The owner’s land is a peninsula most of the time, but when Flathead Lake, Montana, rises a few months each year, it needed a bridge to access. So it asked the County “How about a bridge? We will only use it when the water rises.” County said yes, issued a permit.
NIMBY neighbors, however, had
We’re starting off the new year with some eminent domain goodness. Tim Sandefur has published “Eminent Domain in the Constitutions of Arizona, Washington, and Other States,” 18 N.Y.U. J.L. & Liberty 167 (2024).
There’s a lot in the piece that will keep you reading, but what we found particularly insightful was how public use/purpose limitations “should operate in practice.” In our opinion, it’s fairly easy to say that the Fifth Amendment (and state constitutions) operate as a robust check on the sovereign power to take property for public use, but a lot more difficult to apply that broad notion to particular circumstances in a way that is both uniform and predictable. Right now, we seem to be operating on a know-it-when-I-see-it basis, but that doesn’t get us to a general rule. This piece goes a long way to getting us to a general rule.
Highly recommended.
Here’s the Abstract:
The nineteenth century was an extraordinarily prolific age of constitution-making. One of the greatest concerns of constitution-makers during this period—particularly in the western states—was the protection of private property against threats such as the use of eminent domain and the damage to property resulting from public works projects. This Article takes the eminent domain provisions of the Arizona and Washington constitutions as a point of departure to examine the innovative ways in which constitution-makers sought to limit government’s power to deprive people of their property. These constitutions—which until the admission of Alaska and Hawaii were the most up-to-date constitutions in America—contain four such innovations: (1) an explicit ban on takings for “private use,” reinforced by prohibitions on judicial deference regarding the definition of “public use”; (2) a compensation requirement for the “damaging” of property; (3) a requirement that payment precede a taking, and (4) a ban on deducting from just compensation awards the amount of purported “benefit” resulting from a taking. The Article traces the origins of these four protections, with reflections on how they should operate in practice.
For those of you who follow the wildfire/inverse cases (centered in, although not exclusively, California and Hawaii), you might want to check out this article by a fire engineer: Vytenis Babrauskas (aka “Dr. Fire“), “Electricity-Caused Wildland Fires: Costs, Social Fairness, and Proposed Solution.”
As the title suggests, the article is
A short one from the Ohio Court of Appeals.
In City of North Canton v. Brown, No. 2024-CA00030 (Dec. 16, 2024), the court held the trial court in a just compensation action wrongly excluded the owner’s evidence of the County’s property tax valuation.
Hang on. Doesn’t the owner usually want to exclude evidence of
A short one today, but worth reading because the Kentucky Supreme Court’s opinion in Kentucky Transportation Cabinet v. Atkins, No.2023-SC-0173 (Dec. 19, 2024) highlights an important point: when offering evidence of the compensation owed for the taking of income-producing property–and “[d]etermining the value of condemned real property is not a science”– it isn’t “speculative”
The latest edition of the Brigham-Kanner Property Rights Journal (William & Mary Law School) is out, with intriguing Dirt Law scholarship from the luminaries in the field.
Check out the Table of Contents above, and then go here to download each piece or the entire issue. We will note, with a small bit of pride
In what might be the most cliched “New York City” land use situation, check out the Appellate Division’s opinion in Coalition For Fairness v. City of New York, No. 2023-05338 (Dec. 5, 2024).
Want to convert your SoHo-NoHo artist live/work space to unlimited residential use? Be prepared to pony up and pay to the
Strong letter to follow!
A long-ish read (32 single-spaced pages) from the Federal Circuit in City of Fresno v. United States, No. 22-1994 (Dec. 17, 2024), but worth reading.
Not only will you get a crash course in how water is allocated in California’s vast central valley (as the billboards above, set up along
Our colleagues at the Institute for Justice–the same firm that represented Susette Kelo in her oh-so-close run at clearing up the Public Use requirement in eminent domain, today filed this cert petition in which they take another run. We will let you savor the wine and find out about the case and the arguments by
