Real Estate & Property Law

Amicus Brief In Columbia Eminent Domain Case: What Level Of Scrutiny Does Kelo Require?

By Robert Thomas (inversecondemnation.com)

Our colleagues at the Pacific Legal Foundation have filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia "blight" case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is "substandard or insanitary" is a question for taking agencies, not courts. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate Division concluded that the taking was not valid.

As we noted in several posts criticizing the Court of Appeals' decision (see here and here) and in a post lauding the Appellate Division's decision, "in other words, 'blight' is whatever the agency says it is. Just drum up a 'study' or two, and you're insulated from judicial review."

The PLF brief addresses a single Question Presented:

Under what circumstances does the higher scrutiny described in Justice Kennedy?s concurring opinion in Kelo v. City of New London, 545 U.S. 469 (2005), apply, and what does such scrutiny encompass?

The brief points out that the Kelo majority opinion -- and Justice Kennedy's concurring opinion (which provided the fifth and conclusive vote) -- requires that trial courts take seriously allegations that the condemnor's claimed reason for a taking is not the actual reason. The brief notes that several courts, including most notably the courts of New York, have not paid heed to Kelo's "authorization of heightened scrutiny." Br. at 6-11. Even those courts that adhere to Kelo's mandate have been "inconsistent" in what level of judicial scrutiny to apply, resulting in confusion and disarray in the lower courts. [Disclosure: my Damon Key colleagues and I represent the property owners in County of Hawaii v. C & J Coupe Family Ltd. P?ship, 198 P.3d 615 (Haw. 2008), a case discussed in the PLF brief and the cert petition].

Download the PLF brief here.

The Court's docket report is here.

Full post as published by inversecondemnation on October 24, 2010 (boomark / email).