Property rights: Protection for the little guy (and gal) until taken by eminent domain

Friday's New York Post includes an article by Glenn Harlan Reynolds about the Columbia University eminent domain case and the recent Supreme Court decision to deny cert. Mr. Reynolds discusses the importance of property rights and how the term "public use" has been redefined by the courts "to include pretty much anything the government wants to do with the property." He argues that the power of eminent domain has been used less as a tool to affect public purpose and more a method "to promote the 'vision' of...the powerful and the connected."

We often hear politicians and pundits denounce property rights. Property rights, we're told, protect the fat cats against the needs of the public. They're a tool for keeping the little guy down.

Like a lot of what we hear from politicians and pundits, this is exactly the opposite of the truth. The fat cats don't need the protection of property rights, because they already control the political system. It's the little guy (or gal), the one without political juice, who needs strong property rights for protection from the fat cats and the politicians they control.

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The courts are supposed to be there to protect the rest: The people without the connections, the ones who depend on the rule of law to keep the predators away.

That protection has never been perfect, of course, but in the area of eminent domain it's become a sick joke. The message sent is that your property belongs to you -- until somebody with more clout wants it for something else, be it a "vision," or a moneymaking scheme.

Read more here.

Supreme Court denied cert in Columbia University eminent domain case

Yesterday, the U.S. Supreme Court declined to hear the Columbia University eminent domain case Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010).

As Charles V. Bagli wrote in Columbia Wins Fight for West Harlem Campus yesterday, the Court's refusal to hear this appeal has effectively ended the six year battle fought by the property owners to preserve their private property rights and retain ownership of their land.

Mr. Bagli quotes lead Plaintiff/property owner, Nick Sprayregen, in his article.

In all likelihood, Mr. Sprayregen said Monday, the battle is over. “The Supreme Court let stand an abuse of eminent domain taking place in New York,” he said. “We had hoped for a different result. This is truly a dark day for all Americans who care about the sanctity of private property rights.”

For more about this case see our previous posts here and here. See also Norman Oder's post announcing the Court's denial of certiorari at the Atlantic Yards Report; a post by Robert Thomas with links to previous discussions and all briefs filed in the case at inversecondemnation.com; and New Jersey Condemnation Law blog on the Court's refusal to grant cert.

[Disclosure: Robert Thomas is the OCA Hawaii Member. The New Jersey Condemnation Law blog is managed by McKirdy & Riskin, Edward McKirdy is the OCA New Jersey Member.]

Property owner in Columbia expansion case likens the use of eminent domain to "highway robbery"

Nick Sprayregen, owner of Tuck It Away, the lead plaintiff in the Columbia eminent domain case on petition for certiorari to the Supreme Court, explains in the Youtube video above how New York state's eminent domain procedures favor the condemnors and deny property owners due process of law.

Earlier this week Mr. Sprayregen wrote why the Court should grant cert in the Huffington Post. Here's an excerpt:

I am asking the court to take specific action and stop the taking through eminent domain of my property by an unelected agency of the state of New York merely to give it to a politically powerful private entity. If I am unsuccessful, the fate of my family business could be the fate of your home, your family business or any other property you and your family own.

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It is my belief that our highest court should take this case and show that the judiciary needs to protect the rights of all citizens against the tyranny that results from the collusion between executive and legislative branches of our government with favored private entities. It is exactly this responsibility that formed the basis of the checks and balances as laid out in our constitution. Nowadays, courts routinely abdicate their constitutionally mandated responsibilities and merely rubber stamp back-room deals made between our government and favored clients on the grounds that they must defer to decisions made by the other branches of our government.

As envisioned in our constitution, eminent domain is supposed to be for public uses -- projects the public will own and use -- such as a road or a post office. Eminent domain is not for private institutions like Columbia to expand their profit-making efforts beyond what the free market would allow. I believe that what Columbia has been trying to do is illegal, and I hope our highest court will agree. However, regardless of the outcome of my case, I know that what Columbia and New York have done to the people of West Harlem is unfair and un-American.

