Real Estate & Property Law

University's Taking For "Athletic Village" Is For Public Use

By Robert Thomas (inversecondemnation.com)

In State ex rel. Bd. of Regents v. McCloskey Brothers, No. 105228 (Dec. 8, 2009), the Oklahoma Supreme Court held that Oklahoma State University can take property for creation of an "athletic village." Here's the entirety of the public use holding:

The landowner argues that the taking was not for a proper public purpose as required by the Oklahoma Const. art 2, §§ 23-2461 because the land was to be used as an "athletic village" instead of some use which would further the academic goals of the University. The Regents argue that the proposed use is a public use/public purpose. The question of whether a proposed taking is for a "public use" is a judicial question. Nevertheless, here, the Legislature has already expressly declared such use a public use by its enactment of 70 O.S. 2001 § 4001,63 in which the Regents are authorized to take land for the construction of, among other things, field houses, stadiums, and other revenue-producing buildings. The proposed "athletic village" fits squarely within this stated purpose and a review of the record reveals no other evidence which would convince us that the proposed use does not qualify for a public use/purpose.

Not much there on the public use front, but the thing that caught our eye about the opinion is that the Oklahoma Constitution apparently requires a majority of the OSU regents to be farmers. In addition to the public use challenge, the property owner objected to the taking on the basis that a majority of Board of Regents, the body which authorized the condemnation, were not farmers, and the court held that the remedy is not to invalidate the taking, but for the state to seek a writ of quo warranto. Thus, the property owner had no standing to challenge the composition of the Board of Regents in the condemnation action.

Full post as published by inversecondemnation on December 10, 2009 (boomark / email).