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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.

Law Students: Register Free For The 38th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference (Jan 28-29, 2021)

Are you a law student interested in takings, eminent domain, land use, environmental, and other dirt-lawyering related topics? If so, good news: thanks to the generosity of ALI-CLE, you can register gratis (free!) for the upcoming 38th Annual Eminent Domain & Land Valuation Litigation Conference, to be held remotely on Thursday and Friday, January 28-29, 2021.

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, risk-free. 

To register or to find out more, email me.

Eminent Domain Podcast's Preview Of The Upcoming ALI-CLE Eminent Domain & Land Valuation Litigation Conference

Our thanks to Clint Schumacher for having us on his program to talk about the upcoming Conference. We're "remote" this year, but that means a different approach to our presentations (and a very modest tuition!).

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," "Evaluating Lockdown, Moratorium, and Emergency Claims," and more (including Ethics for those of you in MCLE jurisdictions). We'll have a post with more details. 

Register now!

The Latest Supreme Court Takings Case, Argued This Week

Earlier this week the U.S. Supreme Court heard oral arguments in its latest takings case.

Wait, what? Did we miss something? A takings case, argued this week?

No, you didn't miss a land use or eminent domain case, but one in which Holocaust victims sued Germany in a U.S. court for seizure of property in the Second World War. The issues centered around the Foreign Sovereign Immunities Act, under which foreign countries are mostly immune from being haled into an American courtroom. But there is an exception for "expropriation," when property is "taken in violation of international law."

The plaintiffs argued that their property -- artwork and medieval treasures -- were literally taken from them by German and Hungarian authorities, so they qualified under the "taken" exception. The German and Hungarian governments, supported by the United States, argued that "taken" means expropriated, as in seized in the sense we takings lawyers think about "taken."

As counsel for Germany stated in the arguments (transcript here), "That language invoked the established international law doctrine known as the law of takings. As the Restatement and other sources show, the doctrine addresses only nations' takings of foreigners' property. And by referring to it, Congress incorporated its limits into the expropriation exception." Tr. at 3-4. Chief Justice Roberts responded by asking whether "expropriation of property can't be part of a campaign of genocide?" Tr. at 5 (mirroring some cases in which persecution for property rights advocacy has resulted in a valid asylum claim). And that revealed the heart of Germany's claim: that the "gravamen" (we prefer the term "vibe") of the complaint was about genocidal acts, not plain old takings. As counsel put it, responding to Justice Thomas' question about whether this was a genocide claim, not an expropriations claim:

MR. FREIMAN: Well, Your Honor, if, in fact, a -- a country is taking property with the intent of physically destroying a people or a part of a people, it --it's unquestionably a genocidal act.

But the question, again, is what Congress intended in (a)(3). Was it invoking any kind of --anything that could be described as a taking, or does it have to be the gravamen of the claim?

And, here, the gravamen of the claim in the example you gave would be genocide. But Congress did not see fit to create any kind of exception for genocide claims or other international human rights or law of war claims.

Tr. at 8.

The other major thread was whether the "in violation of international law" requirement means that even if these acts qualified as "takings," they were against international law because they were committed by these governments against their own citizens. 

Here's the first Question Presented, which expressly contrasts "violates international law" takings with plain old taking of a country's own citizen's property:

1. Whether the "expropriation exception" of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(3), which abrogates foreign sovereign immunity when "rights in property taken in violation of international law are in issue," provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states' responsibility for takings of property.

Germany, Hungary, and the U.S. argued that FSIA was meant to create a limited exception for things like the Cuban government illegally expropriating property without paying compensation. (See here for an example of the Venezuela government's seizure of oil rigs falling within the takings in violation of international law FSIA exception.)

There's a whole lot more going on here, but the arguments are very, very interesting, both legally and historically, and there are worse ways to spend your time than listening to the recording (above), or reading the transcript. More on the arguments: "Nazi-Era Jewish Art Cases Get Mixed Reception from Justices.

We've always said that takings and property are everywhere, you just have to look.

Transcript, Federal Republic of Germany v. Phillipp, No. 19-351 (U.S. Dec. 7, 2020)

Brigham-Kanner Property Rights Conference Videos Now Available

In case you missed any part of it: the recordings of the recent 2020 Brigham-Kanner Property Rights Conference are now available.

Go here for the descriptions of the panels, speakers, and links to the recorded sessions.

This year’s conference, held on October 1-2, opened with the Brigham-Kanner Property Rights Prize being awarded to Professor Henry E. Smith of Harvard Law School. The prize is named in honor of the lifetime contributions of Toby Prince Brigham, founding partner of Brigham Moore, LLP, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles, and is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

Topics covered: "Where Theory Meets Practice: A Tribute to Henry E. Smith," "The Housing Crisis," "Emerging Issues in Takings and Eminent Domain Law," "The Reach of Government’s Confiscatory Powers over Exigencies and Emergencies," and "The Risk of Unjust Compensation."

Check it out.

Your 2020 Brigham-Kanner Property Rights Conference Bingo Card

There's Still Room: Join Us For The 17th Annual Brigham-Kanner Property Rights Conference (Online, Free!)

Although it is set to launch this Friday, October 2, 2020, there's still more than enough time to register (and room at the inn) for you to join us for the 17th Annual Brigham-Kanner Property Rights Conference at the William and Mary Law School.

Like everything else this season, the Conference is online (register here), and although we would have preferred to gather in-person of course, the online format has some advantages: the number of attendees isn't limited by the classroom size (this year's registrations are at record levels), you don't need to travel to Williamsburg, and the Conference is free if you don't want Virginia CLE credit for attending. What a deal.

In our opinion, this is the best legal academy/practicing bar conference on property law. This year, the Conference honors the Brigham-Kanner Prizewinner, Harvard Law School Professor Henry Smith.

Here are the panel topics (complete program agenda here):

• Where Theory Meets Practice: A Tribute to Professor Henry E. Smith Recipient, 2020 Brigham-Kanner Property Rights Prize
• The Housing Crisis
• Roundtable: Emerging Issues in Takings and Eminent Domain Law
• The Reach of Government’s Confiscatory Powers Over Exigencies and Emergencies
• The Risk of Unjust Compensation

Speakers include Professor Smith and past Prize winners, prominent members of the practicing property bar, and property scholars. The complete list is posted here.

Come, join us without even leaving home (or the office)! Register here. Did we mention the tuition is FREE?

Available Now: 2020 Zoning and Planning Law Handbook (Green Book)

photo: Patricia Salkin

Just published: the 2020 Zoning and Planning Law Handbook (Green Book). The first section of the Summary of Contents is about Takings, and includes as the lead piece Professor Gideon Kanner and Michael Berger's tour-de-force article, "The Nasty, Brutish, and Short Life of Agins v. City of Tiburon." It also includes my articles on Murr, "Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?"

Check it out. The Green Book is a one-stop shop for the best articles on land use in a given year, and this edition includes chapters on housing, agriculture, cell tower placement, RLUIPA, and (of course) zoning.

Our thanks to Dean Patty Salkin who edited the volume for including us.

Summary of Contents, 2020 Zoning and Planing Law Handbook (Green Book)

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) 

Join Us This Week: May 12-14, 2020 For (Virtual) Land Use Institute Webinar Series

Join us starting tomorrow, Tuesday, May 12, 2020 for the 34th Land Use Institute. Originally scheduled for April in Tampa, we obviously couldn't do tha, so we did the next best thing -- moved this venerable course online. The Planning Chairs (Frank Schnidman and Dean Patricia Salkin) have assembled the usual hot topics session and a lineup of expert faculty (we're speaking at the 2:45 ET session on Federal Laws (in our case, NEPA, Water, and Wetlands (including the Maui case from SCOTUS)). 

The program takes place over three days Tuesday, Wednesday, and Thursday, and you can either register for the sessions or all three days, with various discounts if you are a member of the American Bar Association, and even more if you are a member of the Section of State and Local Government Law. 

