City's attempt to "un-eminent domain" seized land fails in court

The city of Dublin, Ohio had planned to construct a $50 million interchange project at Interstate 33 and Post Road for which a certain amount of property was needed. Dublin went about exercising its power of eminent domain to acquire the necessary private property to build this public project. Although the property owner and City have not yet completed the valuation process to determine just compensation for the taking, the City has paid the owner what it believes to be fair market value for the 3 parcels taken. The City has also taken possession, begun clearing and preparing the approximate 20 acres of land for construction.

So what's the issue, you might ask? Well, Dublin has decided to put this particular project on hold due to the difficult economy. Further, having concerns about the future of the project, the City has decided to return two of the unused parcels to its owner and request a refund of the City's money. Hmmm...

Despite Dublin's position on this matter, eminent domain is not akin to making a purchase at your local department or big box store, where the customer, in this case the government, can simply pay the sticker price, take the item home, try it out and then decide that it wasn't really what was needed or that it did not quite fit only to repackage the purchase and return it to the store for a refund. In the case of this private property, the City has razed the improvements located on the remaining parcels, cleared mature trees and made other alterations to the land. Now, that would be like removing the item from its packaging, altering it, maybe evening using it a few times so that the item showed some wear and and then returning it to the store altered and used, but not defective, and requesting a refund.

The property owner argued against the City's plans to abandon the project and require him to return the compensation paid for the taking siting that crews had already dug up some of the property, taken down a barn and removed trees. And, Union County Common Pleas Judge Don Fraser agreed with the owner. In his ruling, the judge opined that Dublin had effectively taken possession of the land and that the property owner will not have to repay the city.

The full story is available here: Dublin loses bid to get refund for land taken for Rt. 33 interchange

Source: The Columbus Dispatch

Right: Map depicting the proposed Route 33 Interchange at Post Road project area, Dublin, Ohio - from The Columbus Dispatch.

Thanks to Planetizen for its mention of this story.

Update: Virginia business fighting blight and eminent domain to keep its property

The news report featured below aired on May 18, 2010 on WAVY-TV 10 (Portsmouth, VA).

Norfolk businessman fights NRHA, ODU
Andy Fox
(excerpted from the transcript)

NORFOLK, Va. (WAVY) - Central Radio Company has been fixing communication systems for the Navy for decades, but now Old Dominion University, through the Norfolk Redevelopment Housing Authority (NRHA), wants the property on 39th Street for retail shopping.

On Thursday, a Bob Wilson, owner of Central Radio, will begin to fight in court to keep his business. The timing of the court battle coincides with a new Virginia law that takes effect on July 1: You cannot take property that is not blighted.

* * *

Disclosure: Virginia OCA Member, Joe Waldo, is defending Central Radio Company in this eminent domain proceeding against the NRHA and Old Dominion University (ODU).

Mr. Waldo will argue on behalf of Central Radio Company and its owner, Bob Wilson, that the property is not blighted and therefore should not be taken by eminent domain for a redevelopment project. However, as the current Virginia law regarding blight remains on the books and legal precedent is stacked against the property owner, Mr. Waldo and Central Radio have a tough legal battle ahead.

In a 2009 eminent domain case, NRHA v. Arney, the court found that the condition of the property being condemned did not matter. Blighted or not - "if an area...is subject to rehabilitation the condition of a single structure is immaterial." Additionally, Norfolk Circuit Judge Louis Sherman concluded in his 29-page July 2009 opinion that the transfer of private property - whether blighted, economically profitable, or not - to another private entity by a public authority using its power of eminent domain was simply insignificant. Judge Sherman wrote, "...making property available for redevelopment by private enterprise is merely incidental."

In the case of Central Radio, Mr. Waldo will argue that the ruling in Arny does not apply as the area surrounding the Central Radio property is no longer blighted and redevelopment to eliminate blight is not longer needed nor a public purpose under Virginia law.

Virginia business battles blight and eminent domain to keep its property

Attorney Joe Waldo and the Central Radio Vice President Bob Wilson discuss on Fox & Friends how the neighboring university and housing authority have used a 12-year old study to determine that the property at which Central Radio, a defense contractor, currently operates its business is blighted and, therefore, should be redeveloped to spur economic development. Mr. Waldo explains that the laws in Virginia regarding eminent domain and blight allow for the taking of blighted property for the public purpose of redevelopment. However, Mr. Waldo points out in this case blight is simply a pretext cloaking the real intention of the taking - to give private property to a private developer who wishes to build a shopping center.

Central Radio employs 75-100 employees, has been in business for 75+ years and has maintained its business at this specific location for over 50 years. At a time of economic need, an increasing trade deficit and with two ongoing wars to require a business that employs educated and skilled workers in support of our military relocate so that people can flock to the same location to rack up their credit card bills in favor of imported goods can simply not be considered a public purpose. Once again, lets remember New London where the promise of economic development has become itself a blighted, barren wasteland that promises only good bird watching.

There may some good news in this story, as Mr. Waldo mentions that Virginia's Governor & Attorney General are moving for a constitutional amendment to prevent the taking of private property for economic development in the State of Virginia.

Disclosure: Joseph Waldo (featured in the video and mentioned above) is the OCA Member attorney in Virginia.

Where does SCOTUS nominee Elena Kagan stand on property rights?

