after. The rule about a post-trial motion for a new trial requires a showing that the new evidence was not discoverable before trial. "He knew of the “changed circumstances” — the North Branch Framework — before the second just compensation trial and had ample opportunity to bring the evidence to the court’s attention." Slip op. at 12. 

But even if timely, the changed circumstances did not change the public use determination. The prior plans were not "superseded," but rather the new plans (and the old not-superseded plan) is part of a bigger plan that "together carry out the purpose of promoting the economic revitalization of the conservation area." Slip op. at 15. The city, after all, has the public purpose of "prevent[ing] future blight." Id. Yes, that's right. Take now to avoid future blight. But is that any kind of meaningful standard? After all, we're all potentially blighted in the future. As long as the condemnor has a study that says that (which the city did), no problem. We suggest you read this part of the opinion, especially. 

Is this the end of the story? Given Eychaner's doggedness, we suspect not. 

City of Chicago v. Eychaner, No. 1-19-1053 (Ill. App. May 11, 2020) 

(Nearly) Last Chance To Join Us In Nashville For ALI-CLE's Eminent Domain Conference

You can also fly, drive, or bike to the upcoming 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference. in Nashville. Limited space still available, so don't delay further and register now. We're on track to record attendance, so you don't want to miss the best nationally-focused three-day program on our area of law.

Takings, Knick, compensation, appraisals ... and a bit of fun thrown in. We have many new attendees, and many new speakers, too.  

Here's The Agenda And Faculty For The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan 23-25, 2020

You overwhelmingly asked for Nashville, and we're bringing it to you!

Get ready, and hold your place now: here's the list of programs and speakers for the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, to be held at the Downtown Nashville Hilton, January 23,- 25, 2020. Two-and-a-half days with top-notch national faculty (lawyers from both sides, judges, legal scholars, appraisers, relocation experts, and others).  

Early registration and group rates are available now. 

Here are just some of the programs:

• Featured Presentation: Property Rights as Civil Rights: Seeking Justice Though the Fourth and Fifth Amendments. Hon. Jonathan Apgar, Jamila Johnson, Alan Ackerman. Moderator: Leslie Fields.
• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do? David Breemer, Smitha Chintamaneni, Professor Bethany Berger. Moderator: Professor Steven Eagle.
• When A River Runs Thought It: Water Rights and Takings. Nancie Marzulla, Hertha Lund, and Charles McFarland. 
• Passive Takings by Government Inaction. Professor Christopher Serkin.
• Show, Don't Tell: The Dos and Don'ts of Demonstrative Evidence. John Murphy, Jeffrey Hamill.
• Is Close Enough Good Enough? Establishing the Date of Valuation in Direct and Inverse Cases. Neil Olson, Bill Ryan.
• Creative Approaches to Solving Difficult Appraisal Problems, Edward Burg, Bob Grace, MAI, Michael Rikon. Moderator: Joseph Waldo. 
• All You Need is Love: New Frontiers in Alternative Dispute Resolution in Eminent Domain. Cortney Young, Dwight Merriam.
• Road Warriors: Building and Trying an Eminent Domain Case From Your Laptop. Paul Henry, Jody McSpadden.
• Special Benefits: The Givings Clause? Heather Cunningham, Randy Smith.
• How To Try and Settle Pipeline Cases. Thomas Peebles, Melissa Glassman.
• Going Where No Court Has Gone Before: The Tension Between the Courts and Appraisal Methodology. Kevin Walsh, Kannon Conway. 
• Responding to Project Changes: Valuing a Taking When Government Action Changes or is Ongoing. Meghan Largent, W. Andrew Gowder. 
• Responding to the Abuse of Motions in Limine. Anthony Della Pelle, Williams James (invited)

There's also an Ethics program. For that, we are doing something a little different this year, with a special don't-miss presentation, "Surviving the Daily Fistfight: Finding Your Resilience When Every Day is a Battle" with Clint Schumacher, Christian Torgrimson, and Michael Ryan. 

And for those new to the field, or old hands who would like a refresher course, there's the "101" track on Thursday, going through an eminent domain case from A to Z. 

And this isn't the complete list, and there's more on relocation, regulatory takings from both sides of the case, effective strategies to determine unity of lands, fixtures, national updates for eminent domain and regulatory takings, and the "open mike" National Forum (where practitioners from around the nation share their issues and cases).

Look for the complete brochure shortly on the Conference web page on the ALI-CLE site.

And of course, there's Nashville. We're right around the corner from all that the town has to offer. Music City, USA. Hot chicken. The Grand Ole Opry. Country Music Hall of Fame. The Hermitage. 

So make your flight and hotel reservations now. Don't miss out. The attendance at the last several conferences has been record-setting, and the conference block at the hotel has sold out.

Join us - old friends and new colleagues! 

Colorado Supreme Court Denies Cert In "Improper Motive" Condemnation

Here's the latest in a case we've been following, involving what Colorado calls "bad faith" condemnations. 

In this order, the Colorado Supreme Court has declined to review the Court of Appeals' conclusion that a taking ostensibly to preserve open space and a buffer zone between two municipalities, was an invalid exercise of the eminent domain power because the true reason for the taking was to prevent the condemnee-municipality from luring a big-box retailer, King Sooper, to its territory and away from the condemnor's. 

So even though the case has ended with a whimper and not a bang, this does mean that the Court of Appeals' hard look at the actual motives of the condemnor -- and not merely its stated purpose -- is the way to do things. The court examined the factual record, and not just the stated reasons for the taking, and tested whether the condemnor's claim that it needed a buffer zone could not be satisfied by means other than taking the property from Erie. And finally, that even some public benefit will not save a taking if the condemnor's motive is bad.  

Order, City of Lafayettee v. Town of Erie Urban Renewal Authority, No. 2018SC538 (Colo. Feb. 11, 2019)

NJ Appellate Division On Land Banking: "Take Now, Decide Later What To Do With It" Isn't Good Enough

Here's the decision in a case we've been following from afar in which our colleagues Anthony Della Pelle and Robert McNamara are on the side of property owners, Borough of Glassboro v. Grossman, No. A-4556-17T2 (Jan. 7, 2019). 

This is redevelopment, New Jersey style. We ask that you read the opinion (it isn't terribly long, and it is worthy of your perusal in its entirety), but here's the bottom line:

[W]e hold that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere "stockpiling" of real estate that might, hypothetically, be useful for a redevelopment project in the future. In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term "necessary" out of the Legislature's enactment.

Slip op. at 2-3.

If you think that sounds kind of familiar, you'd be right. The opinion cites one of our favorite cases, City of Stockton v. Marina Towers, 88 Cal. Rptr. 3d 909 (Ct. App. 2009), in which the court held that a "take first, decide later" what to do with the condemned land was not a valid public purpose supporting a taking. 

Here, the Appellate Division rejected the Borough's argument "that it can satisfy the necessity requirement of [the statute] by simply declaring that it wishes to stockpile a parcel for some possible future need in the redevelopment area." The court concluded that "[t]hat sort of inchoate or speculative justification -- aptly described by defendants as 'land banking' or 'land assemblage' -- does not suffice to establish necessity under the statute." Slip op. at 19-20. 

To do that, the condemnor "must do more than recite that a parcel it seeks to condemn has some unexplained necessity to the overall redevelopment area or the redevelopment plan. Instead, there must be particular redevelopment project identified and tied to the proposed acquisition...Our point is that there must be an explained linkage between the property to be acquired and the identified project." Slip. op. at 22. 

We understand that condemnors are kind of used to getting their way, even -- or especially -- in court. But come on, the standards for public use and public purpose (and "necessity") are not really high, are they?

Is it that difficult to have an actual use in mind for land that is being taken at the time the land is being taken? 

Linkage!  

Borough of Glassboro v. Grossman, No. A-4556-17T2 (N.J. Super. App. Div. Jan. 7, 2019)

Fifth Circuit: Williamson County Doesn't Require District Court Dismiss Due Process Or Takings Claim

A short, but published, opinion from the U.S. Court of Appeals for the Fifth Circuit.

In Archbold-Garrett v. New Orleans, No. 17-30692 (June 22, 2018), the court held that the plaintiffs' Fourth Amendment, Fifth Amendment, and Fourteenth Amendment claims (search and seizure, compensation, and procedural due process) were ripe for federal court, even though the plaintiffs had not sought compensation in a Louisiana court under Louisiana law. 

Quick background: the city demolished a building the plaintiffs owned which they had purchased from the city at a lien sale. The prior owner had racked up a bunch of code enforcement fines, and the city claimed the building was dangerous and should come down. But after the sale to the plaintiffs and days before the demolition, the city cancelled the code enforcement lien. Predictably, the city sent the new owners a bill for the demolition. They sued in federal court, arguing they didn't have notice of the impending demolition, and they had no chance to defend against the fines. They also sought compensation for the taking of their property, and damages for the wrongful "seizure" of their building. The District Court, relying on Williamson County, dismissed all claims for lack of jurisdiction.

The Fifth Circuit vacated and remanded. 

First, no mission creep: the court concluded that Williamson County is rooted in the Just Compensation Clause, and the plaintiffs' procedural due process claim "seeks distinct remedies" from the takings claim. Slip op. at 5. The court concluded that the taking was not the plaintiffs' only injury alleged, and "[t]he relevant inquiry then is whether the Appellants' state law inverse condemnation suit would afford a remedy for these additional injuries." Slip op. at 7. After reviewing Louisiana law, the Fifth Circuit held no, relying principally on a recently-decided Louisiana Supreme Court decision which noted that there's no "specific formula" to determine the "full extent of the loss" means in takings claims under Louisiana statutes. Lacking certainty that there's 100% overlap between Louisiana due process remedies and takings remedies, the Fifth Circuit was "not convinced that an inverse condemnation action would provide the same scope of damages available" under state law. Slip op. at 9. 

Second, as to the takings claim, the court held that Williamson County is a prudential doctrine, not jurisdictional, and since it was sending the due process claim back to the District Court, it made sense to send the takings claim back with it. The court agreed with the Fourth Circuit on this issue (an issue which, we hope, will be definitively resolved nationwide or mooted by the Supreme Court in the pending Knick case). 

Finally, the court held a search and seizure claim isn't subject ripeness requirements at all. The Fourth Amendment wrong is complete upon the (allegedly) illegal seizure, here the demotion of the plaintiffs's property.

Seems about right.   

Archbold-Garrett v. New Orleans City, No. 17-30692 (5th Cir. June 22, 2018) 

This Is How You Do It: Colorado App Looks Behind The Curtain, Invalidates Spite Taking For Improper Motive

Here's a very important decision eminent domain decision we've been waiting to drop.

As the caption might indicate, the Colorado Court of Appeals' opinion in City of Lafayette v. Town of Erie, No. 17CA0595 (June 14, 2018), isn't your usual "condemnor vs private property owner" case. The question was whether one municipality -- a home rule city -- could take land from a neighboring statutory city. Framed that way, the issue seemed like one more to warm the cockles of municipal law junkies than takings mavens.

But no, this one should be read by every condemnation lawyer. Because it details a subject we've been thinking about a lot lately: how to ferret out an improper motive in a taking in which the condemnor's stated purpose appears to be public. Read on. 