Here's the three-day agenda. There is a lot here to like, and we hope you can join us:

Tuesday, May 12th: Updates and Current Issues Explored

1:00-2:35pm: Update on Planning, Land Use, and Eminent Domain Decisions

2:45-4:15pm: Federal Laws, Regulations, and Programs Affecting Local Land Use Decision Making

Wednesday, May 13th: Climate Change, Land Use Practice and COVID-19

1:00-2:35 pm: Annual Richard F. Babcock Faculty Address: Overview of National and International Best Practices to Address Climate Change and Sea Level Rise

2:45-4:15 pm: Land Use Practice and COVID-19 (The Future of Zoning: The View from the COVID-19 Lens & Seeking and Dealing with Variance and Rezoning Requests)

Thursday, May 14th: Hot Topics in Land Use

1:00-2:35 pm: Hot Topics, Part 1 (Regulating Personal Transportation, Housing the Homeless, Redevelopment/Opportunity Zones)

2:45-4:15 pm: Hot Topics, Part 2 (Affordable Housing, Sustainability/Resilience, Eminent Domain and Takings)

Details on the faculty and each day's agenda here. Register for the program (all sessions, or ala carte) here. 

See you online! 

Amicus Brief: Invocation Of "Police Power" Is Not Dispositive In Takings

Today, along with our colleague Bill DeVinney, we filed this amicus brief in support of the property owners' cert petition in a case we've been following for a while. 

Yes, this is the case where the Village police pretty much destroyed a family home in the course of their efforts to dislodge a shoplifter who had taken refuge there while fleeing. Homeowner sought compensation for a taking. The Tenth Circuit, however, concluded "no taking" because the police were exercising the police power. And you can't have a taking where the government is exercising the police power.

Instead of summarizing our brief, how about we just post the Summary of Argument:

This Court should review the Tenth Circuit’s holding that action taken by the government under its police power—as opposed to an exercise of eminent domain—can never trigger a taking under the Fifth Amendment’s Just Compensation Clause. This brief makes two main points.

  1. Government’s assertion that it destroyed property for a police power purpose is but one of the factors a court considers when an owner asserts the destruction resulted in a taking. Police power may be a compelling factor militating against compensation. But it should never be the sole factor, as the Tenth Circuit concluded.

  2. The brief also addresses a question that often arises after the police or other government officials damage a home—or, as in this case, nearly destroy it: why should the homeowner be able to seek just compensation for a taking when insurance is available? The short answer is that nearly all homeowners’ insurance policies exclude from coverage any loss caused by an order of a government or civil authority. A majority courts have interpreted this provision to preclude recovery for damage inflicted by the police in executing a search warrant or apprehending a fleeing suspect.

Consequently, if the Tenth Circuit’s holding stands, many homeowners who suffer losses when their homes become are occupied or damaged by the police—no doubt a public purpose—through no fault of their own will be left without any remedy for damage inflicted by police searching for evidence, apprehending suspects, or otherwise exercising the police power.

The petition presents the Court an opportunity to clarify that an invocation of “police power” is not the dispositive fact in a takings analysis. Rather, the “character of the government action” is but one of the issues to be determined, not the conclusive one as the Tenth Circuit concluded. The Court should grant review.

Now we wait. Stay tuned.

Brief of Amicus Curiae Owners' Counsel of America in Support of Petitioners, Lech v. City of Greenwood, No.... 

Latest Readings: On Emergency Takings, Compensation For Commandeered Property

It's tough with all that's swirling around all of us to keep focused on non-virus related things. But because we think that's one way to keep calm and carry on, we shall continue to endeavor to do so. But come on, being takings and dirt lawyers we also can't help viewing current events through that lens, no? Consequently, we shall also continue from time-to-time to post about issues that have cropped up in practice that are related to the thing that is on everyone's mind these days.

In that vein, here's the latest on-topic things we've been reading: 

• History: Fire and Blood(worth) - Steve Silva, Taking Nevada blog ("Many argue, with great merit, that when a person’s property is sacrificed to preserve the public health, that the person is entitled to compensation. But the law has not yet reached that conclusion, ... [and] there is no legal mandate that the sovereign must so compensate.").
• Does the Takings Clause Require Compensation for Coronavirus Shutdowns? - Ilya Somin, The Volokh Conspiracy ("Under current Supreme Court precedent, the answer is almost always going to be "no." But some compensation may be morally imperative, even if not legally required.").
• Eugene Kontorovich, Liability Rules for Constitutional Rights: The Case of Mass Detentions, 55 Stanford L. Rev. 755 (2004) ("Another objection to liability rules for constitutional rights is that forced takings of constitutional entitlements may have particularly high "resentment costs." This term refers to the psychological or dignitary cost of having an entitlement forcibly taken.").
• Brad Kuhn (California Eminent Domain Law Report) is holding a web program on April 1, 2020 about "Navigating COVID-19 for the Right of Way Industry" ("We have received a number of questions and concerns from clients on how the current pandemic affects the way we do business, and what to expect going forward. We will be hosting a webinar on April 1, 2020 from 1:00 to 2:00 p.m. PT to bring our industry together (virtually) and help answer as many questions as we can."). 

Here are our own prior posts on the topic:

• The Royal Origins Of "Police Power" Hawaii-Style: The King v. Tong Lee (1880)
• Emergencies, Police Power, Commandeering, And Compensation: Essential Readings
• #CoronavirusLaw: Is There A Difference Between "Commandeering" Property In An Emergency, And "Taking" It?

Steve Silva's post above also got us to thinking about compensation issues also. So we dusted off what we think is one of the more important decisions in the oeuvre, Kimball Laundry Co. v. United States, 338 U.S. 1 (1949). That case, as you recall, involved the wartime long-term but temporary taking by the feds of a going-concern commercial laundry, for use as a military laundry.

The case has often been used to support arguments that business losses that result from an affirmative taking (or commandeering) of property for public use should be compensable. Most jurisdictions, as you know, do not include such losses in "just compensation." In Kimball Laundry, however, the Supreme Court held: 

But when the Government has taken the temporary use of such property, it would be unfair to deny compensation for a demonstrable loss of going-concern value upon the assumption that an even more remote possibility -- the temporary transfer of going-concern value -- might have been realized.

Id. at 15. There's an ongoing debate about whether business losses should be part of just compensation when the government takes property, but does not necessarily take over the business. Is the loss of business just a "consequential" damage, and therefore not compensable? Or should, as others have argued, these losses be part of compensation because the measure of compensation is supposed to be what the owner lost, and not what the taker gained? 

We're certainly not going to resolve that debate in this modest blog post. We only put the case here to add to your reading list because we think that if the government acknowledges that compensation is required for emergency takings or commandeering, the question of just what is compensable is going to take center stage. And on that question, you better know Kimball Laundry. 

Kimball Laundry Co. v. United States, 338 U.S. 1 (1949) 

The Royal Origins Of "Police Power" Hawaii-Style: The King v. Tong Lee (1880)

Here's one for our Hawaii folks, in case you all are curious about the origins of the analytical framework which courts use to review the legality of measures taken by the authorities in the name of "public health" that have an impact on the uses of private property.  

As far as we can tell, The King v Tong Lee, 4 Haw. 335 (Kingdom 1880) (in banco), is the first Hawaii case which uses the term "police power," and which upheld the broad – and nearly unreviewable – authority of the government to limit the uses of property, as long as there’s a colorable argument that the property's use is contrary to the public health.

There, the Kingdom's legislature (one of the joys of practicing law in Hawaii is that you get to deal with cases involving the Kingdom; things like Privy Council, the royal prerogative, and the like) prohibited the laundry business within a small radius of Nuuanu and King Streets in downtown Honolulu, because "the increasing number of laundries and wash-houses within the limits of the City of Honolulu tends to the propagation and dissemination of disease."

We think we can safely conclude that this prohibition was – in whole or at least in large part – more of an anti-Chinese than a true health measure because (1) the statute only barred laundering for money (it didn’t limit large-scale private washing or the dumping of wastewater, which you would think it would do if the activity itself was truly harmful to the public's health), and (2) did not prohibit the laundry business anywhere else on Oahu, or in the kingdom for that matter.

