PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Thursday, April 15, 2010

Is that Property which the Law Declares to be Property?

In response to Virginia's celebration of confederate history month, and in connection with teaching takings this week, yesterday I had my property class read Henry Clay's argument against the emancipation of humans held as slaves.  Clay's argument was that if emancipation were to occur, it would constitute a taking, and thus was impermissible under the 5th Amendment without just compensation.  Since the government was not prepared to provide such compensation, emancipation would be an illegal and unconstitutional act.

Anticipating the rejoinder that there could be no taking if the thing taken were not property, Clay said, "That is property which the law declares to be property."  For at least 200 years, he said, both before and after the ratification of the Constitution, humans of African descent had been recognized as private property.  They were not just uncompensated labor; they could be alienated, possessed exclusively, and used like other forms of private property, including as security for debt.  Generations had relied on the law, and the law told them that slaves were property. 

Now, I was not about to ask first-year law students to argue the position that the emanicpation of slaves without full compensation of their former owners was a  legally wrong, unconstitutional act.  So, I took that position (and, in case there is any misunderstanding here, I'll say now what I said to my class: of course I don't think emancipation was wrong, and I'll kick the @*&%$ of anyone who says otherwise).  I then told my class to explain, if they thought I was wrong, why.

I made them focus on whether slaves had ever really been property, as the law had said they were.  I did not let them argue too long that the emancipation was not a taking (in the sense that it was merely a regulation that didn't go 'far enough'), or that compensation had already been provided through the slave's labor.  There are good arguments for those positions, perhaps, but they also allow us to dodge Clay's provocative claim.  So I insisted they tell me: is that property which the law declares to be property?   

It was a fascinating discussion, particularly in light of the typical skepticism with which my students had regarded the idea of unenumerated rights the week before when discussing zoning.  I'm as skeptical of 'natural law' as the next product of the Enlightenment, and yet . . . . try as we might, we just could not accept that humans had ever legitimately been property simply because the law had declared it.  But if that's true, then what is the source of authority that says otherwise?  Something greater than the Constitution?  And if we say yes, aren't we acknowledging and defending the existence of unenumerated rights, whether implied in the Constitution or not?  Isn't that the essence (so to speak) of natural law?

Regardless, it was a fascinating exercise, and one I highly recommend for your property classes.

Mark Edwards

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April 15, 2010 in Property in the Human Body, Property Theory, Takings, Teaching | Permalink | Comments (4) | TrackBack (0)

Tuesday, April 13, 2010

Neighbors v. Neighbors in New Jersey Beach Renourishment Dispute

The AP has a great story about a controversy brewing in Long Beach Island, New Jersey.  The beach is eroding, placing some beachfront homes at risk and endangering the community’s main recreational attraction.  But renourishment of the beaches would create dunes that would block some beachfront owners’ views of the beach.  When a nearby town used eminent domain to take an easement from some holdouts, the trial court gave a huge compensation award to the property owners.  So now the mayor and town officials of Long Beach Island are encouraging people to convince, and perhaps harass, their neighbors who are holding out.

Ben Barros

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April 13, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Friday, April 9, 2010

Supreme Court Denies Cert in Marshall Islands Takings Case

Earlier this week, the Supreme Court denied a petition for certiorari filed by Marshall Islanders seeking to reverse a 2009 ruling of the Federal Circuit.  The case has a fascinating factual context and raises interesting questions about the relationship between the Takings Clause and sovereign immunity.

As explained here by the WSJ Law Blog, the litigation was based on damages resulting from U.S. nuclear testing in the Marshall Islands in the 1940s and 1950s.  In the early 1980s, groups representing descendants of the Bikini and Enewetak Atolls sued the federal government for just compensation, asserting that the destruction of land occassioned by the testing constituted a taking of property under the Fifth Amendment.  During the course of this litigaiton, the United States and Marshall Island governments entered a Compact of Free Association, subsequently adopted by Congress, that purported to settle the takings claims.  In exchange for the United States' acceptance of responsibility and the establishment of a tribunal to administer the just compensation claims, the Marshall Islands agreed to settle all past, present, and future claims based on the testing.  Additionally, the compact documents provided that no United States court would have jurisdiction to entertain such claims.