Another video to watch concerning the Columbia University eminent domain case and the New York State Appellate Court hearing (the Court that found in favor of the owners before NY's highest court overturned) is posted on Youtube here.

Columbia eminent domain case: One of the Supreme Court "Petitions to Watch"

SCOTUSblog has included the Columbia University eminent domain case Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation, Docket 10-402 in this week's edition of "Petitions to Watch." The petition for certiorari filed by these Harlem property owners will be included among the many the Court will consider when the Justices conference tomorrow, December 10. The Justices' decisions to grant or deny will be released on Monday, December 13.

This case concerns the proposed expansion of Columbia University into a Harlem neighborhood by way of the Empire State Development Corporation (ESDC), the same agency that enabled Forest City Ratner to take private homes and businesses for the Atlantic Yards arena and multi-use redevelopment. In New York, the ESDC is a governmental agency with the power of eminent domain. Similar to the Atlantic Yards case, the property owners in the Columbia expansion have disputed the ESDC's blight study and findings that their properties are blighted. Additionally, the property owners in the Columbia case presented evidence of pretext in the record on the part of the condemnors (ESDC and Columbia), which was considered by the Appellate Division and that court struck down the taking. On appeal, the NY Court of Appeals (the state's highest court) held that judicial review of the record in the exercise of eminent domain was improper, and that the question of whether property can be taken because it is found to be "substandard or insanitary" is a one for the taking agencies rather than the courts.

The property owners' petition for certiorari poses two Questions Presented:

This Petition should be granted to address two urgent questions arising from the Court of Appeals of New York's dismissal of Petitioners' challenge to the legitimacy of the governmental takings at issue in this case:

1. Whether it was error for the Court of Appeals of New York to disregard the principles enunciated in Kelo v. City of New London, 545 U.S. 469 (2005) in sanctioning the use of eminent domain for the benefit of a private developer, when the circumstances presented by the instant case exemplify the very bad faith, pretext, and favoritism that this Court warned could result if Kelo's safeguards were ignored?

2. Whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States imposes any minimum procedural standards, in accordance with the requirement of fundamental fairness, to preserve a property owner's meaningful opportunity to be heard within the context of an eminent domain taking?

On his Atlantic Yards Report blog, Journalist Norman Oder has provided a bit of history of the Columbia case as well as presented a detailed summary and analysis of the issues. Additionally,
Robert Thomas has posted the cert petition and subsequent briefs on his inversecondemnation blog here. Both blogs are recommended reading. [Disclosure: Robert Thomas is the Hawaii Member of the Owners' Counsel of America.]

More on Monday when the Conference results are released.

Hawaii ICA: Oral arguments in Leone v. County of Maui property rights case

Yesterday, eminent domain and land use attorney, Robert Thomas, live blogged the oral arguments held before the Hawaii Intermediate Court of Appeals on a closely watched takings case in Hawaii. Robert, along with his Damon Key colleagues Mark Murakami and Rebecca Copeland, provided live commentary and background while simultaneously following the arguments. If you missed the live blog yesterday, you can replay the commentary, review the issues surrounding the case and read all of the briefs filed on Robert's inversecondemnation blog here. [Disclosure: Robert Thomas is the Hawaii Member of Owners' Counsel of America. Robert also filed an amicus brief on behalf of the Pacific Legal Foundation in support of the property owner.]

This case involves a federal regulatory takings claim and also concerns the issue of ripeness under Williamson Planning Comm'n v. Hamilton Bank (U.S. 1985). Borrowing from Robert's post yesterday: "Leone v. County of Maui, No. 2969 is a case that has U.S. Supreme Court potential if the Hawaii courts don't get it right and is definitely one to watch. In that case, Maui beachfront property owners' federal regulatory takings claims were dismissed by a state trial court because the court concluded the property owners had not exhausted their administrative remedies." In short, what must a landowner with a taking claim do before he may have his day in court?

A ruling is expected early next year and we'll be watching for it.

Connecticut Bar Association: 5th Annual Property Rights Seminar this week

On Wednesday, the Connecticut Bar Association will hold the Fifth Annual Property Rights Seminar: Update on Eminent Domain and Regulatory Takings at the Connecticut Bar Association Law Center in New Britain, CT.