Then, like now, the part of town that the corner of Nuuanu and King Street conjures up in your mind is Chinatown. (We all understand the ethnic and racial geography of our town: there’s a historical reason, for example, why there’s a First Hawaiian Bank on that corner (for Chinese customers), when the main bank was just a couple of blocks down on Bishop Street (Big 5 customers.)

Tong Lee challenged the statute as a violation of the due process clause of the Hawaii Constitution (yes, the Kingdom had a written constitution). He asserted he had the right to use his property (his laundry business and his land), which this statute unreasonably deprived him of without a good reason: if public health was the real reason for this law, it was both too narrow (it didn't prohibit all commercial laundries), and was not tailored (there was no showing that Tong Lee's laundry was unsanitary).

The Supreme Court easily disposed of this argument:

The authority to enact a law of this character is derived from the inherent power which every sovereign State possesses to protect the life, property and health of its citizens. Says Judge Shaw, in Commonwealth vs. Alger, 7 Cushing, 84: “We think it is a well settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations on their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.”

“This is very different from the right of eminent domain; the right of a Government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the Legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, or the subjects of the same.”

Tong Lee, 4 Haw. at 339-40.

It doesn't take much to see how this argument can be stretched beyond its breaking point, because nearly anything these days can be spun as a public health crisis (see, e.g., a state senator's recent proposal that physicians should write prescriptions for housing, to address the public health crisis of homelessness). But even though challenges might come at the margins, on the whole, the courts still defer to the legislative judgment about just what constitutes a health crisis, and what uses of property might be injurious to the public health. And it all started here in Hawaii law:

Chief Justice Shaw also says in Commonwealth vs. Alger, above cited, p. 86: “Nor does the prohibition of such noxious use of property (a prohibition imposed because such use would be injurious to the public), although it may diminish the profits of the owner, make it an appropriation to a public use, so as to entitle the owner to compensation. *** If the owner of a warehouse in a cluster of other buildings could store quantities of gunpowder in it for himself and others, he might be saved the great expense of transportation. If a landlord could let his buildings for a small-pox hospital or a slaughter-house, he might obtain an increased rent. But he is restrained, not because the public have occasion to make the like use or make any use of the property, or to take any benefit or profit to themselves from it, but because it would be a noxious use, contrary to the maxim sic utere tuo ut alienum non laedas.

Id. at 341.

There’s a lot about this case that has not necessarily survived the 140 years since it was issued. The racial overtones, for example. But the police power principle is still a very strong thread, and the court’s holding remains valid today: “[t]he State, by its Legislature, possesses the right to make such laws as it deems to be wholesome, and the exercise of this power is subject to no review except by the body of society itself, except so far as these laws may be inhibited by the Constitution itself, or be repugnant to its provisions.” Id. at 342.

In other words, voting – not suing – is the usual remedy.

The King v Tong Lee, 4 Haw. 335 (Kingdom 1880) (in banco) 

Unboxing The 2021 (Scottsdale) ALI-CLE Eminent Domain Conference Swag: Get Yours Today!

Missed out on the 2021 ALI-CLE Eminent Domain and Land Valuation Litigation Conference swag?

Well fear not: here's your chance to get your high-class reminder -- a kit of road warrior essentials -- to save the Conference date on your calendar. We're already underway with planning the agenda and faculty, so it's never too soon to block it off (January 28-30, 2021, at the 4-Diamond DoubleTree Resort, Scottsdale, Arizona). 

If you were not able to get your swag in Nashville, send us a note (rht@hawaiilawyer.com) and we shall gladly drop one or two in the mail to you.

While supplies last!  

Carousing at Carousel Farms: Final SCOTUS Cert-Stage Briefs In Colorado Eminent Domain Abuse Case

The last two cert-stage briefs have been filed in a case we've been following for a while (since it was decided by the Colorado Court of Appeals). 

In Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 444 P.3d 802 (Colo. App. 2017), the appeals court invalidated an attempt to exercise eminent domain to take property which the owner had refused to sell to developer Carousel Farms. Although the Carousel Farms Metropolitan District couldn't point to a present public use or benefit from the taking, it asserted that in the future the public would benefit from the condemnation because if Carousel Farms were allowed to develop its property in accordance with its agreement with the town, the public would receive new infrastructure such as roads and sewers. The trial court upheld the taking, but the court of appeals reversed. The real purpose of the taking was to facilitate the developer's compliance with its agreement with the town, and speculative future benefits are not enough to overcome the true purpose of the taking. 

Unfortunately, the court of appeals' ruling didn't hold up on appeal to the Supreme Court of Colorado. That court held that possible future benefits were enough, and it didn't matter what evidence of private benefit was in the record: "Here, the taking is essentially for public benefit. Parcel C will be used for public right of ways, storm drainage, and sewer improvements." The Institute for Justice (the same folks who brought you Kelo) took up the mantle, and sought cert review in SCOTUS.

We filed an amici brief in support of the petition. 

Now we have the final two briefs in the cert-stage process: the Brief in Opposition, and the Reply Brief. We won't detail either here, but leave you to read them (both are worthy of your time). 

Next step: await for the case to be considered at the Justices' conference. Stay tuned. 

---------

Sidebar (and you can skip what follows if you have better things to do): the name of the Respondent ("Carousel Farms") reminds us of a mentor we had back in the day. One of those "barrister" types from the Old School. Solo practitioner, trial lawyer guy. Defended death penalty cases back before Gideon v. Wainwright.  Won 'em all but one (and that was a mistrial). Taught us a lot about lawyering simply by recounting war stories. His favorite restaurant in town had a simple name: "Carousel." Like the thing kids play on. A "merry go round."  It had been around for a while (indeed, it is still there). 

Thing is, our lawyer friend mispronounced the restaurant's name as "carousal" (as in a party, i.e., carousing). We never corrected him. His gross mispronunciation became one of those "things" that served as a point of reference for us, something we'd joke about (we're pretty sure he knew he was mispronouncing it, but it had become such a habit that he didn't care, so we played along and often spoke of carousing at "Carousel.").

Well, time marched on and well after he hung up his brogues and stopped practicing law, we continued to meet and talk about cases, trials, and the like. Once you find a mentor like that, you should never let them go. But as he approached 90 years, his very sharp mind became ... less sharp. But even as he slipped, we continued to hang out. One day we said to him, "say, what do you think about getting lunch at ... Carousel? [mispronouncing it "Carousal" as we always did]." 

Instead of his usual wry smile response, he looked at us like we were blithering idiots: like we had completely lost our ability to form words in the English language. "Uh, it's pronounced 'Carousel,' you know," he finally said. Maybe the first time in decades he pronounced it correctly.

We thought about explaining why we were pronouncing it wrong. But eventually decided to just let it go. "Carousel" it was, and not "Carousal." While we were a bit relieved that he had (finally) settled on the proper pronunciation, we were more sad that the "thing" we had shared between us for so long was gone, never to return. 

He's now gone, too. The Colorado case about "Carousel Farms Metropolitan District" reminds us of him. If the Court grants cert, please forgive us if we purposely mispronounce the case name a few times, just to honor our passed friend. 

Brief in Opposition, Woodcrest Homes, Inc. v. Carousel Farms Metro. Dist., No. 19-607 (Feb. 10, 2020) 

Reply Brief, Woodcrest Homes, Inc. v. Carousel Farms Metro. Dist., No. 19-607 (Feb. 24, 2020) 

Netflix And Take: Expropriation And Redevelopment UK Style In "The Stranger"

Netflix just released the first season (or should we say "series" since this is a UK-based production?) of "The Stranger," a thriller based on Harlan Coben's novel, about "the lives of suburban families whose secrets and lies are made public by the appearance of a stranger."

Why we're posting notice here that you should watch it is because the main character is Adam Price, and the backdrop to the thriller is that he's a lawyer who is fighting expropriation (what we Yanks call "takings"), and is knee-deep in a case involving the threatened taking of a retired police officer's supposedly blighted home for the local council's redevelopment project. We just started watching. 