As noted above, this dispute was between two Colorado municipalities. Essentially a border dispute where the towns were merging together in the exurbs along the corridor of Highway 287. The Lafayette side of the corridor had plenty of development: a big Walmart, fast food restaurants, an auto repair shop, and a King Soopers supermarket, along with a residential development. 

Erie wanted to get in on the development of the Highway 287 corridor. It formed an urban renewal authority, and purchased two vacant parcels (together, now called Nine Mile Corner). A few years later, Erie annexed Nine Mile from the renewal agency. 

Turns out (surprise, surprise, surprise!) that the Nine Mile parcel was blighted. Time for urban renewal and development! And just who might the new tenant of the saved-from-blight property be? King Soopers, the same supermarket with an outlet just down Highway 287 in Lafayette. King Soopers wanted to ... sooper size ... as it was, in the court's words, developing "a larger store prototype." Erie's Nine Mile property looked mighty good. 

Lafayette, it seems, wanted to keep its King Soopers ("and its corresponding tax revenue," as the court put it). If you want the parcel next to the Walmart, let us know, KS. Apparently, no deal. 

Things moved fast. Just a couple of months after Lafayette found out about King Soopers maybe moving next door to the Nine Mile parcel in Erie, the Lafayette city council approved the taking of the land:

for the public purpose of open space and benefits associated with open space, as well as preservation of Lafayette's local and unique character, and buffering of Lafayette from development activities in neighboring communities.

Now hold on, Erie said, Nine Mile is in our town, not Lafayette's, and it can't grab land we own (that's our AO).

When Lafayette's offer to buy the land was refused, it filed an eminent domain lawsuit. Erie objected, arguing the condemnation lacked a public purpose. After a two day hearing, the trial court agreed, this purpose of this taking was to stop Erie from developing the parcel:

The articulated need of acquiring open space for the purpose of creating a community buffer between Lafayette and Erie is inconsistent with Lafayette’s actions in development the Hwy. 287 corridor. Instead, Lafayette’s actions are more closely aligned with a previously articulated goal to ensure that Erie does engage in commercial development on Nine Mile Corner.

The court of appeals affirmed. The court sideskipped the muni law issue of whether property owned by a statutory city can be taken by a home rule city. Apparently both cities assumed Lafayette could reach outside its borders and take, as long as it had the right reasons. The court noted that a Colorado home rule municipality can, generally speaking, take land outside of its borders, even property already devoted to public use, as long as the the taking is for a public purpose. 

But the court focused on Lafayette's actual motive for the taking, concluding that the taking was motivated by Lafayette's desire to keep King Sooper from opening a larger store prototype just over the border in Erie. And interestingly, the court also found that Lafayette's stated necessity was pretextual. (Yes, necessity.)

The court concluded Lafayette had an improper motive "to interfere with Erie's proposed commercial development." Slip op. at 15. No deal, even where the advanced public purpose (buffer zone) is, on its face, a public use:

The stated public purpose of an open space buffer is valid, but blocking Erie’s planned development— planning that predated Lafayette’s condemnation petition — is not lawful.

Slip op. at 15 (citing R.I. Econ. Dev. Corp. v. Parking Co., L.P., 892 A.2d 87 (R.I. 2006)).

Interestingly, the court looked at the factual record (not just the stated reasons for the taking), and tested whether Lafayette's claim that it needed a buffer zone would not be satisfied by means other than taking Nine Mile Corner. For example, "Lafayette presented no evidence showing why the setback incorporated in Erie's development plans would be insufficient to serve as a community buffer."). Slip op. at 17-18. 

The taking was pretextual. The court concluded:

Because Erie, as the property owner, met its burden of showing bad faith, see Goltra, 66 P.3d at 174, the district court properly examined Lafayette’s finding of necessity to determine, with record support, that the taking to establish an open space community buffer was pretextual and was not a lawful public purpose. See Glenelk Ass’n, 260 P.3d at 1120. The court also indicated that Lafayette’s public officials were highly motivated to keep King Soopers — and the corresponding tax revenue — within Lafayette. Accordingly, the record amply supports the district court’s findings.

Slip op. at 18.  

Here are your takeaway points:

• Courts don't have to just accept whatever the condemnor says its reasons are for the taking. Slip op. at 13-14 ("Lafayette's argument hinges on its belief that because the Lafayette city council determine this condemnation was necessary, the district court cannot look behind that determination to see if it was motivated by bad faith. This is incorrect."). 
• If there's an allegation of bad faith (improper motive), the court gets to take a hard look. Slip op. at 12 ("Without judicial review of condemnation actions, there would be no end to one entity subverting another entity's condemnation action by initiating one of its own.").
• Some public benefit resulting from the taking won't necessarily save it. Slip op. at 12. Motive, not the percent of public benefit, is what counts here. 
• The way to see whether the stated public purpose is indeed public, the court looks to the record. Slip op. at 14 (citing City & Cty. of Denver v. Block 173 Assocs., 814 P.2d 824, 828-29 (Colo. 1991)).   
• Similarly, a condemnor's statement of the necessity of the taking is subject to review for bad faith/improper motive. Slip op. at 13. But only bad faith. Without an allegation of improper motive, a court cannot reweigh the need for the taking. Id. ("Thus, if bad faith is at issue, courts may look behind an entity's stated condemnation purpose and finding of necessity."). 
• The trial court did the right thing to test Erie's claim on bad faith by conducting a hearing to consider the evidence. Slip op. at 14.
• When the condemnation isn't sui generis, but there's a factual record of stuff that happened before the condemnor decided to take, the reviewing court should dive into that record. Drafting a neutral resolution of taking isn't going to insulate the condemnor from this sort of review. Slip op. at 15-16. 
• When the trial court makes these type of factual findings about the condemnor's motive, the appellate court will defer. Slip op. at 15. 

To us, the Colorado Court of Appeals got it right. Motive, not stated reason, is what matters. The fact that a taking motivated by stinky reasons might also have some public benefit, or that there were good motives mixed in with the bad, isn't enough. It doesn't matter, for example, that a taking may be for a public road, if the taking was motivated by other, nonpublic reasons. 

One final note: you often hear about what we call "spite takings." So-and-so is a bad guy, so let's take his property. These have always stuck us as silly proposals, subject to invalidation for the reasons the Colorado court articulated. 

Sidebar: the opinion includes the color map and the property image, above. We wish more courts did this.

City of Lafayette v. Town of Erie, No. 17 CA0595 (Colo. App. June 14, 2018) 

10th Cir: When City Declares Property Blighted And Subject To Condemnation, It Must Tell The Property Owner

You might not think that the conclusion which the U.S. Court of Appeals for the Tenth Circuit reached in M.A.K. Investment Group, LLC v. City of Glendale, No. 16-1492 (May 14, 2018) would be all that controversial: when private property is declared by a municipality to be "blighted" and subject to redevelopment (and eminent domain), the municipality needs to tell the owner about it, even if the taking may occur somewhere down the road. But apparently it was not obvious, for it took years of litigation to figure it out.

Colorado's urban renewal statute permits local governments to designate private property as blighted (by looking at eleven factors), take it any time within the next seven years, and transfer the land to a new private owner. An owner has a very short time window -- 30 days -- to challenge the blight determination by filing a lawsuit in a Colorado trial court. The statute's notice provision:

As for notice, the statute requires a city to notify property owners in two instances: (1) when the city begins a study regarding blight involving their properties, and (2) when the city will hold a hearing regarding its intention to acquire property for public or private redevelopment. See § 31-25-107(1)(b), (3)(b).

But when it comes to the results of these blight hearings, the notice requirement depends on whether the city found the property at issue blighted or not. Strangely enough, Colorado’s statute requires a city to mail notice to those whose property it does not find blighted, but does not require a city to notify those whose property it does find blighted. See § 31-25-107(1)(b). The statute also takes care to note that “[n]otwithstanding any other provision of law, any determination made by the governing body . . . shall be deemed a legislative determination and shall not be deemed a quasi-judicial determination.” § 31-25-105.5(2)(c).

Slip op. at 5-6. 

MAK's property was included in Glendale's "Riverwalk" redevelopment project. The City told MAK it was studying whether the property was blighted, and would hold a public hearing "to approve the Riverwalk Urban Renewal Plan." But the City did not tell MAK that the hearing "related to the possibility of future condemnation proceedings" against MAK. Slip op. at 6. At the hearing, the City found that the property was blighted. But the City didn't tell MAK about that finding, nor did it tell it that this opened the 30-day repose period for MAK to challenge the blight determination. By the time MAK found out several months later, it was too late, baby.

MAK sued in federal court under § 1983, asserting the Urban Renewal statute violated its due process and equal protection rights. The District Court dismissed the complaint.

The Tenth Circuit reversed. We're going to focus on the due process claims, because those were the most interesting. MAK made two distinct challenges. First, that the statute did not provide adequate notice to MAK that its property was blighted. Second, that the City had an obligation to provide MAK with notice of the 30-day repose period, and because the statute did not require it to do so, the statute is unconstitutional.  

The court first identified MAK's property interest. The City argued that the statute did not jeopardize MAK's property, because a blight determination only subjected MAK's land to possible future condemnation, and didn't actually take the land. The court concluded, however, that MAK's property interest was the (statutory) right to judicial review. Ah, a government-created "entitlement," aka New Property. Slip op. at 10 ("This state-created cause of action constitutes a protected property interest."). Id. at 11 ("M.A.K. had a property interest in its statutory cause of action to challenge the blight determination process for abuse of discretion.") (footnote omitted).

Having concluded MAK owns due process property, the court addressed its two lack-of-notice claims, that the property was determined to be blighted, and that this opened the 30-day challenge window. The court concluded that the City was required to have told MAK about the blight finding, but was not required to inform it of the 30-day challenge period. Slip op. at 16 ("Applying this intuitive rule, we conclude due process required Glendale to provide M.A.K. with direct notice of the adverse blight determination. In contemporary terms this means notice had to be mailed, emailed, or personally served."). 

Without notice, MAK "was left unaware of the potentially looming condemnation action," id., and had no idea it could have and should have challenged the finding. 

When in the absence of notice, property owners are likely to lose a property right—in a cause of action or otherwise—the Mullane rule applies. At that point, the state must take reasonable steps to provide enough notice for reasonable persons to realize they must investigate possible remedies.

Slip op. at 17. The court rejected the City's argument that MAK and other property owners have a duty to keep up on things, and even if MAK could have been more diligent, that alone did not relieve the City of the duty to give an owner notice that the City has made a determination that may affect the owner's rights. Read the opinion from pages 18 through 29 for the court's analysis of each of the City's related arguments. 

The court had a different view of the City's duty to tell the owner specifically about the 30-day repose window and its ability to challenge that decision in court. Slip op. at 29. The court held the government's due process obligation to provide ends after it tells the property owner about its decision, and it is up to the owner to figure out what it might do next. Slip op. at 29-30. Property owners have a duty to keep themselves informed about avenues of relief:

The right to seek review within thirty days is publicly accessible in a statute. Had M.A.K. been notified of the blight determination, it could have turned to "public sources to learn about the remedial procedures available to [it]."

Slip op. at 30-31.

In sum, Glendale needed to tell MAK of Glendale's blight determination, but it didn't need to tell MAK what it could do to challenge that decision. That responsibility falls on MAK. 