The tribunal subsequently awarded a total of $949,210,000 to the plaintiffs, even though Congress only appropriated $45,750,000 for payment of awards.  See People of Bikini v. United States, 554 F.3d 996, 998 (Fed. Cir. 2009).  To date, less than 1% of the tribunal's award has been paid, and only $1,000,000 remains in the claims fund.  See id.  In 2006, the plaintiffs again brought suit, asserting that they still had not received just compensation for the takings of their property.  In 2009, the Federal Circuit affirmed a decision of the Court of Federal Claims to dismiss the suit, holding that the claims had been waived by the plaintiffs and that the federal courts had been stripped of jurisdiction to hear them in any event.

The cert briefs, which can be found on SCOTUSBlog (scroll to the bottom of the page), raise interesting issues concerning the Tucker Act, sovereign immunity, and the "self-executing" nature of the Takings Clause (for those who like that sort of stuff).

Mike Kent

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April 9, 2010 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 8, 2010

The General Average and Necessity

Over at CoOp, Gerard Magliocca has an interesting post comparing the maritime doctrine of general average, where some compensation is owed to people whose property is destroyed to save a ship, and the property doctrine of necessity, which holds that no compensation is due when, for example, property is destroyed to prevent the spread of a fire.

Ben Barros

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April 8, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Friday, April 2, 2010

Bell and Parchomovsky on Takings Compensation

Abraham Bell (San Diego) and Gideon Parchomovsky (Penn) have posted The Hidden Function of Takings Compensation on SSRN.  Here's the abstract:

To date, scholars have justified the constitutional mandate to pay compensation for takings of property on the intuitively appealing grounds that fairness demands recompensing aggrieved owners; on the basis of a belief that government that fails to pay will suffer from “fiscal illusion” and take excessively; or due to the need to neutralize politically powerful property owners who would otherwise foil socially beneficial projects.

This Essay offers a new explanation of the role of takings compensation in ensuring good government. Inspired by public choice theory, we argue that takings compensation reduces the incentives for corruption by limiting corrupt politicians’ ability to profit from takings. Specifically, we show that mandating compensation reduces the funds self-serving politicians can extort from property owners. At the same time, mandating compensation permits publicly-oriented politicians to continue pursuing socially beneficial projects.

This explanation yields important insights into the optimal structure of takings compensation. First, current incentives to use eminent domain excessively in the service of private developers cannot be blunted by modifying compensation policy. Only by a separate policy that charges developers for the benefits they receive can reduce or eliminate such misuse of the taking power. Second, overcompensation is even worse than under-compensation insofar as corruption is concerned. For this reason, laws requiring the payment of fixed percentage bonus above market value to property condemnees are in error. Additionally, where judges are thought systematically to overrate the subjective value owners attach to their properties, market value compensation may have some merit. Third, public compensation cannot be replaced by a private insurance system, even if such insurance were practical, since insurance too would encourage corruption.

Ben Barros

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April 2, 2010 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, April 1, 2010

Blumm and Ruhl on Background Principles and Takings Law

Michael C. Blumm (Lewis & Clark) and J. B. Ruhl (Florida State) have posted Background Principles, Takings, and Libertarian Property: A Response to Professor Huffman on SSRN.  Here's the abstract:

One of the principal, if unexpected, results of the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission is the rise of background principles of property and nuisance law as a categorical defense to takings claims. Our writings on the background principles defense have provoked Professor Huffman, a devoted advocate for an expanded use of regulatory takings to protect landowner development rights, to mistakenly charge us with arguing for the use of common law principles to circumvent the rule of law, Supreme Court intent, and the takings clause. Actually, ours was not a normative brief at all, but instead a positivistic explanation of takings cases in the lower courts since Lucas, which include judicial recognition of statutory background principles. In this article, we respond to Huffman, examining the continuing importance of the background principles defense and explaining the trouble with his vision of libertarian property and his peculiar notion of the rule of law. We focus especially on wetlands regulation, which Huffman thinks is a recent development when in fact its origins date to medieval England, and therefore is particularly suited to the background principles defense. We conclude that background principles, as "the logically antecedent inquiry" into the nature of a claimant's property interest, are now a permanent feature of the takings landscape.