What makes this story line especially compelling is that the legal aspects of the story are based on a real case in which our New Jersey colleague Tony Della Pelle represented the property owner. In that case, the property owner was obviously not a retired English Bobby, but Johnnie Stevens a decorated veteran of the U.S. Army's famed "Black Panthers" (an African-American tank unit in the ETO), whose home stood in the way of a New Jersey redevelopment project. Tony consulted with the novel's author to make sure the legal details rang true. (And in what we assume is a nod to the Jersey roots of the story, in Episode 2 the lawyer and his neighbor do some Springsteen carpool karaoke on the drive to town.) 

A sample of the eminent domain-y dialogue from Episode 1:

Right of way agent: "You're his lawyer, how much does he want?"

Adam Price: "A billion pounds." 

From Episode 2's courtroom scene:

Local Council's [unctuous] lawyer [who happens to have a surprise connection to Price]: "Two years ago, [the town's] councilors deemed this street as fit for slum clearance. And now here we are offering two-hundred-and-forty highly desirable one, two, and three-bedroom apartments, twenty-five percent of which are for affordable housing, and yet one -- one man, his client -- wants to derail a better life for 500 people for no better reason than his derelict home is his castle."

Adam Price: "My client has rights." 

Witness [redeveloper]: "The Council issued a compulsory purchase order against them."

Adam Price: "And we will fight them and you and your company every inch of the way. Not the least because you have no intention of providing affordable housing. No, once construction starts, you will claim that costs are rising and this 25% will shrink to 20% and then 10%."

. . . .

Unctuous Lawyer [gesturing grandly]: "The Council needs this. The country needs this. More housing is everything. A man without a home ceases to be a man. ... I am offering to empower 500 people to your single solitary one."

Based on those, we're going to apply for CLE credit for watching.  

Cases From This Morning's "Eminent Domain Update" At The 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Nashville

Here are the links to the cases we discussed this morning at the "Eminent Domain Update" session:

• It isn't an abuse of discretion for a trial court to let the property owner testify about value (including severance damages) if she meets the standards in Federal Rule of Evidence 701 (she has experience with the property and sales), even if she had no experience with the particular use for which the property was taken (in this case, a natural gas pipeline) Sabal Trail Transmission, LLC v. 3.921 Acres of Land, No. 18-11836 (11th Cir. Jan. 22, 2020). 
• Colorado Supreme Court: a lot of present private benefit is meaningless if the condemnor promises future public benefits. Carousel Farms Metro. Dist. v. Woodcrest Homes, 44 P.3d 802 (Colo. App. 2017). A cert petition has been filed. (Disclosure: we filed an amicus brief in support of the petition.)
• Kelo International: Supreme Court of the Republic of the Philippines goes beyond "aliens might have done it" judicial review in blight redevelopment takings. City of Manila v. Roces Prieto, No. 221366 (Phil. Aug. 29, 2019).
• What A Difference The Defendant Makes: The Federal Courts Finally Locate A Natural Gas Act Preliminary Injunction They Don't Like. In re PennEast Pipeline Co., LLC, No. 19-1191 (3d Cir. Sep. 10, 2019) 
• Owner Objects To Being Offered *More* Compensation: DOT's Offer Invalid Because It Included Severance Damages The Appraisal Omitted. Christus Lutheran Church of Appleton v. Wisconsin DOT, No. 2018AP11124 (Wis. App. Nov. 26, 2019). 
• Maryland On Relocation And Present Participles: Tenant's Departure After City Told It To Get Out Was "Voluntary." Wireless One, Inc. v. Mayor and City Council of Baltimore, No. 18-71 (Md. App. Aug. 23, 2019), 

If you are here with us in Nashville, please stop by and say hi. If you aren't here, you can catch up with the video recordings once ALI-CLE makes them available, or you should plan on joining us in-person in [location] in 2021 (we shall announce the venue for the 2021 Conference tomorrow).

Greetings From The 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, Nashville

We're in Nashville for the next three days, where we have record attendance (see above for the name-tag matrix), with nearly 300 attendees spread out over three rooms. 

The Big Room, before. 

The Big Room, during. Like we said, record attendance. 

Thanks to the generosity of our sponsors, we have very good social events. Like the lunch, below.

Clint Schumacher brought his Eminent Domain Podcast studio to Nashville to record future episodes.

Record Attendance (But There's Still Time For You Last-Minute Filers) At Nashville ALI-CLE Eminent Domain Conference

Picture 1: how normal people see pie.

Picture 2: how you see pie if you're coming to the
ALI-CLE Eminent Domain Conference. 

If you get the above, you probably are already set to join us next week for the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference in Nashville. (If not, shame on you!).

And having just reviewed the latest registration list, I can report that we have an all-time record attendance.  But there's still room for those of you still not committed. Register here. Don't miss out. There will be pie. 

The Circle Is Now Complete: A Sampling Of Final Paper Topics From William and Mary Law's Eminent Domain & Property Rights Course

If there's one downside to the law school experience from the teacher's side of the lectern, it's grading. Especially at a law school like William and Mary that has a pretty strict mandatory curve.

In an upper-division course like "Eminent Domain and Property Rights Law," where we're dealing with some very high-level stuff and the quality of the students is uniformly excellent, that makes for some hard choices at this time of year. But we've wrapped up grading, and have submitted the official scores.

Although I cannot share with you all the papers themselves, I don't think my students would mind if I give you a sampling of the topics and titles, just so you can see how the next generation of lawyers is thinking about this area of law: 

• One Man's Castle is Another Man's Parking Lot: A Homeowner's Theory of Eminent Domain
• Native Title: Concept and Compensation
• May the Forest Be With You: John Does in Trees Fight Pipelines Using the Right to Include
• Apportioning "A Chicken Which Is Really Not Big Enough to Go Around": Why Courts Should Abandon the Undivided Fee Rule for the Aggregate of Interests Approach
• Madisonian Musings on Judicial Takings
• Why Knick v. Township of Scott Returned Takings Jurisprudence to the Values Behind the Fourteenth Amendment
• In the Aftermath of Arkansas Game & Fish Commission and Livingston v. Virginia Department of Transportation: Virginia Localities Need to Plan for Great Liability Risks From Flooding
• The Veterans of Foreign Wars Case and the Undivided Fee Rule: Just Compensation for More Than One Owner
• Up-Zoning: A New American Dream and Shifting Property Paradigm
• I Believe I Can (Maybe) Fly: A Survey of Proper Law Interaction With Drones
• EPA's Takings Liability for Climate Change Inaction
• Are Pipelines Public Uses? 
• In States We Trust: The Limits, and Lack Thereof, on the States' Power to Modify the Public Trust Doctrine
• The Public Use Requirement: Changes Over Time

I don't know about you, but I feel pretty good about this. I will be encouraging several of them to consider beefing up their papers and submitting them for publication somewhere. 

Finally, I can't resist cutting and pasting from one of the paper's footnotes: "For more on 'exclusionary vibes' and the power of eminent domain, see The Castle (Debra Choate 1997)." 

Obi-Wan has taught you well. 

(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.  

Space Still Available For ALI-CLE Eminent Domain Conference, Nashville Jan 23-25, 2020

If you get this, you need to attend the 37th Annual ALI-CLE Eminent Domain & Land Valuation Litigation Conference, January 23-25, 2020, in Nashville.

And if you don't get this, you need to attend more. 

Register here. 

What's At 712 4th Street, S.W., Washington DC? Your Invite To The 2020 ALI-CLE Eminent Domain Conference (Jan 23-25, Nashville)

Don't Miss Out: Join The "Big Guns" And Secure Your Space At ALI-CLE's Upcoming Eminent Domain & Land Valuation Litigation Conference (Jan 23-25, 2020, Nashville)

We were not as creative as our colleague Paul Henry (see below), but our Planning Co-Chair Joe Waldo and I wanted to personally invite you to join the "big guns" in our area of law at the 37th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, in Nashville, Tennessee.

