Two Eminent Domain Blogs to Watch

In 2011, the Eminent Domain Review was launched by Kevin E. Anderson of Anderson, Call & Wilkinson in Salt Lake City, Utah.  Kevin is the Utah Member of the Owners' Counsel of America and has been blogging about recent cases and issues related to eminent domain from the Utah state and federal courts.  Check out his posts relating to a recent case Utah Department of Transportation v. Admiral Beverage Corporation regarding damages for loss of visibility, the "Politics of Eminent Domain" and Just Compensation.

More recently, Michael F. Faherty, the the Owners' Counsel of America Pennsylvania Member launched the Eminent Domain PA blog.  Mike covers issues and developments affecting condemnation law in Pennsylvania, including posts about major projects that may affect property owners throughout the state.   Of particular interest are his posts the "Property Owner's Guide" and those relating to natural gas and Marcellus shale drilling.

Both blogs will be interesting to follow.

New Orleans Eminent Domain Attorney Secures More Than $9 Million Just Compensation for Private Property in Hospital Project Footprint

Randall A. Smith, the Louisiana Member of Owners' Counsel, recently secured a jury verdict of $9,566,640 as just compensation for the expropriation of property owned at 1732 Canal Street in downtown New Orleans.  The verdict awards the property owner more than double the $4.5 million originally paid by the state of Louisiana when it took the property using the power of eminent domain in 2010.  Now the state must pay more than $5 million plus interest to the owner and will also be taxed with paying the owner’s attorneys’ fees, experts’ fees and reasonable trial expenses.

Located at the corner of Canal Street and South Claiborne Avenue, the property is the site of the former Grand Palace Hotel originally constructed in the 1950’s to house both apartment units and commercial businesses.  The owner, a Washington D.C. developer, purchased the property in 2008 at auction with the intent of redeveloping the site.  The property was acquired by the Louisiana State University as part of the proposed 34-acre University Medical Center campus. 

The Times-Picayune reported: "We think this is a big deal," said New Orleans attorney Randy Smith, who represents Thoron, the Washington, D.C., development firm that owned 1732 Canal St. property. "I've got a dozen or so more of these heading to trial and this sets the standard."  

Prior to trial, Smith challenged the taking of his client's property as an illegal expropriation due to the fact that the most recent plans for the project indicate that the property will be used as green space rather than for public facilities.  He did not challenge the public purpose of the project itself rather the specific use for which his client's property would be put.  The state, in contrast, claimed that the land will be needed for a future expansion that has yet to be planned.  Unfortunately, both the trial and appellate courts rejected the owner’s challenge to the taking.  The jury, however, agreed with the owner regarding the property’s value finding that the state owed the additional $5,066,640 plus interest as just compensation.  

NYC Pulls Plug on Willets Point Eminent Domain

On the eve of a hearing before the New York Supreme Court, Appellate Division, the City of New York has withdrawn its eminent domain suit and halted efforts to acquire private property in the “Iron Triangle” of Willets Point, Queens.  The condemnation actions were scheduled for a hearing Monday at which time the property owners’ attorney, Michael Rikon, planned to contend that the City’s proposed takings for the $3 billion Willets Point redevelopment plan were neither for a public purpose nor conducted appropriately under requirements set forth in NY State’s Eminent Domain Procedure Law (EDPL), the New York State Constitution or the U.S. Constitution.    

[Disclosure: Michael Rikon is an eminent domain attorney in Manhattan and the New York Member of the Owners' Counsel of America. ]

According to The New York Observer, “There were a lot of things going against the city here, and in view of all that, I think someone made the executive decision that this was going against the city and would set a bad precedent for all future takings,” Michael Rikon told The Observer.

Mr. Rikon, an attorney for Willets Point United, a landowner group fighting the city, said that the city faced a tough case because of issues ranging from a failure to have translators at the eminent domain hearing (many property owners are Latino) to not providing notice in person and having no clear public use yet assigned (there was not yet a developer in place at the time of the hearing). “It’s strange, too, because rarely do you win these kinds of cases,” Mr. Rikon said of eminent domain defendants, “but I really think this could have been different.”

While NYC has confirmed that it has withdrawn the eminent domain case, a City spokesperson has indicated that the project continues to move ahead.

“We’re very close to having a deal in place that will transform Willets Point into New York City’s next great neighborhood and continue the historic progress we’ve already made there,” said Julie Wood, spokeswoman for Mayor Michael Bloomberg. “Today’s action ensures that our plan will comply with the site’s myriad technical and legal requirements.”

The City’s proposed public use is questionable and has been at the center of the property owners’ challenge against the use of eminent domain.  The alleged purpose of the redevelopment for which private property need be condemned is to “transform a largely underutilized site with substandard conditions and substantial environmental degradation into a lively, mixed use sustainable community and regional destination.”  The property owners, however, have argued that this proposed use is “no more than pure speculation, with no developer chosen or even having agreed to undertake this significant and costly project.”  

The withdrawal of the eminent domain suit does not preclude the City from attempting to use eminent domain in the future and may allow it to correct the mistakes and other procedural errors conducted over the last 3 years of this redevelopment project’s life.  As a matter of fact, The NY Times reports that the City “plans to submit a new set of findings, after the environmental review and the public review. Those, in turn, will almost certainly generate a new lawsuit opposing the project.”   The Times also noted that the City has now selected a developer for the first phase of the redevelopment plan, a joint venture of Related Companies and Sterling Equities, a real estate company owned by Fred Wilpon and Saul B. Katz, the owners of Citi Field and the Mets. 

There is certainly more to come in this story. But for now, we send our congratulations to Mike Rikon, the members of Willets Point United and the private property owners, businesses and individuals who will continue on in the “Iron Triangle.”

