Schlimmbesserung:Eminent Domain for

Redevelopment

Robert H. Thomas

www.inversecondemnation.com

“To worsen by improvement”

public use?

Berman (1954)

Blight the baby with the bathwater

“when the legislature has spoken, the public interest has been declared in terms well-nigh

conclusive”

Berman, 384 U.S. 34-35

Midkiff (1984)

Eminent domain like zoning – just another land use tool

Kelo (2005)

“Economic development” might be a public use

Kelo dissenters (2005)

Economic development alone is never a public use

Kelo (2005)

pretext to hide private benefit is not “public use”

Kelo (2005)

“pretext” =

actual motive

Berman - unanimous

Kelo – 5-4

Midkiff - unanimous

“Kelo” = Abuse

“Kelo”

“Kelo”

= Incompetence

= Property Rights

Franco v. National Capital Revitalization Corp.

930 A.2d 160 (D.C. 2007)

County of Hawaii v. C&J Coupe Family Ltd Partnership

198 P.3d 615 (Haw. 2008)

208 P.3d 713 (Haw. 2009)

New York -

49 Wb, LLC v. Village of Haverstraw

516 F.3d 50 (2d Cir 2008)

cert. denied, 128 S. Ct. 2964 (2008)

Goldstein v. NY State Urban Dev Corp.

921 N.E.2d 164 (N.Y. 2009)

Goldstein v. Pataki

44 A.D.3d 226 (2007)

“[T]he record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City…and that the justification of underutilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals …have made plain that there is no longer any judicial oversight of eminent domain proceedings.”

Uptown Holdings, LLC v. City of New York,

No. 2882 (App. Div. Oct 12, 2010)

Tuck-it-Away v. N.Y. State Urban Development Corporation

…cert granted? denied?

Schlimmbesserung?

Schlimmbesserung?