While we appreciate this analysis, we think the better rule would have concluded that the City owed MAK notice of both the city's decision and MAK's avenues of relief. The court recognized that its ruling created a circuit split with the Second Circuit's decision in Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir.2005) -- which held that due process requires both notice of the government act, and the avenue of review -- (and, by the way, with the Hawaii Supreme Court's ruling in Kellberg v. Yuen, 131 Haw. 513, 319 P.3d 432 (2014), which adopted the same rule as Brody).

Brody and Kellberg concluded (rightly, we think, since we represented the owner in the latter case) that the burden on government to inform an owner of the government's own process for review is so minimal that it it really is no burden at all. Also, these are the government's own procedures, and this isn't a game of hide the ball, littered with traps for the unwary owner.

Government should be transparent when it does things that could end up depriving someone of their property, including the ways for the owner to contest the finding. Like the statutes and rules in Brody and Kellberg, Colorado's urban renewal law is dense text, 37-single-spaced pages, and probably not so easily understandable that the "average landowner" would realize it has a very short window in which to react (and in a very specific way).

M.A.K. Inv. Group, LLC v. City of Glendale, No. 16-1492 (10th Cir. May 14, 2018) 

Land Use Institute - Detroit

We're in Detroit the rest of the week at the Mercy Law School for the venerable Land Use Institute, now in its 32nd iteration.

Planning Chair Frank Schnidman has assembled a great faculty including out Detroit colleague Alan Ackerman (above, talking about takings liability for flooding), and we'll be spending the time talking inverse condemnation, public trust, planning law, homelessness, autonomous vehicles, affordable housing, RULIPA, and similar topics. We'll be presenting on "Eminent Domain, Vested Rights, and Regulatory Takings," "Client Representation: Developer, Government, and Citizens Groups," and "Federal Laws Affecting Local Land Use Decision Making." 

If you are here with us in Detroit, stop by and say hello. If you aren't here, shame on you! This is one of the best and most affordable tuition deals in CLE.

But all kidding aside, if you are not in Detroit now, be sure to calendar these two dates:

• 2018 Land Use Institute: April 11-12, 2019, Baltimore, MD (Royal Sonesta Harbor Court Hotel)
• 2020 Land Use Institute: April 23-24, 2020, Tampa, FL (Le Meridien Tampa)

Reserve the dates!

32nd Annual Land Use Institute: Detroit, April 19-20, 2018

Mark your calendars, plan to come: Detroit, April 19-20, 2018. For what is perhaps the best deal in CLE (tuition as low as $400), the 32d Annual Land Use Institute, sponsored by our section of the ABA, the Section of State and Local Government Law.

The venue is the Detroit Mercy School of Law, and the conference hotel is the historic Westin Book Cadillac in downtown Detroit. The Land Use Institute is being held in conjunction with the Section's Spring State and Local Law Conference. Register for one conference, and you are free to move between sessions (no additional registration fees).

Planning Chairs Frank Schnidman and Dean Patrica Salkin have assembled an excellent faculty and program for the two days. Topics include: "Nuts and Bolts of Land Use Practice: Vested Rights and Regulatory Takings," "Public-Private Partnerships," "Climate Change and Resilient Development," "Client Representation: Developer, Government and Citizen Groups," "Housing Supply and Affordability: Planning Alternatives and Legal Consequences," and "Community Benefits Agreements, Environmental Justice and Access to Housing." The Annual Richard Babcock Keynote Address will be by Wendie Kellington, "The Role of Planning and Law in Solving Homelessness." Complete agenda is posted here.

Other featured speakers: Dennis Archer, former Detroit Mayor (and Past President of the American Bar Association); Neisen Kasdin, former Mayor of the City of Miami Beach; Jared Fleischer, Quicken Loans; and Maurice D. Cox, Director, Planning & Development, City of Detroit. And, as always, a renown national faculty of land use law practitioners, scholars, jurists, and public officials. 

Come and join us in the reborn City of Detroit, where there's a lot to do and see.

ALI-CLE Eminent Domain Conference, Third Day: Berger And Burling On Takings

We're on our third day at the 2018 ALI-CLE Eminent Domain and Land Valuation Conference in Charleston, SC, and as usual, we're having our headline presentations by takings guru Michael Berger (pictured above), who is updating us on the most interesting and important cases of the past year, and Jim Burling, who will be answering the question, "Should We Rethink Regulatory Takings Law? The Takings Clause, Privileges and Immunities, and Due Process."

• Fane Lozman (Mr. Houseboat) back at the Supreme Court.
• Latest Chapter in the NC Map Act Cases: State Does Not Have Sovereign Immunity From Takings: "sovereign immunity must be juxtaposed with the contrary sovereignty of the individual, whose natural rights preceded government and were enumerated in the federal Bill of Rights."
• Bay Point Properties v. Mississippi Transportation Comm'n, No. 16-1077
• Nies - the public trust and beaches

Here are links to the cases and issues which we discussed in the National Forum:

• A different kind of taking: Willard Swinson (via Anne Fisher). Want to help? Go fund me page here.
• Eminent Domain Abuse, Hawaii Style. Video.
• How Do You Exclude Someone From A Clean And Healthful Environment? Hawaii Supreme Court Rules The Public Has A Property Right In The Environment.

This year's conference has been a big success. More than 250 attendees and faculty, and -- very importantly -- nearly 100 first-time attendees. This bodes well both for the Conference and the eminent domain and property bar.

A big thank you to our ALI-CLE Program Attorney Amy Weinberg for undertaking the planning and execution of this very good conference.

As we posted yesterday, the 2019 Conference has been set: mark your calendars for January 24-26, 2019, in Palm Springs, California, at the Renaissance Palm Springs Hotel. We'll see you there.

Related articles

inversecondemnation.com: Important 2017 California Eminent Domain And Inverse Cases, Summarized

ALI-CLE Eminent Domain Conference: Cases And Links From 2017 National Eminent Domain Update

ALI-CLE Eminent Domain & Land Valuation Conference - In-Person Registration SOLD OUT (But You Can Still Join By Live Webcast)

Our upcoming American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference in Charleston, South Carolina has SOLD OUT our in-person registrations. 

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference. 

Thank you to all of you who signed up and are coming or joining in online for the webcast -- we'll see you soon at the "four corners of the law."

And if you delayed too long in registering, please don't despair. You can still attend from home or the office because ALI has set up a live webcast of the sessions. Go here for more on how to sign up to attend by webcast.

And stay tuned: for 2019, we've already picked the venue (hint: west coast), and we are at a site which can accommodate as many attendees as can join us. We will make the formal announcement of the dates and location of the 2019 Conference in Charleston next week.

After we do, please make your plans and don't delay and risk getting left out! 

Tuesday Round-Up

Here are the things we are reading today:

• Hawaii has record-low unemployment and it’s not a frozen hellscape. Why are people leaving? (We think we know the answer.) From the Washington Post.
• Study: Ferry not feasible (via West Hawaii Today). Sorry folks, the Superferry is gone, and it ain't coming back.
• Once A Gas Station, Always A Gas Station? D.C. Sued Over Law Blocking Redevelopment - from WAMU radio. DC forces gas stations to stay in business.
• California lawmakers seek to stop ‘negligent’ utilities from hiking rates after disasters - from the Santa Rosa Press Democrat. If these are takings, then shouldn't we all be paying?
• East Harlem dry cleaner says city’s forcing him out of business after eminent domain dispute (via the New York Daily News). Same old story in NYC: nonblighted property declared blighted and subject to condemnation, courts helpless to do anything about it.
• Year in review: The Honolulu rail project: "The past year was an eventful one for Honolulu’s beleaguered rail project, with rail officials and lawmakers facing a $3 billion funding shortfall, a Federal Transit Administration deadline and a special session at the state Legislature to determine a funding mechanism for the project." (Pacific Business News)
• How Lincoln Center Was Built (It Wasn’t Pretty) (from the New York Times). (Hint: it was the same way that the New York Times was built.)

Project Announcement: Honolulu Rail May Be Coming To A Neighborhood Near You

The work on what turned out to be the first phase on Honolulu's billions-of-dollars rail project from Kapolei to the Ala Moana Shopping Center isn't even close to being done yet, but the Honolulu Authority for Rapid Transportation looks like it is thinking ahead to Phase 2, and extending the line from the shopping center to the University of Hawaii in Manoa (where the commuting students are), or maybe Waikiki (where the tourists are). 

We say "what turned out to be the first phase," because you will recall that as originally conceived the rail would run from Kapolei to the UH, but was then scaled back when that plan was too expensive, too ambitious. Now that the election is behind us, and the money sort of is flowing again, maybe not. 

Problem is, there's a lot of residential and commercial development between the shopping center and the UH and Waikiki, so acquisition of the right of way is going to get harder, more expensive, and messier than it has been so far for phase 1 (although the reason for the massive cost escalation in the project thus far has not been land acquisition, which in proportion to other costs is a relatively minor part of the overall bill). Plus, according to the above reports, there is even stuff that is being built right now that would be in phase 2's path, and would need to be acquired. 

The long and the short of is is that project announcement is the effective taking date triggering property owners' right to compensation and damages (a date the city would likely want to put off as long as possible), but before announcement of the project route, the city can't use its regulatory power to curtail development in the potential path of the rail, or to try and hold down the cost of (eventual) acquisition. That would be illegal or also a taking. So keep looking for these "hints" from HART about where they are thinking of putting the rail lines, but nothing really concrete that anyone could point to as the actual "project announcement." 

More on the latest happenings from Honolulu Civil Beat ("Rail Board OKs Preliminary Step To Push Route Past Ala Moana") and in these two video reports from KITV/Civil Beat:

• Civil Beat/KITV: Honolulu Rail Problems ("pretty obscure language to talk about what they want to do...")
• KITV: HART eyes possible routes for rail expansion to UH Manoa ("preserving the corridor to UH is till important...")

Go here for rail and eminent domain FAQ's. 

Cases And Links From Washington Eminent Domain Conference

My thanks to Bart Freedman (K&L Gates) and Kinnon Williams (Inslee Best Doezie & Ryder) for asking me to speak on national takings and inverse condemnation issues at yesterday's Eminent Domain conference in Seattle.

As you can see, the room was packed and standing room only. Here are the cases and issues I mentioned during my talk, "National Takings Trends, Hot Practice Areas, and Property Rights in the Age of Trump:"

• Texas border walls: Gideon Kanner on federal takings; eminent domain and the (2008) border fence; is there a "border patrol" servitude?; seizures at border inspections and takings; a (northern) border story, from Washington state; 
• Pipelines and energy transmission corridors: Pennsylvania Supreme Court on public use. Pennsylvania appeals court on public use and the polar vortex.
• Pipelines and energy corridors II: Through Kentucky and "public" use.
• Flooding cases - a hot topic.
• Lessons for eminent domain pretext from the Immigration EO case.
• Municipal utility takeovers: public ownership on Montana water company is "more necessary."
• Project announcement: North Carolina's Map Act, Nevada Supreme Court, California Court of Appeal.
• Sharing economy: Seventh Circuit (Posner) on Uber vs taxis. Georgia Supreme Court's recent opinion on sharing economy takings.
• SWAT taking.
• Uniform Relocation Act and inverse condemnation attorneys' fees.
• South Carolina: attorneys' fees as "property."
• Cases to watch II: Violet Port Dock - Louisiana Supreme Court considering public use.
• Cases to Watch II: Murr v. Wisconsin - the larger parcel in regulatory takings.   

