New Law Review Article: Recent Developments in Public Use and Pretext in Eminent Domain

Each summer, The Urban Lawyer (the ABA’s Section of State and Local Government Law‘s peer-reviewed law review), devotes an issue to recent developments in various areas of law. A subscription is among the benefits of section membership. The Summer 2009 issue, which was just published, includes an article by Damon Key attorney Robert Thomas on recent developments in public use and pretext in eminent domain, which he has creatively titled Recent Developments in Public Use and Pretext in Eminent Domain (43 Urban Lawyer 563 (2009)).

If that’s not descriptive enough, here’s a summary of the article:

The Supreme Court’s controversial 5-4 decision in Kelo v. City of New London renewed both public and judicial interest in the contours of the public use requirement of the Fifth Amendment and its counterparts in state constitutions. Courts began to take a harder look at how the government’s claim that property is being condemned for a public use or purpose can be challenged by a landowner, and what degree of deference is owed by the courts to the government’s assertion. This article summarizes recent developments in public use and pretext litigation.

The decisions the article covers include the most significant cases handed down between 2007 and early 2009, and include County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. 2008); City of Stockton v. Marina Towers, L.L.C., 88 Cal. Rptr. 3d 909 (Cal. Ct. App. 2009); In re Condemnation by the Redev. Auth. of Lawrence County, 962 A.2d 1257 (Pa. Commw. Ct. 2008); Aspen Creek Estates, Ltd. v. Town of Brookhaven, 848 N.Y.S.2d 214 (N.Y. App. Div. 2007), aff’d, 2009 WL (N.Y. 2009); Middletown Township v. Lands of Stone, 939 A.2d 331 (Pa. 2007); and Goldstein v. Pataki, 516 F.3d 50 (2d Cir.), cert. denied, 128 S. Ct. 2964 (2008).

The article is available in pdf format here. If you’d like a hard copy reprint, send Robert an email.

The Summer 2009 issue of The Urban Lawyer also includes articles about recent developments in land use law, exactions and impact fees, RLUIPA, and other topics. If you are a member of the SLG Section look for it in the mail soon.