Ben Barros

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April 1, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Is Federal Land Subject to State Eminent Domain Power?

Several weeks ago, one of my students (hat tip: Emily Pabalan) forwarded an article about a bill pending in the Utah legislature that would authorize the state to condemn certain parcels owned by the federal government.  According to this AP story in yesterday's Washington Post, the legislation apparently has passed both chambers and been signed by the governor.  I was going to post a few thoughts, only to discover that I've been beaten to the punch both by Stephen Bainbridge and Eugene Volokh.

Like Professor Volokh, my initial reaction is that this use of eminent domain will be ruled unconstitutional under an analogy to M'Culloch v. Maryland.  If a state can't tax a federal bank, then it seems difficult to conceive that it could condemn federal property.  And this analogy raises an issue that I find both interesting and important -- i.e., the relationship between the taxing power and the eminent domain power.  As I point out in a forthcoming article in the William and Mary Law Review (see SSRN version here, pp. 28-31) taxes and takings share several theoretical characteristics but are almost always treated separately as a doctrinal matter.  Although some scholars (notably, Richard Epstein, Eric Kades, and Eduardo Peñalver) have tackled how these two powers should inform each other, I think there is probably a lot more to say.  Maybe the litigation that (inevitably) ensues from the Utah statute will help answer some of the questions.

Mike Kent

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March 29, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Understanding the Conflict Behind Stop The Beach

Today's NY Times Magazine has a fantastic story by Andrew Rice about the conflicts in Destin, Florida that led to the Stop The Beach Renourishment case now before the Supreme Court.  (We've blogged before about Stop The Beach Renourishment, especially here and here.)  I talked at some length with the reporter, and learned a lot from our conversation.  I learned even more from reading the article.  Great stuff.

Ben Barros

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March 21, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, March 14, 2010

Mahoney on the Tension Between Positive and Negative Rights in Eminent Domain

Bran Frederick Mahoney, a student at George Mason, has posted The Greater Good or Property Rights? Resolving the Tension between Positive and Negative Rights in Eminent Domain on SSRN.  Here's the abstract:

This paper examines the background of takings law and differing philosophical viewpoints on individual rights. It then analyzes the balance of rights in the present use of eminent domain, and proposes solutions to current problems with eminent domain and the possible impact of these solutions on the balance of positive and negative rights.

Special attention is given to the status of blight and economic takings after Kelo v. City of New London, and what the jurisprudence in this area means for the balance of rights in the nation as a whole.

Ben Barros

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March 14, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, March 11, 2010

Gaba on Locke and the Takings Clause

Jeffrey M. Gaba (SMU) has posted John Locke and the Meaning of the Takings Clause on SSRN.  Here's the abstract:

John Locke, political philosopher and all around polymath, stands as a central figure in the development of Western conceptions of property rights and democratic institutions. If not the sole voice that is echoed in the American revolution and the Constitutional Convention, he clearly influenced the founders, particularly James Madison, and he thus represents an intellectual force that is a legitimate part of the current debate over the relationship between government power and individual property rights.

The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the Two Treatises that provides a coherent picture of the limits of government authority over private property. Part I is an introduction to John Locke and the Two Treatises of Government. Part II addresses Locke's justifications for acquisition of private property in a pre-government “State of Nature” and the constraints on property reflected in a series of Lockean “provisos.” Robert Nozick in Anarchy, State and Utopia, has suggested that the “historical shadow” of Locke's provisos can have contemporary significance. Nozick is correct to suggest the continuing significance of the Lockean provisos, but incorrect in his assessment of application of the provisos. This article argues that only a Lockean “sustenance” proviso forms the basis of contemporary limitations on private property.