New Article: Recent Developments In Eminent Domain

Here's an article, recently published by the Urban Lawyer (the law review produced by our ABA section, the Section of State and Local Government Law), with our take on the most interesting and important eminent domain and takings rulings from the past year. 

Many of the cases discussed will be familiar to regular readers, but here it is in one place, and in print. 

Recent Developments in Eminent Domain, 48 Urb. Lawyer 939 (2016)

Related articles

New Article: "Eminent Domain in The Aftermath of Hurricane Katrina"

New Law Review Article Worth Reading: "Through a Glass Clearly: Predicting the Future in Land Use Takings Law"

Details: ALI-CLE Eminent Domain And Land Valuation Conference - San Diego, January 26-28, 2017

We've teased some of the details on the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation and Condemnation 101 Conference, to be held at the Westin San Diego, January 26-28, 2017, but here are the details you've been waiting for.

This is the "big one," our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we're on the way to replicating it in 2017, with a great venue in an exciting city. 

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we'll post more in the next few days):

• Relocation, relocation, relocation: we are featuring two sessions on this important and growing area of law. Our first panel will address the tension between condemnors, property owners, and tenants in securing relocation benefits, and our second will be a case study of an appeal under the Uniform Relocation Act, complete with lessons learned and traps for the unwary. Featuring a slate of experts: David Arnold (Virginia), Janet Handy Bush (Maryland), Kenneth Gindy (Texas), Brian Kunze (Virginia), Jill Gelineau (Oregon), Kelly Walsh (Washington), and Martyn Daniel (Washington). 
• Present and Future Highway Projects: we have several panels on issues related to present and planned highways and other transportation projects. We'll focus on the issues that arise when a highway authority plans to take property but doesn't do so immediately -- where are the lines between planning and taking in those cases? Strategies for property owners in obtaining information from the highway department under public records laws, and the role of federal funding in these and similar cases. Featuring Linde Hurst Webb (Ohio), Matthew Bryant (North Carolina), W. Andrew Gowder (South Carolina), Minming Wu (from the Federal Transit Administration (invited)), and Mark Murakami (Hawaii). 
• Trial and practice insights: we have several panels devoted to the latest strategies from condemnation jury trial experts: how to use experts (appraisers and others) to make your case; how to employ a jury consultant to maximize your results; winning valuation evidentiary issues before and during trial; admitting or excluding the "lowball" offer; and maximizing the property owner's testimony in the just comp phase. With Jeremy Hopkins (Virginia), Mary Nell Bennett (Louisiana), Christian Torgrimson (Georgia), Darius Dynkowski (Michigan and Ohio), Andrew Brigham (Florida), Scott Jenny (California), Justin Hodge (Texas), and Susan MacPherson (Minnesota)
• Inverse and regulatory takings: It's been 25 years since the Supreme Court blockbuster Lucas -- has the sky fallen? With Dwight Merriam (Connecticut), and Luke Wake (California and DC). Where the line is between an exercise of the police power to protect the public, and a taking is something we've been trying to figure out for nearly a century since Pennsylvania Coal. David Breemer (California) and I (Hawaii) will bring you the latest. 

There's a lot more, of course, Reserve your space by registering for the conference here. 

Related articles

Virginia: Jury Gets To Hear About Appraisal Bait-And-Switch

West Virginia: DOT Should Not Have Mined Privately Owned Limestone Without Owner's Permission

2015 ALI-CLE Eminent Domain Conference: Third Day Update And Lessons Learned

inversecondemnation.com: Land Use: License Plate Edition

Honolulu To Truncate Rail ... For Now?

In a surprise move, Honolulu Mayor Kirk Caldwell today announced that he supports suspending the Honolulu rail project at Middle Street, at least until there's more money in the coffers. See "Mayor, Council chairman say rail should end at Middle Street for now" from Marcel Honore at the Star-Advertiser.

We think the key words in that headline are "for now," and this is not the end of the project, necessarily. Notwithstanding that, as the story notes, this could be a "seismic shift" for the project, which has been plagued by massive cost overruns and other embarrassments since its inception, such as having its financially-savvy Board chairman resign and be replaced by a career politician, only to see her set her cap for Congress and abandon ship when one of Hawaii's two House seats unexpectedly became available. What started off as a project projected to cost a bit more than $3 billion for 20 miles and 21 stations of steel-on-steel elevated track, has ballooned to more than $8 billion, exclusive of operating costs. The voters of Honolulu approved the project when they voted for the creation of HART, the Honolulu Authority for Rapid Transit. But as of late, the concerned voices expressing their dissatisfaction have grown louder and more strident. Middle Street is approximately half way from the Kapolei start point (pictured above) to the planned terminus at Ala Moana shopping center, and halting the rail there would almost certainly undermine its utility, as it would not include the most densely populated portion of the route. 

What could this mean? Is this only election-year politicking by a mayor seeking to co-opt his opponents' issues? A genuine recognition of financial realities? Does this mean rail has derailed, and if so, is this permanent?

We have more questions than answers at this point, but this much we do know:

• What about properties already seized by eminent domain -- does the City need to sell those properties back to their former owners? No, Hawaii law does not have any requirement, unlike some other states, for property taken by eminent domain to be sold back to a prior owner if the public use for which it was taken never comes to pass. Maybe Hawaii law should require that to happen, and perhaps the Hawaii Supreme Court would conclude that the constitution requires it. But for now, there's no decisional law, nor is there any statute which requires it. 
• However, the Hawaii eminent domain code does require that if a taking is abandoned or dismissed prior to final judgment, the condemnor is on the hook for "damages." Meaning at least all attorneys and appraiser fees and costs incurred by the property owner, who is entitled to be made whole by the condemning authority. The Hawaii Supreme Court so held in a case in which we represented the property owner. 
• Also, should the rail project really stop halfway, the City isn't off the eminent domain hook, necessarily, especially after telling the remaining property owners for years that their parcels were going to be acquired. Inverse condemnation is a potentially available remedy for those owners whose properties were clouded by the project, even if the project is delayed, or even if it is never completed as planned. 

For now, we must wait for more definite answers.  

Pennsylvania Condemnors: You Can Keep Property Owners Hanging On Indefinitely, Despite The One-Year Statutory Clock

The Pennsylvania eminent domain code requires a condemnor to file the declaration of taking within a year of its being authorized:

The condemnor shall file within one year of the action authorizing the declaration of taking a declaration of taking covering all properties included in the authorization not otherwise acquired by the condemnor within this time.

26 Pa. Consol. Stat. § 302(e). Condemning agency gets authorization, and it has a year to file the declaration of taking. We're not Pennsylvania lawyers, but the cues are there: "shall," "within one year," and the like. Seems simple enough. 

Not so fast, according to the Pennsylvania Commonwealth Court. In In re Condemnation of Right-of-Way for State Route 0095, Section BSR, No. 1308 CD 2014 (Jan. 29, 2016), the court held that a condemnor can take pretty much as long as it wants, provided it "reauthorizes" the taking before the one-year time expires.

Short story: on March 7, 2013, the PA Secretary of Transportation authorized the taking of 44 parcels in Philadelphia to improve the I-95 interchange off the Betsy Ross Bridge. Things apparently moved slowly because eleven months later, the Secretary "signed a revised plan (2014 Plan), which purported to revise and reauthorize the 2013 Plan." Slip op. at 2. PennDOT finally got around to filing the declaration of taking On April 1, 2014, more than one year after the initial authorization, but less than a year after the "reauthorized" taking. The property owner objected under section 302(a).

Although the trial court sustained the objection, on appeal the Commonwealth Court reversed. That "within one year" requirement in the statute? No problem: the reauthorized taking restarted the clock, and the trial court should not have considered the time period only from the initial March 7, 2013 authorization, but must have considered the revised-eleven-months-later authorization. We can revise, argued PennDOT, because the "normal course of highway design and engineering" means that we simply can't do things within one year. Slip op. at 5. Making us do it within a year is crazy, and we all know that legislatures aren't crazy. We're paraphrasing, of course, and PennDOT said it much better. See Slip op. at 6-7 ("PennDOT argues that the General Assembly could not have intended to restrict the process of condemnation to one year from the first set of plans drawn, because such a result would be absurd, impossible of execution, unreasonable, and against public interest."). 

That appears to be a classic straw man argument, since the statute isn't triggered by the "the first set of plans drawn" but rather the "action authorizing the declaration of taking." So maybe draw your plans, and then formally authorize the taking, guys?

Straw argument #2: The appeals court also held that section 302(e) isn't a statute of limitations. It doesn't cut off a cause of action, because a declaration of taking isn't a cause of action. Slip op. at 8 ("We agree with PennDOT that Section 302(e) of the Eminent Domain Code cannot be interpreted or enforced as though it were a statute of limitations."). Well, Your Honors, no one was arguing it was a statute of limitations and cut off a cause of action, merely that the legislature gave condemnors one year from authorization to actually file the declaration of taking. And you might see why they did that: otherwise, landowners like the ones here may be subject to an indefinite condemnation cloud created by a taking considered by the condemning agency to be the "normal course of highway design and engineering."  

As for that "shall" language in the statute? Merely directory. So the one-year "requirement" is like the Pirate's Code, more what you'd call "guidelines" than actual rules:

First, Section 302(e) relates to "timing," as it requires PennDOT to act within a specified time period, and there is no provision barring condemnation more than one year after its authorization or providing a specific consequence for the untimely filing of a declaration of taking. There is also no provision in the Eminent Domain Code indicating that Section 302(e)’s timeframe is mandatory or that time is of the essence. There is certainly no provision that remotely suggests that the absence of strict compliance with the one-year filing period results in a condemnor forever being barred from proceeding with the condemnation. Second, the purpose of the Eminent Domain Code is to provide the procedure for the exercise of the sovereign’s inherent power to condemn property for public purposes, not to deprive property owners of property. As noted above, the Eminent Domain Code "does not confer or limit the authority to condemn," and, therefore, the Eminent Domain Code should not be interpreted to deny the sovereign’s inherent power to condemn based on the untimeliness of the filing of a declaration. With regard to its procedures, the Eminent Domain Code provides property owners with notice and an opportunity to dispute the propriety of a taking or the amount to be paid for the property. Strict adherence to the time period for the filing of the declaration of taking is not necessary in order to assure adequate notice of and opportunity to challenge the condemnor’s actions.

Slip op. at 13-14 (footnotes omitted). Forgive us for thinking that the legislature might have adopted the one-year requirement so that property owners were not kept hanging on, potentially forever. 

Finally, the court rejected an earlier decision which invalidated a reauthorized taking in which the reauthorization took place after the one-year period expired. In re Redevelopment Authority of City of Allentown, 31 A.3d 321 (Pa. Cmwlth. 2011) (Ribbon Works), That case was different, this court concluded, because the condemnor there took too long to reauthorize the taking, and only did so after a year had passed from authorization. Therefore, unlike here -- where the reauthorization was only eleven months out -- the condemnor in Ribbon Works blew it, and could not reauthorize a taking that had already expired.  

