Daily Development for Monday, April 24, 1995

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

EMINENT DOMAIN; PUBLIC PURPOSE: Mississippi Supreme Court finds urban renewal through acquistion of property for transfer to a private redeveloper is not a valid purpose for exercise of eminent domain Morley v. Jackson Redevelopment Authority, 632 So.2d 1284 (Miss. 1994). This traditional view of the limited scope of the condemnation power is not followed in many other jurisdictions, who read their state common law tradition or state constitutional language differently. The court leaves the door open a crack by remanding the case for another try by the local condemning authority.

pparently slum clearance, in and of itself, may be an appropriate public purpose. In this case, however, it appeared to the court that the condeming agency had not met its burden to show that the primary purpose was slum clearance rather than facilitating development by a private developer other than the otwner. It suggests that if the facts demonstrate that it would be impossible for the owner to rehabilitate the property itself, then the court conceivably would approve a taking for purposes of selling the property to another. The case, incidentally, involves the historic and once elegant King Edward Hotel in Jackson, now primarily used, according to the court, as a bathroom for pigeons. Removal of pigeon droppings alone would exceed $117,000 in cost.

DIRT readers: Are you aware of recent decisions in your area similar to this one? States familiar to the editor generally seem to favor eminent domain powers for redevelopment through private enterprise.

EMINENT DOMAIN; PUBLIC PURPOSE; SCOPE OF POWER: In order to facilitate the sale of closed military bases, the Federal Government may condemn an access easement across adjacent property pursuant to the statute authorizing disposal of surplus property and other actions deemed "necessary or proper to dispose of such property." U.S. v. 1.33 Acres, 9 F.3d 70 (9th Cir., 1993).

EMINENT DOMAIN; PUBLIC PURPOSE; SCOPE OF POWER; HIGHWAYS:

In seeking land to support highway right-of-way construction the state can take no more property than public use requires even though condemnation is effected, in conjunction with federal statutes, to preserve certain archeological and historical sites, Mitton v. Wisconsin Dept. of Transp., 516 N.W.2d 709 (Wis. 1994). Landowners successfully overturned a state department of transportation (DOT)condemnation action involving 6.26 acres of their property. The DOT had argued that the Federal Highway Administration (FHWA) required that it minimize the effect of construction on the parcel since the land was a historic site containing Indian artifacts. The actual land to be used for the highway right-of-way was acknowledged to be 1.26 acres; however the FHWA approved the DOT's mitigation plan condemning the additional 5.0 acres despite the submission of less intrusive alternatives.

In evaluating the DOT's proposal, relative to certain federal statutory requirements involving historic sites, the court interpreted the statutes as lacking in justification for the DOT's plan. While requiring that consideration be given to minimizing the effect of the construction, the statutes could not be read to provide reasonable grounds for condemnation of more than necessary for the highway right-of-way. Allowing the DOT to act in the manner asserted was seen as giving them limitless authority and unfettered discretion to condemn at will, an idea certainly unsupportable by state or federal regulation.

Comment: Note that different public agencies may have different purposes to serve, and in some cases a very wide range of public benefit exists. See, e.g.: Sunrise Properties, Inc. v. Jamestown Urban Renewal Agency, 614 N.Y.S.2d 841 (App. Div. 1994) (Redevelopment agency condemnation provides public benefit by creating jobs, providing infrastructure stimulatation of new private sector economical development, even when agency will promptly retransfer condemned property to private developer.) Compare: Appeal of Commonwealth Department of Transportation, 636 A.2d 1241 (Pa.Cmwlth. 1994) (Highway department condemnation power may be used to condemn fee underlying easement land for purpose of making easement land easier to resell).

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.

ABOUT DIRT:

DIRT is an Internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 ‑ 10 messages per workday.

Daily Developments are posted every workday.

To subscribe to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Dirt [your name]

To cancel your subscription to Dirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Dirt

For information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses specifically upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named "Brokerdirt." But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as Brokerdirt carries all DIRT traffic in addition to the residential discussions.

To subscribe to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Subscribe Brokerdirt [your name]

To cancel your subscription to Brokerdirt, send an e-mail to:

To:	ListServ@listserv.umkc.edu
Subject:	[Does not matter]
Text in body of message	Signoff Brokerdirt

DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at: http://www.umkc.edu/dirt/