Everyone is talking about President Obama's announcement that he has nominated Elena Kagan to replace retiring Justice John Paul Stevens on the U.S. Supreme Court.  Likewise, everyone is talking about Ms. Kagan - her credentials, her experience, and her philosophies (or, at least the lack of knowledge of her personal views and philosophies).  "Whether by ambitious design or by habit of mind, Ms. Kagan has spent decades carefully husbanding her thoughts and shielding her philosophy from view."  (NYT 5/10/10 Editorial: Searching for Elena Kagan.)

We do know that as dean of Harvard Law School, she spoke out against the military's "Don't Ask, Don't Tell" policy.  In 2005, she joined with other law school deans in a letter to Congress opposing an attempt to strip courts of the power of judicial review with respect to detainees at Guantánamo Bay, Cuba.   Prior to that, as a law professor, her 2001 Harvard Law Review article defended presidential authority, specifically relating to President Clinton's assertion of greater centralized control over executive agencies, which she called "presidential administration."  

As Solicitor General, the top attorney litigating on behalf of the U.S. government, it has been her job to defend the government's views rather than her own.  Although she did not argue the government's position before the Court, she was counsel of record on the U.S. government's amicus brief in Stop the Beach Renourishment, Inc. v. Florida Dep't. of Environmental Protection, No. 08-11 (cert. granted June 15, 2009).  (Deputy Solicitor General Edwin S. Kneedler argued for the federal government on December 2, 2009.  See Robert Thomas's analysis of Mr. Kneedler's argument here. )  As it stands, Ms. Kagan has not indicated her position on many current legal issues, including property rights. 

Ms. Kagan's most revealing writing may be her 1995 University of Chicago Law Review article, "Confirmation Messes, Old and New," in which she reviewed The Confirmation Mess by Stephen L. Carter (Basic Books, 1994).  Here she writes that the process of confirmation hearings has become “tidy - muted, polite and restrained,” a “vapid and hollow charade” that serve "little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government" (p. 941).  "[T]he problem is not that senators engage in substantive discussion with Supreme Court nominees; the problem is that they do not." (p. 942)  Certainly, Ms. Kagan, we hope that the Senate will heed your suggestion and shake it up a little in the upcoming confirmation hearings.  Perhaps then we, the citizens, will become familiar with your substantive views and less cynical of the process.

Homeowners stand ground against eminent domain

If the (homeowner) does not get paid full compensation, then they really have paid more for the public good than anyone else.

The following is an excerpt from the report (video link above) by Jennifer Lindgren that aired May 5, 2010 on FIRST COAST NEWS. Links to the full transcript appears below.

JACKSONVILLE, Fla -- Property is more than a piece of land for those who have worked their entire lives to make a comfortable home. What happens when the government says they need it?

Lonnie Portwood and his wife have spent decades making a home on Ft. Caroline Road, choosing the once-shady, quiet street for its beauty and seclusion. The view changed, however, when the couple received a notice in 1999 that the road was to be widened as part of the Wonderwood Connector.

"Every reason we bought the property, they're taking away!" Lonnie said.

They were familiar with the government's right to take a piece of private property for public purpose. But when The Jacksonville Transportation Authority offered the Portwoods an appraisal of $9,100 for 25 feet of their front yard and a temporary construction easement on the side, the couple hesitated.

"The initial offer seemed ridiculously low," Lonnie said.

For more about this story of one family's eminent domain struggle and how they stood their ground against the local governmental authority to receive 10 times the amount of the low-ball initial offer, click here to read the transcript of "Jacksonville Homeowners on Ft. Caroline Road Stand Ground in Eminent Domain Case."

Disclosure: Attorney Andrew Brigham represented the property owners featured in this news segment and was interviewed by the reporter, Jennifer Lindgren. Andrew Brigham is an OCA Member.

Update: Amici brief filed in SCOTUS "undivided fee rule" eminent domain case

Yesterday, the National Association for Home Builders together with the Wisconsin Building Association filed a brief amici curiae in support of the VFW in the City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

The amici brief, filed by Robert H. Thomas (OCA Hawaii Member), urges the Court "to grant the writ of certiorari to review the Wisconsin Supreme Court’s conclusion that in eminent domain law, somehow the whole can be lesser than the sum of its parts." The brief calls the undivided fee rule a "rule of convenience" allowing a court to avoid valuing a leasehold apart from the fee simple estate when the two separate interests are condemned simultaneously and, further, that this rule cannot override the 5th Amendment's guarantee of just compensation.

Check out Robert's blog for detailed analysis of the petition for writ of certiorari filed by Michael Berger and Gideon Kanner, also OCA Members, (see our previous post announcing the filing of the cert petition here) as well as the arguments in the Home Builder's/Wisconsin Building Association's amici brief.

The SCOTUS online docket indicates that an order to extend time to respond has been entered in the case granting the Respondent, City of Milwaukee Redevelopment Authority, 30 additional days to respond. We will keep watch for the Respondent's brief and any other amici briefs that might be filed, so check back here on June 4.

UPDATE: The public interest law firm Institute for Justice (IJ) also filed a brief amicus curiae in support of the VFW in this case. The brief was authored by Ilya Somin, Associate Professor, George Mason University School of Law, and Dana Berliner, Senior Attorney, Institute for Justice. (Disclosure: Dana Berliner is also an OCA Member.) IJ's brief argues that the application of the rule in this case violates both the general constitutional principle of just compensation and the Supreme Court’s specific formula regulating compensation for the taking of leaseholds. See Professor Somin's post on The Volokh Conspiracy blog here.