One judge dissented, and concluded that the Ribbon Works rationale should have governed this case also, because condemnors cannot extend the one-year statutory deadline by reauthorizing, either before or after the time period expires:

The Ribbon Works ban on “adopting another resolution” to extend the one-year deadline for filing a declaration of taking does not provide an exception where the second resolution is done before expiration of the one-year time period. Simply, Ribbon Works established that the Secretary’s “reauthorization” constituted an invalid attempt to skirt the directive in Section 302(e) that the “condemnor shall file within one year of the action authorizing the declaration of taking a declaration of taking ....” 26 Pa. C.S. §302(e).

Dissent at 2.

As for the purpose of the statute, the dissenting judge concluded that "[t]he countervailing public policy argument is more persuasive, i.e., that condemnors should not be allowed to place private property owners in eminent domain limbo by repeatedly reauthorizing plans of acquisition." Dissent at 3. "Eminent domain limbo," the judge wrote, "is anathema to the real estate market. For this principle, he quoted Professor Kanner (Condemnation Blight: Just How Just is Just Compensation, C730 ALI-ABA 219, 223-25 (ALI 1992).  

More on the decision from the Pennsylvania Bar Institute: "PennDOT can Proceed with Condemnation under Reauthorized Acquisition Plan."

In re Condemnation of Right-of-Way for State Route 0095, Section BSR, No. 1308 CD 2014 (Pa. Cmwlth Jan. 29,...

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Links To Opinions From "Eminent Domain Update" Session at ALI-CLE Eminent Domain Conference

This morning, along with Amy Brigham Boulris, we started off the ALI-CLE Eminent Domain conference with our annual "Eminent Domain Update" session, focusing on what we see as the hottest issues and most important cases in the area which were decided in the last year. As promised, here are links to the opinions for the decisions which we discussed or which are in the written materials:

• City of Chicago v. Eychaner - it's all about the plan. 
• "To, but not through" - Kentucky Court of Appeals: pipeline isn't "in public service" to the people of Kentucky if there are no pipeline offramps in Kentucky.
• Facts, facts, facts: NC Court of Appeals strikes down taking for bad motive - Town of Matthews v. Wright.
• Iowa: Delegations of eminent domain power strictly construed. Clarke County Reservoir Comm'n v. Robins Trust.
• Minnesota Supreme Court orders condemnor to buy the farm.
• Texas Rice Land Partners v. Holland: common carriers, pipelines, and the power to take.
• Texas Supreme Court on valuation in billboard takings.
• Federal Circuit: the "before" condition in railroad easement takings includes the junk the railroad leaves behind.
• Virginia's Entry Statutes Isn't Facially Unconstitutional.
• California Supreme Court now considering the validity of the "entry statute."
• Cal Ct App: not so fast on California's entry statute.
• Temporary "no build" area while city gets around to condemnation is a taking.
• NC's "map act" is a taking because it land banks.
• Nevada Supreme Court: no taking when DOT announced future plans to condemn.
• Georgia Court of  Appeals: Owners are entitled to temporary takings damages as well as just compensation when condemnor drops taking.
• Florida: quick take deposit vests only owner's right to compensation, not to specific funds (so condemnor owns the interest of the deposit).

Also, from the afternoon session with Justice Anderson's advice from the bench, the opinion which he authored that you really should read:

• Moorehead Econ. Dev. Auth. v. Anda, Minnesota Supreme Court (2010) (per Anderson, J.).

One more, from Janet Bush Handy's talk on "Advice to Condemnees From Condemnors," the Maryland decision quoting the Reagan Dictum ("we're here from the government and we're here to help"). 

• Litz v. Maryland Dep't of the Environment (Jan. 22, 2016)

More to come. 

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ALI-CLE 2016 Eminent Domain Conference, First Day: Standing Room Only, National Expertise

Here's what's going on today, the first day of the 33d annual ALI-CLE Eminent Domain and Land Valuation conference in Austin, Texas. We're at standing room only, with a record number of attendees and our usual nationally renown faculty.

We started off the day with our usual "Eminent Domain Update" session with Amy Brigham Boulris, and as mentioned, the links to the opinions which we discussed are going to be posted in a separate post today. 

We are being followed by a panel on pipeline takings, one of the hot issues nationwide, with Joe Waldo, Matthew Ray, MAI, Thomas Peebles, and Dave Domina.

That session was followed by Professor Ilya Somin, talking about his book, "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain."  

Above are our annual "proof of life" photos taken from the lectern, to show we are actually in the room and not out enjoying all that Austin has to offer.  

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ALI-CLE 2016 Eminent Domain Conference: Austin Scouting Report

Austin, Texas, is where we're at for the next few days, for the 2016 edition of the American Law Institute-CLE Eminent Domain and Land Valuation conference, now in its 33d year. First time we're in Austin, however, and our registration numbers are looking very good, and we haven't had this big a turnout in years.

We haven't been back to Austin in a few years ourselves, so we did what law nerds sometimes do when we go to new towns: visit the local courtroom to check out the scene. So we dropped by the Supreme Court of Texas to take a look. Turns out it was an off-day for the court and it was not in session and the courtroom was locked. But Security suggested that if we asked the Clerk nicely, she might retrieve the key and let us take a look around. And you know what? She did. How very nice. 

And an impressive courtroom it is. Modern, yet imposing (as befitting a Temple of Justice®). Here's the view from counsel's lectern, complete with a LCD screen, and a Justice crib sheet in the event you vapor lock and forget one of their names. 

And here's a view of a courtroom we advocates don't often see, the one where the Justices are looking at us. Or down at us. We're never quite sure. 

Next, we hopped next door to the state capitol building, an imposing 1882 domed structure, complete with its famous door hinges. Took one of the free tours ("Heroes of the Texas Revolution" -- well worth it, by the way). Saw portraits of famous Texans Audie Murphy, Ike, and GWB. No official portrait yet completed of Rick Perry, though. We speculate that he's still deciding whether to wear the glasses.

Up on the third floor (by the bathrooms, next to the elevators) are a bunch of paintings of Texas judges. All have names, except this poor chap, labeled "Unknown Judge." Strange, painting doesn't seem that old, judging by the modern outfit. You'd think someone would recognize him. Maybe he put some legislator in jail, and this was their revenge: Unknown Judge.

Finally, down to the main floor, smack dab in the center of the building. Looking up to the interior of the dome, 20+ stories high. That's a star in the middle (lots of those in all state buildings around these parts), along with the word T-E-X-A-S around it, just in case you don't know where you are. Click on the photo to enlarge, if you can't quite see it in the thumbnail.

The Conference kicks off on Thursday, with a welcoming talk by Austin Mayor Steve Adler, who just happens to be a (former) eminent domain lawyer. We'll have more as we progress.

Brochure/Agenda - 2016 American Law Institute-CLE Eminent Domain Conference, Austin

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More On The Upcoming ALI-CLE Eminent Domain Conference (Austin, Jan 28-30, 2016)

It's Here - 2016 ALI-CLE Eminent Domain Conference: Complete Agenda, Faculty, Registration Information

Here's the full agenda for the 2016 Eminent Domain and Land Valuation Litigation / Condemnation 101 Conference, January 28-30, 2016, in Austin, Texas. 

Together with our friend and colleague Joe Waldo, we think we're put together a pretty good program that covers a lot of ground. This is the first time the conference has been to Austin, and we're starting off with a talk by Austin Mayor Steve Adler, who in his former life was an eminent domain lawyer. Other highlights:

• Professor Ilya Somin will speak about his recently-published book in a segment entitled "The Impact of Kelo and the Limits of Eminent Domain."
• "Pipelines and Energy Corridors: Valuation Perspectives of Condemnors and Condemnees" with the lawyers on the front lines of one of the hottest topics in eminent domain law nationwide.
• Retired Minnesota Supreme Court Justice Paul H. Anderson will give us his tips in "The Art of Effective Negotiation - A Judicial View." Justice Anderson has a unique view on eminent domain, since he not only litigated cases as a lawyer and resolved them as a jurist, he was also a property owner in a condemnation action. 
• "Advice to Condemnees From Condemnors" - two lawyers who represent agencies with the power of eminent domain will share their thoughts on the do's and don't from a condemnor perspective. 
• You often hear "war stories" about lawyers' successes. But often, you learn the most from your mistakes, and your recovery from those errors. In "Eminent Domain Trials: Lessons Learned the Hard Way," three experienced eminent domain lawyers will reveal their missteps, and how they became better lawyers as a result.
• Dana Berliner and W. Andrew Gowder will present about one of the cutting-edge topics in the nation's courtrooms: "First Amendment for Fifth Amendment Lawyers: Free Speech, Signs, Defamation, FOIA, and RLUIPA Claims."
• The concept of highest and best use means that eminent domain lawyers are often land use lawyers as well. In "Probability of Rezoning as an Element of Valuation," land use law experts Nikelle Meade, Dwight Merriam, and Charles W. (Chase) Ruffin will get you the information you need to know. 

We especially focused on the ethics component this year, and are looking forward to the session on "Ethics: Tips and Traps for the Eminent Domain Practitioner" at the first plenary session on the second day. 

The complete agenda is posted here, and we think it has more than a few sessions that will catch your interest. 

The faculty, as you might have guessed, is the best-of-the-best, selected from lawyers who represent both property owners and condemnors:

• Steve Adler, Mayor, City of Austin, Texas
• Jody Harper Alderman, Alderman Bernstein, Denver
• Paul H. Anderson, Soule & Stull, Minneapolis; Retired Associate Justice, Minnesota Supreme Court
• Robert E. Bainbridge, C-Store Valuations, Dallas
• Joshua E. Baker, Waldo & Lyle, P.C., Norfolk, Virginia
• Stanley G. Barr, Jr., Kaufman & Canoles, P.C., Norfolk, Virginia
• Sara K. Beachy, Assistant Attorney General, Wisconsin Department of Justice, Madison
• Michael M. Berger, Manatt, Phelps & Phillips, LLP, Los Angeles
• Dana Berliner, Director, Institute for Justice, Arlington, Virginia
• Susan Bonnen, Chief Appellate Counsel, Texas Office of the Attorney General, Austin
• Amy Brigham Boulris, Gunster, Yoakley & Stewart, P.A., Miami
• Roy R. Brandys, Barron & Adler, LLP, Austin
• James S. Burling, Director of Litigation, Pacific Legal Foundation, Sacramento
• Ivy N. Cadle, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Macon, Georgia
• F. Adam Cherry, III, Randoph, Boyd, Cherry and Vaughan, Richmond, Virginia
• Christopher M. Clough, Barron & Adler, LLP, Austin
• Anthony F. Della Pelle, McKirdy & Riskin P.A., Morristown, New Jersey
• Robert C. Dew, Jr., GDS Associates, Inc./Hi-Line Engineering, Marietta, Georgia
• David A. Domina, Domina Law Group PC LLO, Omaha, Nebraska
• Jill S. Gelineau, Schwabe, Williamson & Wyatt, P.C., Portland, Oregon
• W. Andrew Gowder, Jr., Pratt-Thomas Walker, P.A., Charleston, South Carolina
• Janet Bush Handy, Deputy Counsel, Assistant Attorney General, Maryland State Highway Administration, Baltimore
• Daniel D. Hannula, Hannula & Halom, Superior, Wisconsin
• Mark F. (Thor) Hearne, II, Arent Fox LLP, Washington, D.C.
• Jamila A. Johnson, Schwabe, Williamson & Wyatt, Seattle
• Nikelle S. Meade, Husch Blackwell LLP, Austin
• Dwight H. Merriam, Robinson & Cole LLP, Hartford, Connecticut
• Mark M. Murakami, Damon Key Leong Kupchak Hastert, L.C., Honolulu
• Robert B. Neblett, Jackson Walker L.L.P., Austin
• Thomas H. Peebles IV, Waller Lansden Dortch & Davis, LLP, Nashville, Tennessee
• J. Casey Pipes, Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, Alabama
• Matthew P. Ray, MAI, Cantrell & Ray, Inc., Jacksonville, Florida
• Rick E. Rayl, Nossaman LLP, Irvine, California
• Joshua H. Rikon, Goldstein Rikon Rikon & Houghton P.C., New York
• Charles W. Ruffin, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Atlanta
• Mark D. Savin, Fredrikson & Byron, P.A., Minneapolis
• Paul R. Scott, Smith, Phillips, Mitchell, Scott & Nowak, LLP, Hernando, Mississippi
• Joseph V. Sherman, Waldo & Lyle, P.C., Norfolk, Virginia
• Randall A. Smith, Smith & Fawer, L.L.C., New Orleans
• Ilya Somin, Professor of Law, George Mason University School of Law, Arlington, Virginia
• Michael Sullivan, Range West Consultants LLC, Prescott, Arizona
• Joseph P. Suntum, Miller, Miller & Canby, Chartered, Rockville, Maryland
• Christian F. Torgrimson, Pursley Friese Torgrimson, Atlanta
• Martin E. Wolf, Gordon, Wolf & Carney, Chartered, Towson, Maryland