Part III deals with the central question of Locke's views on the scope of government authority over private property. Although Locke advocated a broad scope of government authority, he can be seen to have recognized a series of limitations on the exercise of this government power. One set of constraints arose from his view that government could not adopt “arbitrary” laws that did not serve the public good. Of equal significance is a constraint that rises from Locke's conception of the social contract. He can be read to argue that government can not regulate private property in ways that would place people in a worse condition than they would be in a pre-government State of Nature. Contract and game theory suggest some implications of this view, and the result is a weak set of “Lockean rights.” Government interference with those Lockean rights would require compensation under the Takings Clause. Beyond that, Locke suggested that democratic institutions are the proper check on interference with property rights. Part IV considers the implications of Locke's views for the contemporary Takings debate. In surprising ways, Locke's views mirror, in important ways, the outcome of the ad hoc approach to the Takings Clause employed by the Supreme Court.

Ben Barros

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March 11, 2010 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

Eminent Domain Battle in Virginia

Fox News reported yesterday about an eminent domain battle in Virginia over the amount properly awarded in just compensation.  The city that condemned the property offered approximately $20 million, but the landowner claims he received market offers for more than twice that amount prior to the condemnation.  In addition to the differing numbers, though, the story raises the larger question of whether property owners are truly made whole by awards limited to fair market value only.  Finally, the story reveals an interesting fact that I did not know -- in Virginia, jurors in an eminent domain case must be property owners.

Mike Kent

P.S.  Thanks to Stetson law student James Kannard for bringing the story to my attention.

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March 2, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Friday, February 26, 2010

New York and Blight Takings

At the City Journal, Nicole Gelinas has a good article on takings under New York's overbroad definition of blight.  Whether or not you favor this kind of economic development taking, doing it under a blight justification strikes me as completely dishonest.

H/T:  Ilya at the VC.

Ben Barros

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February 26, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Saturday, February 6, 2010

Ode to Centralia, Pennsylvania

The Associated Press ran an interesting story yesterday about the final days of Centralia, Pennsylvania, which has rested for decades above an intense, underground coal fire.  The federal government condemned the town in the 1980s and 1990s, but a hand few of holdouts have remained.  The state government now appears to be getting serious about removing them.  This story presents a lot of interesting property aspects -- from environmental concerns to eminent domain policy to the relationship between property, place and personal identity.  Interested readers can find a number of resources on Centralia here, although I can't vouch for any of them personally.

Mike Kent

P.S.  Thanks to Stetson Law student Emily Pabalan for bringing the story to my attention.

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February 6, 2010 in Natural Resources, Property Theory, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, February 1, 2010

Stevenson on IOLTA Takings Problems After Kelo

Drury D. Stevenson (South Texas) has posted IOLTA Problems in the Post-Kelo World on SSRN.  Here's the abstract:

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the “property interests” of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor: crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.

Ben Barros

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February 1, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 27, 2010

Kelo, the Meaning of "Public Use," and Beyond

A recent decision from the United States District Court for the Western District of Pennsylvania presents some interesting issues about the law of eminent domain.  In Whittaker v. County of Lawrence, 2009 WL 4744392 (Dec. 7, 2009), the plaintiffs challenged the condemnation of their parcels in connection with a proposed redevelopment project.  Specifically, the plaintiffs argued that the project – a 500-acre industrial park – was not a public use under the Takings Clause.  The district court rejected that argument, concluding that a local government’s economic revitalization efforts were “undoubtedly” public.

