As you all know, we usually blog about eminent domain cases in New York. Sometimes we even take a virtual trip to another State to hear what’s going on “in their eminent domain neck of the woods”. But we have to say that this is the first time that we’ve taken a look over international waters. So here goes.
This past week, in mid-June of 2020, the Israeli Supreme Court of Israel issued a major ruling barring expropriation of privately-owned Palestinian land on the West Bank for transfer to Jewish settlers. The Israeli law from 2017 allowed for the retroactive legalization of thousands of Jewish homes built on occupied West Bank land privately owned by Palestinian.
The law is considered so provocative that few in Israel (and probably other places), believed that it would survive judicial review when it was passed. The law paved the way for the appropriation of Palestinian-owned land in the West Bank on which nearly 4,000 homes had been built, both in authorized settlements and in illegal Jewish outposts. Sounds like the eminent domain process we all know and love.
The news of Israeli settlements is hardly new (and is already controversial as to its legality under international law), since the settlements were built in occupied territory. Pursuant to the recent ruling of the Israeli Supreme Court, the homes built in those settlements will still remain illegal under Israeli law. Accordingly, Palestinian landowners will be able to proceed with lawsuits seeking to evict the people living in them and to recover their property.
Are there similarities to US eminent domain laws? We can argue that, yes, there are. But there are differences to be noted. In the USA, the government must show that the taking of the property in question has a public use. Allowable public uses range from the construction of highways and schools to the elimination of urban blight, in order to promote economic development.
In the Israeli case, the Court concluded that the Israeli appropriations were much more clearly intended to simply benefit one social "group" (Jewish settlers) by taking land from another (Palestinian Arab property owners).
Did the Israeli Supreme Court need to be guided by US rulings with its own decisions? It’s an interesting point. Actually, this is not unusual. The Israeli Supreme Court (and high courts in Canada and many European countries) often cite and rely on US and other foreign constitutional law decisions as the Israeli court did in this case.
It will be extremely interesting to see how this case proceeds. After all, this strengthens the case of private property law with Palestinians which can be seen as somewhat unusual. Many argue that property protection is important for enhancing individual liberty, protecting the rights of vulnerable minority groups, and promoting economic development. Interestingly, Jews have a long history of being victimized by unjust property appropriations at the hands of both European and Arab Muslim governments.
With the topic of settlements in Israel being in the news year after year, it will certainly be interesting to see how it all develops, and how closely the Israeli Court relies on eminent domain rulings in the USA.
The effects of the COVID-19 pandemic seem to reach further and further with each passing day. We are deeply saddened to hear about the continued deaths, while feeling hopeful about the slowing number of losses and cases.
Real estate challenges are still in full swing with landlords suing to halt the eviction moratorium. In Westchester County, a group of landlords filed a lawsuit claiming that Governor Andrew Cuomo’s eviction moratorium is unconstitutional.
According to reports, the federal suit by eight apartment building owners in Yonkers, Port Chester and Elmsford say the order halting evictions through Aug. 20 deprived them of their sole source of income. The plaintiffs own more than 100 rental units and are seeking to get the security deposits back, claiming that they are needed to guard against damage that tenants can cause.
The landlords claim that the order swayed tenants who could pay rent that they didn’t need to do so during the pandemic. The tenants were allowed to use their security deposit to pay rent, which violates their leases. The landlords are also frustrated that they are still required to pay their mortgages and property taxes.
Feeling that landlords are not protected, several have threatened to withhold their property taxes and have called upon the city to freeze property taxes, slash late fees and allow monthly payment plans. There has also been a request to halt increases to the property tax rate or increases to assessments.
Not all eviction hearings are stopping. Housing Court began scheduling conferences for evictions last week for pre-pandemic cases.
State lawmakers have approved a moratorium on evictions for the remainder of the Covid-19 emergency. The legislation prohibits residential evictions for non-payment of rent by tenants who have endured financial hardship between March 7 and an unknown future date. It’s important to note that the legislation does not cancel rent, but indefinitely removes the main leverage landlords have to collect rent. Tenants would have to document their hardship.
We will certainly be keeping an eye on these events. Socially distanced, of course.
Hold on to your cowboy hats, a high-speed rail is coming! Checking out the latest eminent domain news across the country, we read about a Texas appellate court allowing eminent domain for a high-speed rail project.
In early May, Texas Central Railroad & Infrastructure (TCRI), the company planning to build a high-speed train from Dallas to Houston, had a ruling in its favor by the 13th Texas Court of Appeals. The court ruled that the project can exercise the power of eminent domain because it qualifies as a railroad under Texas law.
Carlos Aguilar, the CEO of Texas Central, was of course pleased with the decision, saying, “This decision confirms our status as an operating railroad and allows us to continue moving forward with our permitting process and all of our other design, engineering, and land acquisition efforts.” The plaintiffs are expected to appeal the ruling to the Texas Supreme Court.
As we have heard time and time again, the property owners are not pleased. (Hope they have a good legal team!) Leon County landowners Jim and Barbara Miles sued the railroad and they are refusing access to survey their land as part of its effort to determine the route for the rail project.
Interesting to us was that the Miles family argued that TCRI is not a railroad under the Transportation Code definition. The Texas Transportation Code Sec. 112.053 grants that right to a railroad company, allowing railroads entry onto private property for the purpose of selecting the “most advantageous route for its railroad.” The Texas Constitution in Article I, Section 17 allows for the taking of private property with adequate compensation by an entity that is granted the right of eminent domain by Texas law. Opponents to the high-speed rail project are also concerned about such issues as its effect on private property rights and impact on the environment.
87th Judicial District Judge Deborah Evans granted a summary judgement motion to the plaintiffs last year stating that TCRI was not a railroad or interurban electric railway and thus did not have the power of eminent domain nor the attendant right to survey land.
In the Court of Appeals, Judge Nora Longoria, in her opinion for, wrote that TCRI is a railroad company under Title 5 of the Transportation Code because it is an “enterprise created and operated to carry passengers, freight, or both on a fixed track.”
Even though TCRI has yet to lay tracks or carry passengers or freight, it has taken many necessary steps “to be able to create and operate a railroad in the future,” like coordinating with regulatory agencies, conducting land surveys, and entering into purchase agreements. The Court also found that TCRI qualifies as an interurban electric railway under the Texas Transportation Code.
On the surface, at least for some of us, it might seem like semantics. Railroad or high-speed rail, it’s doing the same job. Right? Not quite. Plaintiffs argued that the legislature never intended high-speed railways, like Texas Central, to fall under the definition of “interurban electric railway” because it passed an entirely separate section of law concerning high-speed rail (HSRA), an act that has now been repealed.
This new rail seems pretty impressive with Texas Central Railway anticipating a 90-minute travel time between Dallas and Houston at speeds over 200 miles per hour. According to Texas Central’s website, the Dallas station will be in the Cedars neighborhood south of downtown. In Houston, the station will be in northwest Houston between I-10 and 290. One stop is planned in Grimes County that will include a direct shuttle to Texas A&M University.
According to the railroad company, the project will create 10,000 jobs during construction and 1,500 permanent jobs.
You know that we always like to chat about the dollars involved and here goes. Texas Central projects the cost of the project at $12 billion, but some estimates have the cost of the project closer to $30 billion. The project is currently funded by private investors, and the company’s website says it “will not seek grants from the US Government or the State of Texas, nor any operational subsidy once operation begins.”
Let’s see how this eminent domain news moves along. We’ll be sure to “track” it!