Register here (includes hotel registration information as well as information on how to take advantage of early-bird and multiple attendee registrations). 

The 2016 Conference is looking good, and we're looking forward to topping last year's San Francisco attendance.

Come, join your colleagues for three days of fantastic programming, networking, and fun in Austin. Hope to see you there. 

Breaking Up Communities For Redevelopment

A piece on the humor site Cracked, "4 Thriving Communities That Rich People Destroyed On Purpose," tells an old story: modest-but-decent places "redeveloped" into (1) Dodger Stadium, (2) Brazil's Olympic venues; (3) the Salton Sea, and (4) Central Park, respectively.

(We note that the segment on the Salton Sea is the odd man out, and we can't figure out how that one fits with the other three. But no matter.)

In telling the story of the destruction of Los Angeles' Chavez Ravine to make way for the ballpark, the piece links to the above video, which contains interviews with many of the Ravine's former residents. The video also recounts how, using eminent domain, the City of Los Angeles condemned the homes in the village, supposedly to make way for a new, modern housing project.

The homeowners were offered about $10,000 for their homes and promised that they would have first rights to units in the new buildings. But predictably, the amount of compensation they were provided was legally inadequate as well as insufficient to purchase replacement homes elsewhere in LA, and the promised housing project was never built, only the stadium. The video also shows that even one of the head planners of the housing project was unaware of the real end game and the forces at play. For more, see Angeleno Gideon Kanner's multiple takes on Chavez Ravine here. As we were reminded recently when we revisited our review of the documentary "You've Been Trumped," new and flashy isn't always better, and many people may prefer modest and comfortable to promises of the latest and greatest. 

At the same time, there's the danger of viewing the past through an overly romantic lens, particularly when the former residents of Chavez Ravine interviewed in the film who recalled life there fondly were by and large children when they resided there. Kids can have a much different view of the hardships of life than their parents. I was reminded of that by my parents' experiences: both grew up in depression-era America, mom in a dirt-floored, corrugated steel roofed house on an Oahu sugar plantation (now the site of Aloha Stadium), and dad in a rural town in upstate New York. Yes, they had family and community, but life was also very, very difficult. Although later they both looked back with some nostalgia, neither thought that they had made a mistake in leaving the hardships of their youths.   

But they had the choice to leave that life behind. And maybe that is the difference between their view, and those of the former residents of Chavez Ravine, who were forced out and had no say in their own destinies. The video shows that even decades on, the pain of being deprived of a choice remains palpable.   

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Upcoming APA Webinar: 2015 Planning Law Review

On Wednesday, July 1, 2015, the American Planning Association is putting on the 2015 Planning Law Review, a program highlighting the most important and topical cases decided by the courts recently. Here's the program description:

Planning feels the impact of decisions from the U.S. Supreme Court, federal district courts, and state courts. How will their rulings affect you? Get a briefing on the year's legal developments, from First Amendment issues to environmental actions, housing, and equal access. Presenters also will discuss major legislative initiatives and APA's amicus filings. Join in a lively, informative program you and your staff, colleagues, and officials won't want to miss. This program is also suitable for planning commissioners.

Joining me on the faculty are Jason Jordan, Director, Policy and Communications, American Planning Association (Moderator); Nancy Ellen Stroud, Lewis, Stroud & Deutsch; John M. Baker, Greene Espel; and John Echeverria, Professor of Law, Vermont Law School.

Decisions we're planning on covering include Horne (raisin takings case), Reed v. Town of Gilbert (municipal regulations of signs), the Texas fair housing case, the California Supreme Court case on "inclusionary housing" requirements, and others.

More here, including registration information. A single registration will allow an unlimited number of attendees at a location, so it's a good deal. Please join us for some interesting discussion and debate, and nearly the first word on all of these decisions. 

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Kelo At 10: Still Stinks, And A Decade Has Not Lessened The Odor

In case you somehow missed it, takings junkies, today, June 23, 2015, is the tenth anniversary of the U.S. Supreme Court's excreable 5-4 decision in Kelo v. City of New London, 545 U.S. 469 (2005), and just about anyone who is anyone in our field has weighed in with a retrospective. We don't have much to add, since wiser minds than ours have some very cogent thoughts.

But here's how we view the decision, ten years on:

• Still stinks. A decade has not lessened the odor.
• We filed an amicus brief in Kelo explaining why economic development wasn't enough to support New London's taking of a perfectly good home, and we still think we're right. 
• Many states and local jurisdictions reacted and adopted legislative reforms. Some helpful, many not. Guess which state did nothing, despite several proposals made over several legislative sessions? Hawaii, where we say we like the little guy, but in reality we love government power. 
• Not all doom and gloom locally, however: the Hawaii Supreme Court, ironically relying on language in Kelo, held in a case in which we represented the property owner that a condemnor cannot merely rely on its own claim of public use, and that "although our courts afford substantial deference to the government's asserted public purpose for a taking in a condemnation proceeding, where there is evidence that the asserted purpose is pretextual, courts should consider a landowner's defense of pretext." County of Hawaii v. C&J Coupe Family Ltd. P'ship, 119 Haw. 352, 198 P.3d 615 (2008). 
• So thank you, Suzette Kelo and IJ for taking up the fight: the first two posts on this blog were about the decision (see "Eminent Domain: The Offer You Can't Refuse," and "Kelo Exposes Deeper Problems With Eminent Domain"), and writing those convinced me to keep blogging. 
• In the next few days we'll post up some of the more interesting items we have gathered on the Kelo anniversary, but in the meantime if you want the one-stop-shop, buy this book: lawprof Ilya Somin's "The Grasping Hand: Kelo v. City of New London and The Limits of Eminent Domain. We're reading it now and will have a review when we're done. But man, it's good. 
• Finally, one of these days, the Supreme Court is going to take up another Public Use Clause case. We tried to convince them that one of our cases was The One (cert petition here), but to no avail. But we'll collectively keep on trying, and one day we'll have happy news to report.

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Upcoming Conference On Kelo's 10th Anniversary

Hardly seems like a decade ago that the Supreme Court gave us eminent domain lawyers something to talk about at cocktail parties: the Court's infamous and widely-hated decision in Kelo v. City of New London. 

Find out about what the intervening ten years has brought us from the Cato Institute, which is sponsoring a program later this week  about "Property Rights on the 10th Anniversary of Kelo v. City of New London." 

Featuring Ilya Somin, Author, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law; Scott Bullock, Senior Attorney, Institute for Justice and Plaintiffs’ Counsel, Kelo v. City of New London; Wesley W. Horton, Partner, Horton, Shields & Knox, P.C. and Defendants’ Counsel, Kelo v. City of New London; Dana Berliner, Director of Litigation, Institute for Justice; Jeremy Hopkins, Waldo & Lyle, P.C.; moderated by Ilya Shapiro, Senior Fellow, Cato Institute; and Roger Pilon, Vice President for Legal Affairs, Cato Institute. 

The full agenda and registration information is here. If you can't be in D.C. this week, you can watch the conference live here. 

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New Jersey: When Designating Blight, Baby Can Be Tossed Without First Showing The Bathwater's Dirty

A few years ago, in Gallenthin Realty Development, Inc. v Borough of Paulsboro, 191 N.J. 344 (2007), the New Jersey Supreme Court held that in order to target property for redevelopment as "blighted," the government must show that it is in such condition that it "negatively affects surrounding areas" by promoting conditions that can develop into blight. In that case, the targeted property was mostly undeveloped wetlands, and the "blight" of which it stood accused was the owner's failure to put it to a more intensive economic use. But that was not sufficient to support a blight finding, and the court held that the government must have done more than simply recited the standards for blight redevelopment, and declare they were met. 

We were going to do a complete write-up of the New Jersey court's latest foray into blight and redevelopment, 62-64 Main Street LLC v. City of Hackensack, No. A-19/20-13 (Mar. 23, 2015), but wanted to hold off until the "local knowledge" -- Anthony Della Pelle, our colleague at the New Jersey Condemnation Law blog -- weighed in. He now has, and in "Will the Latest New Jersey Supreme Court Property Rights Decision Revive the Redevelopment Market?," writes:

Last week, a divided New Jersey Supreme Court ruled that condemning agencies do not have to prove that properties within an area "in need of redevelopment" have a deleterious effect on the surrounding area in order for those properties to be taken via eminent domain. The 3-2 majority opinion, authored by Justice Barry Albin, concluded that, so long as there is substantial evidence in the record that the legislative definitions set forth in New Jersey’s Local Redevelopment and Housing Law ("LHRL") are met, a court is bound to affirm a local government’s redevelopment designation. The decision has stirred debate in the legal community as to whether the criteria for condemning property for redevelopment purposes has been eased, and whether it represents a departure from the Court’s landmark 2007 decision in Gallenthin Realty Development, Inc. v Borough of Paulsboro, 191 N.J. 344 (2007).

One big difference between this latest case and Gallenthin was that here, the properties declared blighted were actually "boarded up" and displayed "prominent signs of structural deterioration," and not simply economically underutilized. Moreover, according to the dissenting Chief Justice, the surrounding area is a "thriving, commercial area that is home to a newly built CVS, Auto Zone and branch of TD Bank." Slip op. at 37. So it seems that this is the reverse of the classic Berman situation, where the court held it was okay to blight the baby (well-maintained property) if the legislature says the bathwater (the surrounding area) was dirty. The Hackensack majority, however, based its decision in the fact that the blight designation in Gallenthin was based on the criteria in subsection (e) of New Jersey's Blighted Areas statute (the property negatively affects other areas), while Hackensack's designation was based on subsections (a), (b), and (d) (which relate to the conditions of the property itself). 