We've assembled an excellent faculty, and an agenda that covers the hot topics of the day. Go here to view the complete faculty list and agenda. Water rights, Knick, appraisal, ethics, civil rights, and a whole lot more in three days of the longest (and we think best) conference in our area of law. Also, for those new to the field, Andy Brigham and Jack Sperber are again leading their "Eminent Domain 101" program. A great way to learn the topic, or for experienced lawyers to get a quick refresher on the basics. Your registration allows free movement between all sessions and all tracks, so you can choose your menu ala carte.  

Of course, we're doing more than simply "talking shop," and we shall have our usual full slate of networking events, thanks to some very generous sponsors. Our faculty and attendees are well-known for being some of the friendliest and most welcoming in the business. And this is Nashville, and all that entails.

Register now. Spaces are already filling up. We are already at 25% higher registrations than at this point last year for the 2019 Palm Springs conference. The past few years have either sold out or come close, and the hotel block isn't unlimited. We want you with us, so sign up now!

What Is The Original Public Meaning Of The Fifth (And Fourteenth) Amendments?

Here's the video of (most, but not all of) the recent session featuring four lawprofs discussing "Originalism and Constitutional Property Rights" at the Federalist Society lawyers' meeting. 

Interesting debate, all about the text of the Fifth and Fourteenth Amendments, the "original public meaning of the Takings and Due Process clauses, and all that heady stuff. Here were our major takeaways:

• Professor Somin argued that decisions like Kelo and Berman are not consistent with the original public meaning of the terms of the Takings Clause. 
• Professor Merrill asserted there's a good textualist argument that the Public Use Clause is not a limitation on the government's power to take. If there's a private benefit taking, that is best handled by other parts of the Constitution (such as due process).
• Also, from Prof. Merrill: between Kelo and the backlash, the backlash was the "true constitutional moment."
• Professor Lazarus thought the regulatory takings doctrine was made up by Justice Holmes in a "throwaway" in Penn Coal, and textually, the Fifth Amendment was limited to physical takings, Lucas was a litigation "bait and switch," and the decision "ludicrous." Most land use regulations are more "givings" (our word, not his) than takings, because they enhance value. He stressed the point that he wasn't saying property owners injured by regulation should not have a remedy; it's just not in the Constitution. Knick made the regulatory takings case worse because it is now "open season" on governments for takings claims, and attorneys fees and costs. 
• Professor Claeys stressed that the focus should also include the original public meaning of the Fourteenth Amendment (either the Due Process or the Privileges or Immunities Clauses), and that it is not a universal understanding that regulations add or take away value or use from property owners. Different property owners may have a different view of the same regulations; for example, owners along the St. Croix River may like the enhanced views the regulations protect, while others (the Murr family) may place more value on use and sale. 

After listening to this vigorous and balanced debate about the meaning of the words in the Takings Clause, we wanted to see the actual words in the Takings Clause. So we paid a visit to the National Archives. 

Eternal vigilance is the price of liberty

Encased in glass in the dimly lit rotunda, there they are in their faded glory. Not in "Article Five," but rather in "Article Seven" (since the first two amendments were not adopted).

If you squint hard enough, you can just about make out the words we all know, "nor shall private property be taken for public use, without just compensation." 

(The guard was not amused when we pressed our nose up against the glass to make out our favorite text in the Constitution.)

Register Now! ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Nashville, Jan 23-25, 2020)

Registration underway, so come join us! Agenda full of hot topics in takings and appraisal law! The best national faculty! Renew friendships, and make new colleagues! And Nashville! 

Download the brochure and make your plans for January. (Don't wait, we've sold out the past three years.)

ALI-CLE Eminent Domain & Land Valuation Litigation Conference - Jan 23-25, 2020, Nashville

Berman International - Philippines Supreme Court: Takings Must Undergo "Painstaking" Judicial Scrutiny

Reading through the opinion of the Supreme Court of the Philippines in City of Manila v. Roces Prieto, No. 221366 (Aug. 29, 2019), there is a lot there that will look familiar to U.S. lawyers, specifically U.S. eminent domain lawyers.

Viz.: It is up before the Court on a petition for certiorari, there was an effort to voluntarily acquire the properties, an "expropriation" lawsuit gets filed when that didn't work, and the City deposited estimated compensation and sought a writ of immediate possession from the trial court. That court balked because the deposit amount didn't comply with the requirements of the statute, but once the City fixed that problem, the court allowed immediate possession. Sounds very familiar. 

The takings were in furtherance of something called the Land-for-the-Landless program, which this article describes as a process by which "[t]hrough expropriation, the city government buys private properties that are then distributed to qualified applicants." Also sounds familiar, somewhat like the Hawaii Land Reform Act which our Supreme Court upheld in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984), and the takings for redevelopment in Berman v. Parker, 348 U.S. 26 (1954).

Well, in this case, it wasn't just the landless who wanted land, the landed wanted to keep theirs. Although the trial court allowed the taking and issued a writ of possession, the appeals court held that the expropriation was not supported by the factual record the statute requires:

the records lack[] any evidence to support petitioner's claim that an on-site development program is the most practicable and advantageous for the beneficiaries, to justify the nonapplicability of the list of priorities in land acquisition under Section 9 of R.A. No. 7279.

Slip op. at 4. 

The statute requires that the expropriated land be "blighted," meaning that structures are "dilapidated, obsolete and unsantiary," but the City didn't do more than assert the lands to be taken were in such condition. Instead, because the City made "bare and unsupported assertions" of blight, the court invalidated the taking. Slip op. at 4. 

The Supreme Court took up the case. As background, the law of the Republic of the Philippines regarding expropriation looks a lot like US law (at least US law in theory):

In resolving expropriation cases, this Court has always been reminded that the exercise of the power of eminent domain necessarily involves a derogation of fundamental right. "The exercise of the power of eminent domain drastically affects a landowner's right to private property, which is as much a constitutionally-protected right necessary for the preservation and enhancement of personal dignity and intimately connected with the rights to life and liberty."

Slip op. at 6 (footnote omitted). Again, sounds very familiar.

But here's where the Court took a different turn. Instead of the conceivable basis (well-nigh conclusive) standard of judicial review, the Court held that because the power to deprive someone of their property involuntarily is a drastic power, "Therefore, the exercise of such power must undergo painstaking scrutiny." Slip op. at 6 (emphasis added) (footnote omitted).

And that's not all: "Such scrutiny is especially necessary when eminent domain is
exercised by a local government considering that it merely has a delegated
power of eminent domain." Id. 

Now that's a long way from the way we do things here, at least in our Supreme Court. 

The Philippines Supreme Court affirmed the court of appeals ("The petition is bereft of merit."), concluding that the enabling statute for the Land-for-the-Landless program imposed several requirements, including a provision that mandates that private property can only be taken as a last resort after other available properties and modes of acquisition are exhausted. The trial court took a "facile approach" and "took hook, line, and sinker" the City's "assertion that an on-site development is the most practicable and advantageous to the beneficiaries, allowing the resort to the acquisition of private lands despite the same being last in the list of priorities[.]" Slip op. at 8. The city's "bare allegations and unsupported generalizations do not suffice, considering the drastic effect of the exercise of such power to constitutionally-protected rights."

The courts, the Court held, "have a duty to judiciously scrutinize and determine whether the local government's exercise of the delegated power of eminent domain is in accordance with the delegating law." Slip op. at 6 (footnote omitted). If only US courts would take the same approach. Boy howdy!

Yes, this is a case about the requirements of a statute, and doesn't directly deal with the issue in cases like Berman and Midkiff where there was a direct challenge to to power to take. But read the entire opinion. The Philippines Supreme Court viewed the statute through a property rights lens, not the usual judicial deference where US courts mostly accept whatever the condemnor says -- hook, line, and sinker -- even where a statue may be involved. 

City of Manila v. Roces Prieto, No. 221366 (S. Ct. Philippines Aug. 29, 2019) 

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! 