For more commentary visit our blogging colleagues at inversecondemnation, New Jersey Condemnation and Gideon’s Trumpet. 

SCOTUS Denies Review in NYC Just Compensation Case

This morning the Supreme Court issued its order listing, among other things, the cases which the court has decided it will or will not grant certiorari. Of those to be denied review is the eminent domain case of River Center LLC v. Dormitory Authority of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012) in which the constitutional guarantee of "just compensation" is at issue. 

This is the case that involves one of the largest condemnations of private property in NYC history - the taking of the unused development rights of an entire city block in Manhattan near Lincoln Center for the performing Arts.  Here, the property owner and developer challenged the compensation awarded by the New York State courts for the taking of private property because the NY appellate courts refused the owner the right to put forth evidence pertaining to the property's value.  The NY courts opined that the owner whose property is taken by eminent domain must be able to show its claimed highest and best use is "established as reasonably probable and not a 'speculative or hypothetical arrangement in the mind of the claimant,'" and that the owner must have specific plans that will "come to fruition" in the immediate future. 

The property owner argued in the cert petition that the Just Compensation Clause of the Fifth Amendment does not require a property owner to show that the development plans will come to fruition soon.We filed a brief in support of the property owner which argued that all evidence of value must be considered by a reviewing court and that the court(s) cannot disregard evidence that a potential buyer of the property would consider important in assessing value.

Willets Point United Supporters Rally in Support of the Private Property Rights Protection Act of 2012

Last week Willets Point United, a group of business and land owners dedicated to fighting eminent domain abuse in Willets Point, Queens, NY, and supporters of private property owners rallied in support of H.R. 1433, The Private Property Rights Protection Act of 2012.  H.R. 1433 prohibits the use of federal funds for economic development projects that use the power of eminent domain to take private property for anything other than public use.  This bi-partisan bill was co-sponsored by Republican James Sensenbrenner and Democrat Maxine Waters and passed the U.S. House of Representatives by a voice vote on February 28, 2012.  (See our previous post here.)

Photo credit: Jeanne Noonan for New York Daily News

Willets Point United supporters, including Joseph Ardizzone, NYC Councilman Dan Halloran and condemnation attorney Michael Rikon*, rallied in support of H.R. 1433 to limit the use of eminent domain for economic development projects.

Willets Point United has opposed New York City’s use of eminent domain to acquire private property for the mixed-use development planned for this Queens neighborhood.  While NYC has indicated that it is not seeking federal funds for the proposed Willets Point Urban Renewal Plan, should H.R.1433 become law it could discourage NYC and other municipalities, local and state governments from pursuing such projects due to the potential loss of  federal funding in the future. 

Read more about the Willets Point rally at New York Daily News here.

For more about the Willets Point project and opposition to it, see our previous posts here.

*Disclosure: Michael Rikon of Goldstein, Rikon and Rikon PC, New York, NY is an eminent domain attorney affiliated with the Owners' Counsel of America. Mr. Rikon represents Willets Point United, Inc. and individual property owners located within the footprint of the Willets Point Urban Renewal Plan. These owners will lose their private properties and businesses to eminent domain if the City moves forward with the proposed condemnation.

New York's Brief in Opposition to River Center's Cert Petition

The state has filed its Brief in Opposition to the property owner's Petition for Certiorari in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012).  This case involves one of the largest condemnations of private property in the history of New York City – the taking of the unused development rights of an entire city block located in the neighborhood of the Lincoln Center for the Performing Arts.  At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government’s power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use.  

Owners' Counsel has filed an Amicus Curiae Brief in this case on behalf of the property owner.  Here the Petitioner is seeking review of the decisions of the New York courts which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York.  The New York courts concluded that an owner whose property is taken by eminent domain must have specific plans that will "come to fruition" in the immediate future. The Owners’ Counsel brief argues that all evidence of value must be considered by a reviewing court, and it cannot disregard evidence that a potential buyer of the property would consider important in assessing value.

See our previous posts regarding this case here and here. See also Robert Thomas's post on this case here and here.  [Mr. Thomas prepared and filed the brief on behalf of Owners' Counsel.]

Brief in Opposition, River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (filed Mar. 2...

Owners' Counsel Welcomes Anthony Della Pelle as the New Jersey Member-Attorney

Owners' Counsel of America welcomes Anthony F. Della Pelle, Esq., CRE of McKirdy & Riskin, P.A. in Morristown, New Jersey as the New Jersey member dedicated to representing landowners throughout the State.  Mr. Della Pelle succeeds his partner, Edward D. McKirdy, Esq. who previously served as the  New Jersey representative.

Mr. Della Pelle concentrates his practice in the areas of eminent domain, redevelopment, and real estate tax appeals. He is a designated member of The Counselors of Real Estate®, an international organization of real estate practitioners who are recognized as the leading advisors in complex real property matters.  He holds Martindale-Hubbell’s® highest rating, AV Preeminent, and has been selected as a “New Jersey Super Lawyer” by New Jersey Monthly Magazine since its inception.  This year, he was recognized as one of New Jersey’s Top 10 attorneys in the New Jersey Super Lawyers Magazine.

Mr. Della Pelle blogs about eminent domain, redevelopment, and property tax appeals at the  New Jersey Condemnation Law Blog, www.njcondemnationlaw.com, and the New Jersey Property Tax Law Blog, www.realestatetaxappealsnj.com. 

 

“I am extremely honored to be elected as the New Jersey representative of Owners’ Counsel.  Its members are recognized nationally as leading property rights attorneys, and I look forward to working with them and collaborating in order to provide my clients with the best legal representation possible,”  said Della Pelle.    

To learn more about Mr. Della Pelle's career accomplishments, please visit his profile page on our website here.