Read Tony's post for more details on the case, and links to further analysis to make your own decision about whether you find that convincing. The dissenting Chief Justice didn't think so, and wrote:

Today, the majority takes a step backward from Gallenthin. In assessing different sections of the same law, N.J.S.A. 40A:12A-5(a), (b), and (d), the majority concludes that when the government designates an area to be “in need of redevelopment” -- a critical step in the takings process -- it need not affirmatively prove both elements set forth in Gallenthin to show that a property is “blighted.” Instead, the majority permits the designation of private land for redevelopment even when government officials have not shown a decadent effect on surrounding properties. 

Dissent at 2-3. 

62-64 Main Street, LLC v. City of Hackensack, No. A-19/20-13 (N.J. Mar. 23, 2015)

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This is a longer post, but since we think this case may be going further and is worth watching, we're going to hit it up in some detail.

In City of Chicago v. Eychaner, No. 05L050792 (Jan. 21, 2015), the Illinois Appellate Court upheld the taking of private vacant land near the Chicago Loop (Eychaner's Land on the map below) so that it could be transferred to the owners of a nearby chocolate factory (Blommer's Factory).

The court viewed this "A-to-B" taking as merely a part of an area redevelopment and tax increment finance plan, which would keep the chocolate factory from moving out as the area gentrified.

The opinion contains a long recitation of the reasons for the taking, how the Planned Manufacturing District (PMD) was designed to "protect[] the 2,800 industrial jobs located in the area, [to] prevent[] residential encroachment on the existing manufacturing facilities, and [to] encourag[e] manufactureres to invest in their facilities," and how the process ultimately resulted in Eychaner's land being transferred to Blommer. Slip op. at 3-4. In addition to the chocolate factory, the PMD area included 8 other "industrial firms" besides Blommer. But the opinion (and, apparently, the plan) focused on Blommer's chocolate factory. Ironically, Blommer didn't want to be included in the PMD either, because a property to its south was already scheduled for a "massive residential development," which meant there would be no buffer between Blommer's heavy industrial use and these future new residents, who would be sure to find "intolerable," the smell, noise, and traffic generated by the chocolate factory. 

Because it wanted to avoid these future troubles, Blommer suggested that the city exclude it from the PMD, or prohibit the residential development. Otherwise, it might have to leave Chicago and convert its property to some other use. 

Or ... maybe we could spread our campus north, suggested Blommer. Initially, these plans did not include Eychaner's land, but the very next month the city wrote to Blommer:

expressing "[w]e are committed to keeping quality manufacturing firms, such as [Blommer] in the City. To that end, we are very interested in helping your create a larger 'industrial campus' as a means to internalize your loading operations, limit traffic impacts on adjacent streets, and provide room to expand." The commissioner wrote that the Plan Commission would: (i) work on the possibility of closing parts of Hubbard Street and Jefferson Street; (ii) pursue the creation of a tax-increment finance district to finance public infrastructure improvements and "any potential acquisitions," which now included Eychaner's land; and (iii) defer approval of residential development south of Blommer's plant "to explore design, use and density issues." The PMD, the commissioner noted, would "ensure that properties to the north and east of [Blommer's] factory are not developed for residential use," and also made clear that Blommer's "public support for this action [was] crucial in getting this measure through the legislative process."

Slip op. at 8-9 (emphasis added). By the following month the plan was even more concrete, and "Blommer commissioned an architect to draw up a site plan for its expanded campus. That plan included Eychaner's land[,]" and proposed using the city's eminent domain power to take it and transfer it to Blommer for $1. Slip op. at 9.

Amazing how things just happen, isn't it? And who said San Francisco is "the city that knows how?"

The city complained that "Blommers seems to be negotiating as if they have us over [a] barrel," but ultimately a few months later, the city adopted the PMD, and began the tax increment financing scheme that would fund the thing. [Sidebar: for a very good primer on TIFs, you can't do better than the ABA book "Tax Increment Financing" (2012) by our ABA State and Local Government Law Section colleagues David Callies and Andy Gowder.] The city commissioned studies, and produced a 68-page report which concluded:

that tax-increment financing would induce private investment and arrest blighting factors in the area. Because the area had not been subject to growth and reinvestment, the study reasoned that property owners would not invest in their properties without tax-increment financing. The study anticipated benefits, including: (i) stronger economic vitality; (ii) increased construction and long-term employment opportunities; (iii) replacement of inappropriate uses, blight, and vacant properties with viable, high-quality developments; (iv) the elimination of physical impediments, such as roads in poor condition; (v) the construction of public improvements to attract private investment; (vi) job-training services to make the area more attractive to investors and employers; and (vii) opportunities for minority- and women-owned businesses to share in the redevelopment.

Slip op. at 13. Eychaner's land was not blighted, but there was some blight in the area, so Eychaner's land was soon placed into a "conservation area" because in the future it "may become a blighted area." Id. at 14. A few months later, Blommer submitted its proposal to redevelop the area around the factory, which included Eychaner's land, for all of the usual reasons that support an economic development taking: creating and retaining jobs, increased tax revenue, and to ensure that the plant stayed in the city. 

When Eychaner refused to sell to Blommer, down came the city's eminent domain hammer. 

The appellate court distinguished Southwest Illinois Dev. Auth. v. National City Environmental, LLC, 768 N.E.2d 1 (Ill. 2002), the case in which the Illinois Supreme Court invalidated a taking for private benefit, concluding that an A-to-B taking with "minimal public benefit" which "principally benefitted" a private party could not withstand public use scrutiny. See id. at 9 (citing Limits Industrial R.R. Co. v. American Spiral Pipe Works, 151 N.E. 567 (Ill. 1926)). Concluding that the taking of private property for an adjacent racetrack's parking lot was a "purely private benefit and lacks a showing of a supporting legislative purpose," the SWIDA court held that the "true beneficiaries of this taking are private businesses and not the public." SWIDA, 768 N.E.2d at 10.

The Eychaner court held SWIDA was different because they didn't have plans. In SWIDA the condemnor produced no studies, and thus the court was able to see through the pretext to the "sweetheart deal" to understand that the taking was not intended to benefit the public. Slip op. at 21. It didn't matter whether the public was allowed to access the property under its new ownership, because the key issue is the motive of the condemnor. Relying on Kelo, the Eychaner court concluded that the city had adequately documented that its motives were pure because it showed the taking of Eychaner's land was just part of a plan. A "carefully formulated" economic development plan, not a sweetheart deal. Thus, the court held the taking "unquestionably serves a public purpose of preventing blight, promoting economic revitalization, and protecting existing industry." Slip op. at 25.  

The court rejected Eychaner's pretext arguments after acknowledging that "[r]ecognizing the difference between a valid public use and a sham can be challenging." Slip op. at 28. Boy howdy. But the existence of the plans made it much less challenging, indeed a foregone conclusion:

Recognizing the difference between a valid public use and a sham can be challenging. But a telling feature of sound public use in the context of economic redevelopment is the existence of a well-developed, publicly vetted, and thoughtful economic development plan. Such a plan was present in Kelo, 545 U.S. at 483-84, and Gutknecht, 3 Ill. 2d at 542-43, but absent in SWIDA, 199 Ill. 2d at 240 ("SWIDA did not conduct or commission a thorough study of the parking situation at [the racetrack]. Nor did it formulate any economic plan requiring additional parking at the racetrack."). A taking will likely pass constitutional muster where done in furtherance of a sound economic development plan, rather than the plan retroactively justifying the taking. Cf. Romeo v. Cranston Redevelopment Agency, 254 A.2d 426, 433 (R.I. 1969) ("governing bodies must either plan for the development or redevelopment of urban areas or permit them to become more congested, deteriorated, obsolescent, unhealthy, stagnant, inefficient and costly" (internal quotation marks omitted)).

Slip op. at 28. This was no "sham to take [Eychaner's] property." Slip op. at 30. The city had an economic revitalization plan, and the taking was but a part of it because it "aligned" with the city's stated goals to retaining existing industry (Blommer), prevents conflict beteween residential and industrial use (Blommer), and promotes investment and revitalization (Blommer's) in a conservation area. Id. at. 31. 

Having found the taking constitutional, the court did have problems with the way the trial court handled the just compensation issue, concluding that the "scope of the project" rule should have resulted in the trial court excluding evidence of the PMD zoning. The court held that the  "public improvement" (the project) "is Blommer's expanded industrial campus, the ultimate use of Eychaner's property."

The record indicates that the creation of the PMD, the River West TIF, and the taking of Eychaner's land were all a single project. The City began the process of creating the PMD in late 1999 with the goal of protecting industrial users like Blommer. The City's study regarding the River West TIF indicated that it was a "financial mechanism necessary to implement the goals and objectives of" the PMD. The taking of Eychaner's land was not only an integral part of creating the PMD, but also served to carry out the goals of PMD and River West TIF. Namely, the preservation of the City's industry, prevention of conflicts between industrial and residential uses, job creation, and increased tax revenue.

Slip op. at 34-35. Ah, the plan again. Note the irony in the city's argument: the "project" for purposes of the scope of the project rule -- supposedly the property owner's expectations of why its property was taken -- was not to give it to its neighbor, when that was exactly the city's argument supporting its claims of public use. The court rejected as "speculative" the city's argument that "Eychaner's land would have been included in the PMD even if it was not taken for Blommer's expansion." Id. at 35.   

Points to the court for including several maps of the properties and the plans. We wish more opinions did this. 

More on the story from Chicago Real Estate Daily: "Eychaner wins new trial on value of River West land."

There may be more on this case, so stay tuned. 

City of Chicago v. Eychaner, No. 05L050792 (Ill. App. Jan. 21, 2015)

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4th Cir OK's City's Sign Ordinance: You Can "Whisper" Your Anti-Eminent Domain Message, But You Can't "Shout" It

In a 2-1 decision, the U.S. Court of Appeals for the Fourth Circuit concluded that Norfolk, Virginia's sign ordinance did not violate the First Amendment, when it was applied to bar the anti-eminent domain banner shown above.  

Central Radio Co. Inc. v. City of Norfolk, No. 13-1996 (4th Cir. Jan. 13, 2015), arose from a situation that also resulted in a property-owner favorable ruling from the Virginia Supreme Court in 2013. See PKO Ventures, LLC v. Norfolk Redevelopment and Housing Authority, 747 S.E.2d 826 (Va. Sep. 12, 2013) (a case won by our Owners' Counsel colleagues at Waldo & Lyle). The city's redevelopment authority planned on taking property to transfer it to Old Dominion University, but the Supreme Court shut it down, holding that the agency did not have the authority to take non-blighted property. See our write up of that decision here. 

While it was pending, however, the case generated much public controversy, and a local business put up a banner on its building voicing its feelings about the situation. As the Fourth Circuit's majority opinon noted, "[t]he plaintiffs intended that the banner 'be visible for several blocks along Hampton Boulevard' and 'make a statement about Central Radio’s fight with the NRHA,' which would constitute 'a shout' rather than 'a whisper.'" Slip op. at 6.