Get Ready: The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference Agenda Coming Soon

The final agenda and faculty list will soon be officially published, but we wanted to give you a preview of what is in store at the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, January 23-25, 2020, at the Nashville Hilton (downtown, just a few steps away from everything that Nashville has to offer). 

Don't miss out: in recent years, we've been at-or-near capacity, and the conference hotel has even sold out a couple of times. Visit the ALI-CLE website to register and hold your space. 

Here are some of the things we'll be discussing: 

• Making Sense of the New Rules After Knick v. Township of Scott: Where Do I Go, What Do I Do?
• The Missing Link in Valuing Fixtures
• When a River Runs Through it: Water Rights and Takings
• Responding to Project Changes: Valuation When Government Action is Ongoing
• Property Rights as Civil Rights: Seeking Justice Through The Fifth Amendment
• Special Benefits: The Givings Clause?
• How To Try and Settle Pipeline Cases
• And, of course Ethics. 

Many of our expert faculty are returning, but we're also featuring many new presenters who have never been on our dais before. And a mix of perspectives and backgrounds: property owners' counsel, condemning agency lawyers, public interest, judges, and legal scholars. Plus a chance to meet your colleagues from across the country. Make connections, and see old friends. 

Early bird registration underway here. See you there. 

Tuesday Takings Round-Up: Alien Takings; Zombies; Kelo, Philippines-Style; Kafka

Here's what we are reading this Tuesday:

• Could Eminent Domain Be The Zombie Mall Slayer? (Barista's note: any time we see use of the eminent domain power bandied about as the solution to problems other than the lack of roads and post offices, we get nervous.)
• RTC: Eminent domain can be delegated to private entities - Kelo isn't just a U.S. thing. A story from the Republic of the Philippines.
• How the Storm Area 51 phenomenon could be an alien benefit to family that once owned the land - we're not saying it was aliens...but it was aliens. A story of the "Area 51" taking, where the owners are represented by our colleague Autumn Waters.
• Georgia colleagues Christian Torgrimson and Daniel Peterson write about Knick: The Eminent Domain Consequences of a U.S. Supreme Court Ruling.
• From the "be careful what you sue for" department: Maui County’s appeal is not to ‘gut’ the Clean Water Act (Maui's mayor responds to claims that the County's present refusal to settle the CWA lawsuit brought by the plaintiffs now being considered by SCOTUS is a betrayal of principles.)
• Judge Attacks “Kafkaesque Regime” That Lets Pipeline Companies Seize Land With Eminent Domain - more on Judge Millett's concurring opinion in which she points out the bizarre situation property owners find themselves in in Natural Gas Act Takings. Our take on the issue here.
• U.S. Supreme Court Seems Poised To Erode Separation of Powers - retired Chief Judge of the New York Court of Appeals Sol Wachtler writes about his view of the border wall.
• In a Bankruptcy Sale, 'Takings' Claims Kick in Early - about the recent Federal Circuit opinion holding that a takings claim accrues for purposes of the commencement of the statute of limitations even before a property owner is actually injured.

Check them out.

New Land Use Law Blog To Follow: Merriam's Corner ("Life, Liberty, and the Pursuit of Land Use")

Land users and dirt lawyers know Dwight Merriam. (And if you don't, you are not really a land user, are you?)

He's won landmark cases (has even beaten Yours Truly in one of those cases way back in the day). Written tons of articles and books. Edits Rathkopf. Contributes to Nichols. Mentored multiple generations of land use lawyers (me included). All while serving his country in the U.S. Navy. 

Here's your chance to tap directly into the source. Dwight has (finally) started a blog, Merriam's Corner, about the topics we all love. 

So sign up and follow. Listen in as Dwight thinks out loud for our benefit.

Welcome to the blog world, Mr. Merriam.  

Capt Henry Orders You To Boldly Go To The 2020 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville, Jan. 23-25, 2020

Recently, we requested crowdsourcing of this year's "come to the ALI-CLE Eminent Domain Conference video." Instead of doing the video ourselves, we asked folks to "please send a short clip of you and/or your colleagues telling us why you think the Eminent Domain and Land Valuation Litigation Conference is the place to be in January. Humor welcome, but not required."

Our friend and colleague, St. Louis' Paul Henry, has answered the call, admirably. Paul, as you may remember, is famous for his presentation a couple of years ago at the Conference about "Everything About Eminent Domain I Need To Know I Learned From Star Trek." Which he gave in a Starfleet captain's uniform. Brave man. Readers know that we dig Star Trek. But we are not that brave, so bravo, Paul.  

See if you don't agree that Paul has now raised the video bar. 

For the rest of you: the challenge has been thrown down, so its time to step up. Send yours, now. 

Get Ready - ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Nashville Jan. 23-25, 2020

Details soon. In the meantime, get your earlier registration discount.

Cases And Links From Today's Eminent Domain And Pipelines Conference (Houston)

I am grateful that planning chairs Justin Hodge and Jeremy Baker invited me to their conference. A room full of experts. Here are the links to the cases and other items I spoke about:

• Knick v. Township of Scott: initial thoughts on what might be a dawning "golden age" of property cases
• Knick, Entirely in Memes
• Givens v. Mountain Valley Pipeline, LLC (SCOTUS considering whether private pipeline condemnor can use a Rule 65 preliminary injunction to get quick-take by another name)
• Cert Denied In Immediate-Possession-By-Injunction Case (But There's One More In The Pipeline)
• Bump Stocks and Takings
• Is Seizing Prescription Drugs for Use as Evidence a Taking?
• Barboan: Eminent Domain and the Taking of Indian Property
• Colorado (Carousel Farms): A Lot Of Private Benefit Today Does Not Overcome Smattering Of Possible Public Future Benefit
• Protip for Megaproject - How to Not Name Your Project
• All Your Race Are Belong To Us: Baltimore Is Taking The Preakness Stakes (We're Serious)
• Ninth Circuit Denies En Banc Review In Case Upholding "Core" and "Fundamental" Property Rights, But Two Trump Judges Dissent
• Say What? Montana Supreme Court: Gov't Occupying Property Under Claim Of Right Is Only A Tort, Not A Taking; Tort vs "taking" - Montana, California (wildfire liability)
• Frozen: "Necessity" In Eminent Domain Can Mean Mere Convenience (Or Anything Else The Condemnor Says)
• New Cert Petition: Fifth Amendment Requires California To Spread The Cost Of Wildfire Inverse Condemnations To Ratepayers
• How Is "The Public" Defined When It Comes To Special Damages?
• Ninth Circuit: Inverse Condemnation Plaintiff Must "Share The Pain" - City Can Shed Obligation To Pay Just Compensation In Bankruptcy, Which Is "Purely A Monetary Claim"
• How Is "The Public" Defined When It Comes To Special Damages?
• We Are The World: Iowa SCT Finds Dakota Access Pipeline Will Promote The Public Convenience For Iowa, Even If Iowans Don't Get Any Of The Pipeline's Oil
• Are Pipelines For The Public's Benefit? If So, What Public?
• "Doggone stinky" government action, but no property right in use of land
• Ninth Circuit: "fundamental" attributes of property may be immune from state law changes
• Property rights in a "clean and healthy environment" - Hawaii vs. DC Cir (Pennsylvania law)
• PruneYard Undone: California's Union Easement - Which Invites Labor Organizers To Enter Private Property - Isn't A Physical Taking
• Oregon App: Physical Inverse Condemnation Claim Is Ripe From The Moment Of Occupation
• 11th Cir: City Inviting Public To Access Beach Across Private Land Is Inverse Condemnation
• Federal Circuit: Restoration Of Foreign Govt's Sovereign Immunity For Terrorist Acts Isn't A Physical Taking Of Victim's Money Judgment

And finally, this. Our single Powerpoint slide today.  Because there are some days you just feel like the odd person out. 

Colorado: A Lot Of Private Benefit Today Does Not Overcome Smattering Of Possible Public Future Benefit

The Colorado Supreme Court issued an opinion in a case we've been following on public use in eminent domain. in which it reframed the Questions Presented.

