Real Estate & Property Law

Yale Law Journal: Eminent Domain Due Process

By Robert Thomas (inversecondemnation.com)

A new article worth reading: Eminent Domain Due Process, 119 Yale L. J. 1280 (2010) by D. Zachary Hudson. Here's the abstract:

This Note analyzes the apparent disconnect between eminent domain doctrine and due process doctrine. Following Kelo, numerous states have reformed their eminent domain laws in an effort to ensure that the takings power is not abused. Whatever one makes of these legislative reforms, at an absolute minimum, the Due Process Clause should guarantee that landowners receive notice and an opportunity for some sort of judicial determination of the legality of the taking before the land is actually taken. After cataloging existing eminent domain laws, this Note traces the evolution of these laws over time in both the legislatures and the courts. In parallel, this Note analyzes the evolving circumstances driving the judicial perception of eminent domain. Examining these facts, the Note explains why courts have failed to rein in the eminent domain power with procedural protections. After establishing the appropriateness of applying modern due process principles to eminent domain actions, the focus of the inquiry shifts to what procedural due process demands. This colloquy explains what process is due, what the content and form of that process should be, and the likely effects of recognizing due process rights in the eminent domain context.

The article cites one of my home jurisdictions (Hawaii) as taking a "middle course" by providing "some process" before the taking:

Several other states require notice by statute prior to allowing the exercise of eminent domain authority, but do not specifically afford any form of precondemnation judicial process. Under Hawaii law, for example, a taking can be accomplished by a simple filing with the court, but the condemnor must also provide notice to the owner of the property it seeks to condemn. There is no specific judicial proceeding provided for under this statute, but by ensuring notice to the property owner, the statute at least gives the individual the opportunity to attempt to insert herself in the process by seeking an injunction or pursuing some other equitable remedy.

119 Yale L. J. at 1289 (citing Haw. Rev. Stat. § 101-28 (2006)).

Thanks to my colleague Dwight Merriam for the heads up on this article.

Full post as published by inversecondemnation on May 12, 2010 (boomark / email).