An Old Dominion employee saw the shouting, complained, and city zoning enforcement staff was soon on the case. Get into compliance with the sign code -- which regulates the size, placement, construction, and method of illumination of signs -- or be fined, they said. As you might expect, the signers didn't, and they were cited. Next stop, federal court: 

The plaintiffs alleged that the sign code was unconstitutional because it subjected their display to size and location restrictions, but exempted certain “flag[s] or emblem[s]” and “works of art” from any similar limitations. The plaintiffs also alleged that the sign code’s provision requiring them to obtain a sign certificate before erecting a display effectuated an impermissible prior restraint on speech, and that the City selectively applied the sign code to the plaintiffs’ display in a discriminatory manner. In addition to requesting declaratory relief and nominal damages, the plaintiffs moved for a temporary restraining order and a preliminary injunction.

Slip op. at 8. 

The district court rejected their arguments, and the Fourth Circuit affirmed, concluding that the sign ordinance was content-neutral, even though it exempted national and religious "flags" and "emblems," and "works of art" that do not relate to a product or service. The city lacked "censorial intent to value some forms of speech over others to distort public debate, to restrict expression because of its message, its ideas, its subject matter, or to prohibit the express of an idea simply because society finds the idea itself offensive or disagreeable." Slip op. at 11. Bottom line: the plaintiffs weren't singled out, and the city regulates most every sign:

The City generally allows signs regardless of the message displayed, and simply restricts the time, place, or manner of their location. Exemptions to those restrictions may have an “incidental effect on some speakers or messages,” but such exemptions do not convert the sign code into a content-based restriction on speech when the exemptions bear a “reasonable relationship” to the City’s asserted interests.

Content neutrality results in "intermediate scrutiny," and the court concluded the ordinance furthered the city's interest in physical appearance, and reducing distractions, was narrowly tailored, and left open alternative channels of communication. The plaintiffs could have reduced the size of their 375 square-foot banner to 60 square feet, and they'd be okay.

Whisper, don't shout. 

These "anti-anti-eminent domain protest sign" situations are not uncommon (see this case from the 8th Circuit, and this ongoing case in our own backyard, for example). When you cast the content net wider, there's actually an entire subspecies of First Amendment law regarding signs. Yeah, we knew that. 

The latest case seems to create a circuit split. The Eighth Circuit, in the opinion linked above apprears to have reached the opposite conclusion on a very similar ordinance, concluding that St. Louis' sign ordinance was not content neutral.

The plaintiffs have vowed to seek review in the Supreme Court. Because they are represented by the Institute for Justice (and because they can wave the circuit split flag), we don't doubt they will. 

Hat tip to colleague Elaine Mittleman for the heads-up on this decision. 

Central Radio Co. Inc. v. City of Norfolk, No. 13-1996 (4th Cir. Jan. 13, 2015)

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Texas (Reluctantly) Finds No Regulatory Takings Claim

The Texas Supreme Court is generally pretty good about property rights. See this opinion, this one, and this one, for examples.

So when the legal analysis in one of its regulatory takings/inverse condemnation opinions has the following language -- especially in a case where a municipal government has treated the plaintiffs/property owners very badly -- it would be understandable if you predicted the court was coming down on the side of the property owners:

The right to acquire and maintain private property is among our most cherished liberties. As Locke explained, the value of private property lies not only in its objective utility, but also in any personal investment therein. See John Locke, Two Treatises of Government 134 (Thomas I. Cook ed., Hafner Press 1947) (1689). Accordingly, the right to undisturbed enjoyment of residential property is all the more sacred. The unique importance of the home is reflected in our Bill of Rights, which protects us from uncompensated dispossession, unwarranted search, and unwanted guests. See U.S. Const. amends. III, IV, V. This Court, in particular, has long recognized the undisturbed enjoyment of private property as “a foundational liberty, not a contingent privilege.” Tex. Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192, 204 n.34 (Tex. 2012).

The preservation of these property rights is “one of the most important purposes of government.” Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex. 1977).

City of Houston v. Carlson, No. 13--435, slip op. at 4-5 (Dec. 19, 2014).

But alas, it was not to be. 

The case involved a 108-unit condo that "was suffering from an increasing number of cosmetic and structural problems, and the condominium owners disagreed as to how best address those issues." Slip op. at 2. One of the owners informed the city, which investigated, found that the underground parking facility might fail, and declared the entire condominium uninhabitable. The city gave the condo 10 days to fix the problems.

After 30 days passed, the city did not issue another citation but gave the residents 31 days to get out. 

Ultimately, a Texas court of appeals reversed the order to get out, concluding that it violated procedural due process. The owners sold the condo for redevelopment, and then several of the owners sued the city for inverse condemnation, alleging that the vacate order was a taking. The trial court dismissed, but the court of appeals reversed, holding that the plaintiffs stated a valid takings claim.

The Supreme Court reversed, concluding that "although the [property owners] insist they have suffered a regulatory taking, their allegations do not support the claim." Slip op. at 6. The plaintiffs did not contest any of the city's regulations, nor did they claim that the regulations were "so burdensome as to interfere with the use of their property." Id. "Instead, the respondents object only to the penalty imposed and the manner in which the city enforced its standards." Id. All they complained about was that the city didn't tell them what the violations were, and that the remedy was excessive. 

The key moment in the oral arguments begins at the 16:25 mark, where Justice Guzman and counsel had this colloquy:

Justice Guzman: So they presumably violated the due process rights of your homeowners. But assuming without deciding that there is no remedy available under the takings theory -- just for purposes of argument -- did you pursue, or have you found any other avenue other than a takings theory for making your homeowners whole? And if you have, did you assert that in the trial court?

Counsel: The answer is I know of no other remedy other than a takings case. In this case, I don't know how to describe the frustration of not only my clients but the other people living there when you're told to vacate your property, you can't go back, and you are not told what's wrong. You're simply told -- and it's in the record in a letter -- "we're concerned." I don't know how you remedy a concern. The second thing is in this case is which makes it so abusive, is the City of Houston had a far, far lesser alternative. And that was to issue a citation that says you violated our building code. But the problem there with issuing a citation is you would have had to have told us specifically what was wrong. And of course the city couldn't do that because there was nothing wrong structurally with these places. There was a concern. 

The opinion does not directly address the police power vs. takings argument that we have seen crop up more directly in decisions of other courts. See, for example, this recent opinion by the Alaska Supreme Court, this one from the Federal Circuit, and one from the Arizona Court of Appeals. Unlike this one, however, those cases were instances of the property owners being made to suffer for the wrongs of others. The Texas court's underlying rationale seems more like that of the Supreme Court of North Dakota in a case where the plaintiff's troubles that resulted in the alleged taking were ultimately of his own making. 

In a very short concurring opinion, two justices agreed with the outcome and wrote separately to note that the city "acted rather shabbilty toward its citizens" when it "enforced the order in contravention of state law and the City's own protocol." The justices concluded that "Houstonians deserve better," and that this was a due process violation.  

More on the case:

• Appellate briefs
• Oral argument video

City of Houston v. Carlson, No. 13-0435 (Tex. Dec. 19, 2014)

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Kelo On The Silver Screen: "Culture can help tame eminent domain abuse"

Little Pink House, Jeff Benedict's book about the Kelo v. City of New London case, looks like it is going to become a feature film. 

Earlier, we heard it was going to be a TV (Lifetime) movie with Brooke Shields in the protagonist role, but it appears that they're going for your local multiplex or arthouse instead, according to an op-ed in USA Today with the interesting title of "Culture can help tame eminent domain abuse" ("We are producing a feature film based on Kelo's historic saga, and we hope to achieve some of the impact garnered by Erin Brockovich, another underdog film about a real-life working-class woman.").

The authors, producers of the film, suggest that if only the public knew about Susette Kelo's story, attitudes would shift about eminent domain abuse:

Erin Brockovich showed how culture can elevate otherwise obscure issues to drive reform. Cultural depictions played an important role in the recent shift in public support for same-sex marriage and marijuana legalization, and Kelo's courageous struggle could likewise help viewers understand the human cost of eminent domain abuse.

After all, her story already reads like a feature film. The recently divorced nurse was on her own for the first time in her life and fell in love with a rundown little house overlooking a river in New London, Conn., She fixed it up with her own hands and painted it pink. Little did she know that power brokers from city hall to the governor's mansion were bent on seizing her little pink house and the homes of her neighbors so that Pfizer, a pharmaceutical company, could enhance its corporate facilities. City officials promised more tax revenue and Pfizer executives looked forward to high-end housing and other perks. (Pfizer had high hopes for a soon-to-be-released drug called Viagra.)

Nine years after being taken from her, the land where Kelo and her neighbors once lived remains a barren lot, home to migratory birds and feral cats. So much for tax revenue.

We hope our film, Little Pink House, will help raise awareness of eminent domain abuse to the point where we could be done with this odious strain of cronyism once and for all.

While we wish them well, we shouldn't overlook that there already have been a couple of films about eminent domain abuse, Battle for Brooklyn, and You've Been Trumped, and although those were not big Hollywood productions, they illustrated well the dynamic of cronyism gone wild. And as far as we can tell, crony capitalism and eminent domain abuse are still with us. Even if we remain somewhat skeptical of a forthcoming sea change in attitudes, we wish the producers well, and promise that we''ll be among the first in line to see Little Pink House when it is released.  

And don't forget our suggestions for casting, posted here. Producers: feel free to run with our suggestions, but don't forget our screen credit, please.  

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Atlantic Yards: How About Calling It The "Jay Z" Medal?

You remember Battle for Brooklyn, the documentary which chronicles the eminent domain fight over New York's Atlantic Yards project? (Read our review of the film here to refresh your recollection.)

Well here's the latest chapter. Or perhaps "epilogue" is more appropriate, because the former property owners have long since been evicted, the homes have been razed, and the New Jersey Brooklyn Nets are ensconced in the Barclays Center. (The promised affordable housing and "jobs, jobs, jobs?" Eh, not so much, but who's counting?)

According to this story in the New York Times, preservationists are planning to award the private beneficiaries of the city's exercise of eminent domain something called the "Jacqueline Kennedy Onassis Medal." Seriously:

The Municipal Art Society is well known for campaigns to save Grand Central Terminal and Lever House and to stop towers that would have cast long shadows over Central Park.

But now the civic organization is the one defending itself, for deciding to award the developer Bruce C. Ratner its highest honor, one named for the very person who led some of those fights.

Next week, the Jacqueline Kennedy Onassis Medal — a recognition of “individuals who, by their work and deeds, have made an outstanding contribution to New York City” — is to be given to Mr. Ratner and his successor as chief executive of Forest City Ratner, MaryAnne Gilmartin.

See "Plan to Honor Big Developer in Brooklyn is Criticized." The critics in the NYT story are headed by none other than Dan Goldstein, the protagonist of Battle for Brooklyn and the leading spokesman for those who objected to the use of eminent domain to take their homes for a basketball arena:

“By giving Bruce Ratner this award, the Municipal Art Society is condoning his actions and encouraging every other developer to follow his lead,” said Daniel Goldstein, who was among those who lost their homes to Atlantic Yards.

A spokesman for Forest City Ratner expressed gratitude for the award but declined to comment further.

Seems a bit odd to us to award a "medal" celebrating the preservation of the city to someone who was noted as an "innovative and tenacious builder" who has "left her mark" on the New York skyline. We think that maybe it's time to rename the medal for Jay Z, an enthusiastic supporter of Barclay's, and not Jackie O.

For more on the controversy, see "The Orwellian Award," a comment by the makers of Battle for Brooklyn. 

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