In Carousel Farms v. Woodcrest Homes, No. 2018SC30 (June 10, 2019), the court reversed the court of appeals' conclusion that a taking lacked a public purpose because even though the public might use the roads and sewers which the utility district (formed for the specific purpose of taking the property which the private-benefitted developer could not acquire by negotiation) said it would install in the future did not outweigh the overwhelming private benefit in the present. In the Court of Appeals' words, "[w]hen the primary purpose of a condemnation is to advance private interests, even if there will be an eventual public benefit, the condemnation is not for a public purpose." 

The Supreme Court turned that analysis upside down, concluding that a possible future public use of the property taken is enough to make the "essential" purpose of the taking public, overcoming even a lot of private benefit today:

Here, the taking is essentially for public benefit. Parcel C will be used for public right of ways, storm drainage, and sewer improvements. It is difficult to argue that those functions don’t essentially benefit the public. It is true that Century will also benefit from the taking, but, as we already explained, that doesn’t somehow change the essential benefit from public to private. If a utility company can condemn a large strip of land to supply power to a private, for-profit corporation because residents might use the power line in the future, then the District may condemn Parcel C for planned improvements that will benefit the community. See Shaklee, 784 P.2d at 318–19.

Slip op. at 16-17. 

The Supreme Court viewed it through a long-term lens, to be measured by future possible benefits to the public, not merely the initial private-benefit use. Rejecting the court of appeals view, the court held:

¶29 The division reasoned that the eventual dedication of the land to a public purpose is insufficient because the “taking itself” wasn’t for a public purpose. Carousel Farms, ¶ 35. That is, the first benefit to be received (even if a minor one) is satisfying the contractual obligations between the District and Parker, which isn’t a public benefit in any sense. Id. at ¶¶ 35–37. Thus, the argument goes, because that first benefit itself isn’t public, the entire taking doesn’t pass constitutional muster. Id.

¶30. This analysis fails for two reasons. First, the test is, and has been since 1906, whether the taking is “essentially for public benefit.” See Tanner, 83 P. at 465; accord Buck v. Dist. Court, 608 P.2d 350, 351 (Colo. 1980). A taking may have some sort of antecedent benefit that isn’t public, so long as the essential benefit is ultimately public. Presumably, developers and towns frequently enter into agreements before land is condemned. How else would towns garner the political support to complete parks or other public works projects? The town likely would need to hire a developer and sign a contract before it exercised its eminent domain power and spent taxpayers’ dollars on the condemnation. But the division’s reasoning would have all agreements of this sort fail, because the first benefit or purpose is to satisfy that contractual obligation, even though the essential benefit is ultimately building parks or other public works for the town.

¶31 Second, it relies on flawed precedent on takings and public benefit. The division cites another division’s opinion in American Family Mutual for the proposition that the taking itself must be for a public purpose, and, in turn, American Family Mutual cites Trinity Broadcasting for the same notion. See Carousel Farms, ¶ 35 (citing Am. Family Mut. Ins. Co. v. Am. Nat’l Prop. and Cas. Co., 2015 COA 135, ¶ 30, 370 P.3d 319, 327); American Family Mutual, ¶ 30, 370 P.3d at 327 (citing Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916, 921 (Colo. 1993)). But Trinity Broadcasting made no such declaration.

Slip op. at 17-17 (footnotes omitted).

The court recognized that "review of potentially improper takings can often be problematic because courts don't know ex ante whether the land will be used as claimed[.]" Slip op. at 17. No kidding. But the court got over the ex ante problem by asserting "here we know from the start how the District will utilize Parcel C." Id. But that's just an assertion from the condemnor, not some kind of hard-and-fast promise, right? If a court can't hold the taker to its assertions later, shouldn't the public use or purpose or benefit from the taking be measured in the present, when a court can test the assertion? What this decision means is that any competent condemnor should be able to overcome a claim of overwhelming private benefit by including a future promise of public benefit or use (unless the condemnor employs, in Justice Scalia's words, a "stupid staff"). 

Finally, the court rejected application of Colorado's post-Kelo "no economic development" statute, concluding that the statute does not apply when a public entity takes property and keeps it for itself. See slip op. at 24-25 ("The plain language of section 38-1-101(1)(b)(I) only limits transfer of condemned land to a private entity. Because there was no transfer and no private entity involved here, that section is inapplicable.").

The court's bottom line, in our view, was that these guys were holdouts, so of course this was a public use and benefit to get them out of the way. See slip op. at 21 ("Moreover, eminent domain was partly designed to overcome the “holdout” problem that occurred here. ... The District exercised the power of eminent domain to prevent a holdout owner from thwarting the assembly of adjacent properties that would benefit the public.").

Count us as not convinced. 

Carousel Farms vs. Woodcrest Homes, No. 2018SC30 (Colo. June 10, 2019)

 

33rd Annual Land Use Institute: Baltimore April 11-12, 2019

Come join us at the 33rd Annual Land Use Institute, in Baltimore, Maryland, April 11-12, 2019.

As the brochure notes:

This Annual Land Use Institute program is designed for attorneys, professional planners, and government officials involved in land use planning, zoning, permitting, property development, conservation and environmental protection, and related litigation. It not only addresses and analyzes the state-of-the-art efforts by government to manage land use and development, but also presents the key issues faced by property owners and developers in obtaining necessary governmental approvals. In addition, the entire approach of the program is to provide practice pointers that give immediate “take home value” by focusing on topics relevant to the average practice of the attendee.

The keynote will be delivered by Dennis Archer, former mayor of Detroit (and former Justice of the Michigan Supreme Court, and former President of the ABA), speaking about "Detroit’s New GM Plant from Mayor Coleman Young to Mayor Michael Duggan." 

We're on the faculty as well, speaking about the "Nuts and Bolts of Bringing and Defending a Takings Case." We'll also be moderating a panel of experts on the latest developments in RLUIPA law. 

Come join us at the Royal Sonesta Harbor Court Hotel and the University of Baltimore Law School. Registration is open here. 

ABA 33rd Annual Land Use Institute Brochure 4-2019

Webinar Today - Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters

Later today (starting at 1pm ET), our colleague Edward Thomas is chairing an ABA-produced webinar on "Low Income Populations: Underrepresented Socially, Overrepresented as Victims of Natural Disasters: Using the Law to Solve a Serious Problem."

As in other areas of life, when natural disasters strike, it is often the owners of modest means who are the hardest hit. Floods, wildfires, sea level rise, you name it. And Ed has been there: he's a former FEMA guy, and currently the President of the Natural Hazard Mitigation Association who understands that property rights have to be respected in these situations. 

Find out more information about the program and register here. 

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)

Wish You Were Here: Links From Day 1, 2019 ALI-CLE Eminent Domain And Land Valuation Litigation Conference

Here is our annual "proof of life" photo, taken from the dais during the opening session, to prove that all 250 of us were in the room for the ALI-CLE Eminent Domain Conference, and not out on a Palm Springs golf course (it is 72º and sunny, so a golf course would not be a bad place to be).  

Here are the links from our talk this morning (along with Amy Boulris) about the latest issues to watch in eminent domain:

• NJ Appellate Division: "take now, decide later" will not support redevelopment necessity. Unless there's "linkage." 
• Louisiana Court of Appeals with two points for condemnors: (1) don't name your project the "Megaproject," and (2) don't let your Executive Director testify that but for the Megaproject needing the property, the local government would not have condemned it. If you do, don't be surprised the court views the taking with a jaundiced eye.
• Quick takes by Rule 65 preliminary injunctions: Third Circuit joins the growing circuit split on whether private condemnors under the federal Natural Gas Act can acquire early possession of property, even though Congress in the NDA did not delegate the condemnors the Quick Take power. Our amicus brief which details why we think this is wrong. 
• In these federal takings, does state or federal law provide the rule of decision on compensation (and damages)?
• Violet Dock Port: for "unique" property, the Louisiana Supreme Court concludes that fair market value isn't the only measure of just compensation. Replacement cost evidence is admissible.
• "Property" rights in a clean and pure environment. The Hawaii Supreme Court concludes the state constitution's provision gives right to a due process property right. But the D.C. Circuit concludes that Pennsylvania's similar constitutional provision does not give rise to an enforceable right, because you can't exclude others from a clean environment.
• The Uniform Relocation Act and the Pirate's Code: (the URA is merely "guidelines," and does not give rise to a private right of action by a property owner). 
• Who gets paid: owner at time the court issues order of possession, or the owner at the time the condemnor actually possessed? If you said the former, you'd agree with the Nevada Supreme Court. 