The chair of this full-day CLE program is Dwight H. Merriam, FAICP, CRE, of Robinson & Cole LLP, in Hartford. The seminar's focus is practical and theoretical, with "take-home" value for practitioners who need the basics or wish to advance to the next level. The following program faculty will speak throughout the day:

Timothy Barnes, CRE, Cushman & Wakefield, Inc., New York, NY
Mark K. Branse, Branse Willis & Knapp LLC, Glastonbury
Joseph L. Clasen, Robinson & Cole LLP, Stamford
William H. Clendenen, Clendenen & Shea LLC, New Haven
Robert A. Fuller, Law Offices of Robert A. Fuller, Wilton
David S. Hardy, Carmody & Torrance LLP, New Haven
Timothy S. Hollister, Shipman & Goodwin LLP, Hartford
Wesley W. Horton, Horton Shields & Knox PC, Hartford
Robert T. Morrin, Law Office of Robert T. Morrin, New Britain
Robert S. Poliner, Law Office of Robert S. Poliner, Durham (former CT Ombudsman for Property Rights)
Brian R. Smith, Robinson & Cole LLP, Hartford
Benson A. Snaider, Law Office of Benson A. Snaider PC, New Haven


The program will address the recent developments in regulatory and eminent domain takings on both the state and national level. Sessions will focus on a variety of condemnation and regulatory takings issues including the recent U.S. Supreme Court decision in Stop the Beach Renourishment v. Florida Dept. of Environmental Protection as well as the jury verdict and subsequent appellate court and Connecticut Supreme Court decisions in the Branford takings cases.

Register online here.

Justice Sandra Day O'Connor will be honored with the 2011 Brigham-Kanner Property Rights Prize

William & Mary Law School has announced that Justice Sandra Day O'Connor will receive the 2011 Brigham-Kanner Property Rights Prize at the 8th annual Brigham-Kanner Property Rights conference, scheduled for October 14-15, 2011 in Beijing. The 2011 conference is co-sponsored by Tsinghua University School of Law and will take place during the university's 100th anniversary celebration. The faculty of Tsinghua University School of Law includes many of China's most noted scholars. Its distinguished graduates include Judges Tieya Wang and Ruao Mei, and Justice Duanmu Zheng of the Supreme People's Court.

Justice O'Connor served as an associate justice of the United States Supreme Court from 1981 to 2006. She became Chancellor of the College of William & Mary following her retirement from the judiciary. In May 2010, the William & Mary Law School faculty awarded her its highest honor, the Marshall-Wythe Medallion, in recognition of her exceptional accomplishments and leadership.

Justice O'Connor will be joined in Beijing by all seven previous recipients of the Brigham-Kanner Property Rights Prize will participate in the 8th annual conference in Beijing. The past recipients include: Professor Frank I. Michelman, Harvard Law School (2004), Professor Richard A. Epstein, University of Chicago Law School (2005), Professor James W. Ely, Jr., Vanderbilt Law School (2006), Professor Margaret Jane Radin, University of Michigan Law School (2007), Professor Robert C. Ellickson, Yale Law School (2008), and Professor Richard E. Pipes, Harvard University (2009) and Professor Carol M. Rose, University of Arizona James E. Rogers College of Law (2010). Additionally, it is expected that the eminent domain attorneys and property rights advocates after whom the prize has been named, Toby Prince Brigham and Gideon Kanner, will also attend this historical international conference in Beijing.

"I am delighted that Justice O'Connor will allow us to recognize her contributions to property law jurisprudence and that she has agreed to travel to Beijing to receive the award and to attend the conference," said William & Mary Law School Dean Davison M. Douglas. O'Connor's nomination in 1981 as the Supreme Court's first female justice, he said, ranked "among the momentous events in American history," and she was "one of the Court's most influential justices of the past half century."

More to come regarding the events, speakers and activities planned for the 2011 Brigham-Kanner Property Rights Conference. You may also contact the William & Mary Property Rights Project via the Office of Development and Alumni Affairs or (757) 221 - 3796 for additional details.