So far, all of this sounds familiar and in keeping with the Supreme Court’s decision in Kelo v. City of New London.  But here’s the twist – unlike Kelo, where the state courts interpreted the state statutes as allowing the economic development taking at issue, the state law here (as construed by the state courts) affirmatively declared that this type of use was not “public” for purposes of the eminent domain power.  Acknowledging this fact, the district court nonetheless held that the use was public for purposes of the Fifth Amendment.  Here’s the central portion of the opinion (omitting citations):

States are undoubtedly free to create “public use” standards that are more demanding than that contained in the Fifth Amendment.  Indeed, subsequent to the Supreme Court’s decision in Kelo, the Pennsylvania Legislature passed legislation generally prohibiting the use of eminent domain power for the purpose of facilitating “private enterprise.”  It does not follow, however, that actions taken in contravention of such state proscriptions are likewise taken in contravention of the Public Use Clause.  The content of the Public Use Clause does not “vary from place to place and from time to time.”  The “public use” requirement is “coterminous with the scope of a sovereign’s police powers.”  It does not change based on how a particular sovereign chooses to use (or not use) its police powers.  As far as the United States Constitution is concerned, a “public use” in Connecticut is a “public use” in Pennsylvania.  The Plaintiffs attempt to convert state statutory standards into federal constitutional requirements, “[b]ut constitutional law does not work that way.”

Whittaker, 2009 WL 4744392, at *18.

This is an interesting development, and one that I have wondered about since the Kelo decision came down.  Even though Justice Stevens’ majority opinion in Kelo admitted that states were free to impose stricter “public use” requirements than that announced by the Court, it also stated that the Court’s authority “extend[ed] only to determining whether the City’s proposed condemnations [were] for a ‘public use’ within the meaning of the Fifth Amendment to the Federal Constitution.”  Kelo, 545 U.S. at 489-90.  The district court in Whittaker apparently took this last statement to heart.

One potential ramification of the reasoning used in Whittaker could be that property owners increasingly look to state courts and state law claims (either constitutional or statutory) for relief from proposed condemnations of their properties, rather than proceeding under the Takings Clause.  But apart from that, there is another possible ramification:  If “public use” under the Takings Clause is a matter of federal law that is defined uniformly regardless of any state pronouncements, then one might also argue that “property” under the Takings Clause is equally a federal question subject to uniform definition.  In other words, perhaps there is some normative constitutional baseline that qualifies as “property,” beyond which the states cannot regulate without providing just compensation (regardless of their ability to regulate or define property interests in the first instance).

This latter argument has significant federalism implications, especially with regard to the question of judicial takings currently before the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection (about which Ben excellently blogged here and here).  If “property” as defined in the Takings Clause means the same in Connecticut as it does in Pennsylvania (to paraphrase Whittaker), then perhaps it becomes easier for a federal court to say that a state court decision has taken that “property” irrespective of the state’s ability to change or define property rights as a matter of state law.

Mike Kent

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January 27, 2010 in Recent Cases, Takings | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 20, 2010

Turnbull & Salvino on Eminent Domain and the Size of Government

Geoffrey K. Turnbull (Georgia State - Economics ) and Robert F. Salvino (Coastal Carolina - Economics) recently published their article, "Do Broader Eminent Domain Powers Increase Government Size?" in the Review of Law & Economics.  Here's the abstract:

The 2005 U.S. Supreme Court decision Kelo v. New London allows using eminent domain to transfer property from one private party to another when it serves a broadly defined public purpose such as economic development. This paper examines the effect of this doctrine on the size of state and local governments. In the leviathan model, constitutional constraints are needed to control government expansion. The Kelo decision removes one such constitutional constraint on how state and local governments gain command over privately owned resources. The empirical results show that the breadth of eminent domain power affects the size of the public sector; states that explicitly empower their local governments to use eminent domain for private economic development have larger state and local public sectors than those that do not.

Mike Kent

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January 20, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, December 21, 2009

Financing Problem With Atlantic Yards?

Amy Lavine of Albany Law's Government Law Center has uncovered an interesting issue regarding the bond financing for the Atlantic Yards project.  The Atlantic Yards Report has a detailed post on the issue.  Here's a taste:

The issue was unearthed by Amy Lavine, a staff attorney at the Albany Law School's Government Law Center who has been studying public authorities. (She has been advising Perkins on eminent domain issues as part of her job and also offered pro bono help in off-hours for Develop Don't Destroy Brooklyn.)