Here are some other cases we didn't have time to cover, but which you may find of interest:

• Ninth Circuit (2-1) concludes that inverse condemnation judgment which has not been reduced to judgment can be discharged in bankruptcy. 
• Virginia Supreme Court: the term "and" really means "or" in Virginia's precondemnation entry statute. 
• Iowa Supreme Court considering whether the PUC's determination of public convenience also determines whether a taking is for public use. 

Below is a "reverse" view of the opening session, taken from the audience's perspective. Great crowd, a record number (again). 

Finally, if you are here attending, please stop me and say hello. 

ALI-CLE Palm Springs (72º, Sunny) Here We Come

If you didn't register to attend the 36th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference later this week in Palm Springs, California, well then, shame on you!

According to the National Weather Service, while you and the rest of the country is freezing, we'll be enjoying the balmy desert climes, and discussing the topics we love: eminent domain, redevelopment, relocation, regulatory takings, trial and appeal strategies, doctrinal changes on the horizon, hot topics (border wall, pipelines, wildfires, and flooding), and others. 

Featuring a national faculty (many new to the ALI-CLE dais), and attendees from the entire spectrum of practice, academia, and the bench. 

If you are not joining us, be sure to follow along on the blog (we will post updates daily), and on Twitter (@invcondemnation, @ALI_CLE #EminentDomain2019). And plan on joining us in 2020, when we'll be in a new city (by popular demand!). And if you have topics or speakers to propose, start thinking about those as well. 

Hot (Eminent Domain) Topics, Cool Jazz

Don't Miss the 2019 Eminent Domain Litigation Conference from American Law Institute CLE on Vimeo.

Check out this sound blurb, produced by the good media folks at ALI-CLE, about the upcoming Eminent Domain and Land Valuation Litigation Conference. (And no, we didn't record this in a jazz club; although I wish we had.)

There's still time to register, and come and join us in Palm Springs. 

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)

Space Remaining Is Limited - Register Now For ALI-CLE Eminent Domain And Land Valuation Litigation Conference (Palm Springs, Jan. 24-26, 2019)

We're almost there, but we still have room remaining. At the 2018 Conference in Charleston, we both sold out the registrations and the conference hotel, so we planned ahead for the upcoming 2019 Conference in Palm Springs at the Renaissance Palm Springs Resort. 

Register here. You will also be able to download the print brochure (above), or find out more details about the agenda and faculty on line. As always, we have assembled a great faculty -- many of them new speakers -- on the hottest topics in eminent domain and takings law: pipelines, jury presentations, challenging the take, an update on the most important decisions of 2018, pre-condemnation planning (from both the condemnor and property owner perspective), the border wall, and relocation. 

And of course, ethics and the "101" track for those new to the field, or experienced lawyers who would like a refresher on the basics. And these featured presentations:

• JFK: The Assassination, the Zapruder Film, and Just Compensation - Judge Andrew Edison and Justin Hodge
• Keynote Address - Property Rights: Foundation for a Free Society – President W. Taylor Reveley (College of William and Mary, Emeritus)
• Tips and Traps for the New Eminent Domain Lawyer –Andrew Brigham, Thor Hearne, Justin Hodge, Mikaela Rivera, Jack Sperber, and Joseph Suntum
• Earth, Wind, (Water), and Fire: A Report From te Front Lines of the Flood and Wildfire Inverse Cases –Thor Hearne, Professor Shelley Saxer, and Edwin Smith
• Responding to Misconceptions and Urban Legends About Eminent Domain in Popular Media – Andrew Gowder, Mark Murakami and Kelly Sheeran

As always, there are sponsored receptions and other networking events so you can meet your colleagues from across the nation. 

We have already exceeded the conference room block at the Renaissance (which means there are still rooms available at the conference hotel, just not at the discounted conference rate). But fear not: ALI has secured three overflow room blocks at nearby hotels (our Conference is in downtown Palm Springs), so there are many options for lodging remaining. ALI has also booked the very largest conference facilities, so registrations is still ongoing, and we likely will not sell out like in Charleston. 

But you never know. This program is growing in popularity and attendance, with each year exceeding the last. So don't delay, make your hotel booking now, and register to come join us in January. 

Link's From Today's Eminent Domain Conference (Scottsdale)

A very good and active crowd for today's Eminent Domain Conference (CLE International) in Scottsdale, Arizona. It was good to visit with some old friends, and also to get to meet some new colleagues.

Our talk focused on national trends, and this year's most interesting condemnation and takings cases. Here's the links to the cases I mentioned that are not in the written materials:

• Texas Court of Appeals: "Rail Construction Cutting Off Access Can Be Inverse Condemnation - Even When There's Been No Taking."
• Garretson: Arizona Supreme Court on access. Oregon goes the other way: "Cutting Off Direct Highway Access Is OK, Provided Property Isn't Totally Landlocked."
• California: "Increasing A Nonprofit's Losses May Result In A Business Goodwill Claim."
• The Colorado public use cases: public use vs. public purpose: Lafayette and Carousel Farms.
• Louisiana: Violet Dock Port - public use approved, but replacement cost should be considered in the just comp calculus.
• "Before" really means before: Post-Kelo statutes: how effective? (Georgia)
• Tribal immunity: land only partially owned by a tribe is off limits to eminent domain. 
• Highest and Best Use could include "conceptual plans" (Florida)

PS - the pic above isn't me -- I was too wrapped up in the presentation to snap one -- but is of the speaker who took the lectern right afterwards. Great stuff.

Audio: Our Interview With Author Howard Mansfield - "The Habit of Turning The World Upside Down - Our Belief in Property and the Cost of That Belief"

Earlier this week, we spoke to Howard Mansfield, author of the recently-published book "The Habit of Turning the World Upside Down - Our Belief in Property and the Cost of That Belief."

His book is about property, property rights, and how these ideas are processed by the American psyche. But instead of the usual scholarly (and very often dry) treatment of these topics that we might expect – especially those of us in the legal and academic world – Mr. Mansfield takes a slightly different approach. He relates stories of how property fits in with the culture – the different and often competing narratives that are attached to the notion of property – and the often-contradictory way in which we in the United States view the idea of ownership and possession.

Listen to our interview above (Sound Cloud stream), or if that does not work for you, stream it below or simply download the mp3 here.

A great read, and a perfect gift for those on your holiday lists.

Prof. Gideon Kanner: "Bye, bye General Motors Poletown Plant"

Following the announcement that GM will be closing its Detroit-area Hamtramck assembly plant (originally a Cadillac plant), comes the reminder that it wasn't supposed to be that way. This was the area, after all, condemned for "economic development" in the infamous Poletown case. 

But as the Detroit Free Press reported in "GM's Hamtramck plant closing reopens old controversy in Detroit," "[m]aybe the naysayers were right all along." Yes, the Michigan Supreme Court righted the ship later, in County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), but that came too late to save the Poletown property owners.

For some commentary from someone who was there, check out Professor Gideon Kanner's most recent post, "Bye, bye General Motors Poletown Plant," where he writes, "This caper cost the taxpayers some $200 million and it spared GM having to pay its full tax share. It was supposed to produce thousands of jobs. But it didn’t. By the time the dispatch about closing this plant came from the Detroit Free Press, there were only 1500 employees at that plant instead the 5000 that were promised."

A sad, and mostly predictable, end. 

Check out his post here.