"We've been trying to reform public authorities for the last few years," Lavine explained, citing the legislature's recent--and finally successful efforts. "So it's really important that we control these entities and make sure they're acting in a transparent and accountable way."

Typically, public authorities have to get their bonds approved by the Public Authorities Control Board--the governor, Senate Majority Leader, and Assembly Speaker hold the controlling votes--and the state Comptroller.

The BALDC was authorized under § 1411 of the Not-For-Profit Corporation Law. The PACB approves the financing and construction of any project proposed by the ESDC or the sibling Job Development Authority, which created the BALDC.

(The BALDC is the Issuer in the chart at right, from the Barclays Center Arena Preliminary Official Statement prepared by Goldman Sachs. Click to enlarge.)

"ESDC apparently did not want to go through this process," she said, and thus it created the BALDC, to which it will lease the arena land. The BALDC in turn will lease the land to the private company that will manage the arena.

The ESDC, she said, does have the authority to issue bonds, but "by skirting the process that's supposed to be followed, it seems that the bonds may have been issued illegally."

"Basically, the LDC is not a public entity," she said. "And it's controlled by different sections of the tax code in New York State. Either ESDC didn't think of the implications of this or they didn't think anyone would notice, because it is rather esoteric. It seems that, under the tax section that applies to the LDC, they're not eligible for exemption from property taxes." (The LDC is subject to §420-a of the property tax code.)

According to the recent Court of Appeals decision in Lackawanna LDC v. Krakowski, the LDC leased property to a for-profit manufacturing company and the property was considered taxable, because manufacturing and economic development is not a tax-exempt purpose. Had the Legislature intended a blanket property tax exemption for LDCs, it would have done so expressly, as it has in other contexts, the court said.

And if they're not exempt from property taxes, she said, there's no way to divert property taxes to pay for the arena bonds, via PILOTs (payments in lieu of taxes), and so nothing backing the bonds.

"To go forward, I believe that the process has to start over and ESDC will have to do this properly and get it reviewed by the Public Authorities Control Board and the state Comptroller," she said.

And that means they'd have to review the financial merits of the bonds, which hasn't happened, she said.

Ben Barros

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December 21, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 16, 2009

Hamilton on the Unconstitutionality of RLUIPA

Marci A. Hamilton (Cardozo) has posted The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional on SSRN.  Here's the abstract:

The purpose of this Article is to bring to the forefront of discussion bedrock principles of land use law, which have been ignored to date, and to place RLUIPA analysis on a more constitutionally sound base. The Article is divided into three main sections. Section I recounts the history of land use principles from the drive to ordering urban centers in the seventeenth and eighteenth centuries to the development of the rich amalgam of modern practices that now constitute local land development and planning. Section II examines the Supreme Court’s constitutional doctrine of land use law and describes the federal laws that directly or incidentally affect local land uses and shows that these few are cabined within narrowly circumscribed arenas or in fields in which federal coordination of the states is necessary. These laws are readily distinguishable from the sweeping effect of RLUIPA on local land use determinations. Section III then looks closely at Section 2(a), to show how it impacts local decision-making, and operates as a radical and careless interference with settled constitutional principles. In addition, it points out that state courts have a history of rooting out invidious discrimination against religious landowners and invalidating discriminatory or arbitrary zoning and permitting decisions.

Ben Barros

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December 16, 2009 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Eminent Domain at the Play Table

Using eminent domain to take legos!  With real due process problems.

Ben Barros

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December 16, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Friday, December 4, 2009

New York Court Rejects Eminent Domain for Columbia Project

An intermediate appellate court in New York has rejected the use of eminent domain for a project associated with Columbia University.  The New York Times has a story on the case, and Ilya Somin comments at the VC.  There seems to be some conflict with the NY Court of Appeals' recent decision in the Atlantic Yards case.  Particularly because the intermediate appellate court's decision was 3-2, this case is quite likely to go up to the Court of Appeals.

Ben Barros

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December 4, 2009 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)