The Eminent Domain Law Blog

OCA Files Amicus Brief in Support of Property Owner in SCOTUS Eminent Domain Case

2012-02-29T23:59:00.000-05:00

Owners' Counsel of America recently filed an amicus brief (embedded below) insupport of the property owners in River Center LLC v.Dormitory Auth. of the State of New York (11-922) urging the United States SupremeCourt to grant review and correct the eminent domain decision by the AppellateDivision of the New York Supreme Court.

Thecase involves one of the largestcondemnations of private property in the history of New York City – the takingof the unused development rights of an entire city block located in the area ofthe Lincoln Center for the Performing Arts. At issue are important questions about the Just Compensation Clause ofthe Fifth Amendment which limits the government’s power of eminentdomain by requiring that "just compensation" be paid to an owner ifprivate property is taken for public use.

Thepetitioner in River Center filed a Petition for Writ of Certiorariseeking review of the New York courts, which denied the landowner anddeveloper the right to present evidence concerning the value of land taken bythe Dormitory Authority of the State of New York. The petitioner had the intention of developing theproperty into a multi-use commercial, retail, and residential complex. Its plans and ability to do so, however, wereseverely restricted by the Dormitory Authority’s strategic interference over 19months to deny the re-zoning of the property and delay construction. When the property was eventually condemned bythe Dormitory Authority in 2001, the intended development had not yet broken ground.

The petition presents three questions for the Court to consider:

Questions Presented

1. Whether the Fifth Amendment permits a state to deny compensation to an owner for loss of the reasonably probable development potential of a condemned development site taken through eminent domain proceedings, unless the property owner can show that development will come to fruition in the near future.

2. Whether, in awarding just compensation under the Fifth Amendment, a state may exclude damages resulting from deliberate governmental interference with a development project that delays development and suppresses the property’s value at the time of the taking over what it would otherwise have been.

3. Whether the Fifth Amendment permits a court in a condemnation proceeding to restrict evidence of value to the testimony of appraisers and to exclude or ignore otherwise competent testimony of property value (a) from the property’s owner, and (b) from third parties able to provide market-based evidence of value, such as financing proposals and offers to lease and buy.

Robert H. Thomas of Damon Key Leong Kupchak Hastertin Honolulu prepared andfiled the amicus brief on behalf of OCA. [Disclosure: Mr. Thomas is a condemnation, land use and appellate attorney and the Hawaii member of OCA.] “This is a veryimportant case,” he said. “As a result of the Supreme Court’s decision in theinfamous Kelo case, the public’s attention in eminent domain has been on the powerof the government to take property for redevelopment and other uses that are notclearly “public.” But the question ofhow compensation is determined once property is taken is also critical, and theSupreme Court should focus its attention on this case.”

The New York courtsconcluded that an owner whose property is taken by eminent domain must have specificplans that will "come to fruition" in the immediate future. The Owners’ Counsel of America briefargues that all evidence of value must be considered by a reviewing court, andit cannot disregard evidence that a potential buyer ofthe property would consider important in assessing value.

TheNew York court also rejected evidence that the Dormitory Authority depressedthe value of the property in anticipation of the condemnation. Thomas said, “a court disregarding those facts is outrageous.” He also noted that “Manhattan is the mostexpensive real estate market in the nation and what happens there has wideimpact, so this case takes on an added importance.”

Thebrief also argues that the FifthAmendment protects the right of both a property owner and developer to testifyabout the property’s value. Owners’ Counsel implores the Court’s reviewof this case to emphasize the constraints that the Just CompensationClause places on the eminent domain powerand to safeguard the rights of private property owners.

For more discussion about River Center and "condemnation blight" (also known as "oppressive pre-condemnation conduct") visit:

Brief Amicus Curiae of Owners' Counsel of America, River Center LLC v. The Dormitory Auth. of the State of ...

Owners' Counsel Honors Florida Eminent Domain Attorney Toby Brigham

2012-02-23T15:57:00.000-05:00

The Owners' Counsel of America recently honored one of the country’s top condemnation and property rights attorneys, Toby Prince Brigham, Esq., for his devotion to the constitutional right of private property ownership. For more than 50 years, Toby Brigham, has represented property owners in Florida and across the United States in eminent domain, inverse condemnation, regulatory taking challenges, condemnation blight, and related real estate, land use and business damage litigation at both the trial and appellate level.

Toby Brigham accepted the Crystal Eagle Award on Jan. 28.

A graduate of Yale University (’56) and the University of Florida College of Law (’59), Mr. Brigham has dedicated his law practice exclusively to the defense of private property rights. At the time he began practicing law, eminent domain was hardly a special area of practice let alone the widely known hot button issue it is today. In fact, Toby Brigham helped to develop the field of eminent domain, particularly the representation of property owners in condemnation litigation, as a focused discipline. As a past planning co-chair and current faculty member of the American Bar Association-American Law Institute (ALI-ABA) annual Eminent Domain and Land Valuation Litigation course, he has sought for over two decades to educate and inspire other lawyers in the complexities of eminent domain law and the importance of private property ownership. Mr. Brigham has also lectured and written extensively on topics concerning condemnation, just compensation and private property rights.

(L to R): Joe Waldo, Toby Brigham, and Andrew Brigham

Since 1960, Mr. Brigham has represented property owners affected by every major public project in the State of Florida and secured among the largest trial verdicts and settlement awards for landowners in the state’s eminent domain history. Additionally, Mr. Brigham pioneered the use of public-private partnerships for development. He has been involved in some of Florida’s most successful public-private projects including Dadeland Station, a transit-oriented mixed use development in Miami, and the Loxahatchee Reservoir, a freshwater reservoir constructed from former rock pits in West Palm Beach. Currently, Mr. Brigham counsels landowners across the country on strategy relating to eminent domain, inverse condemnation, regulatory taking challenges and public-private partnerships.

Mr. Brigham has been recognized by both his peers and legal scholars for his effective advocacy of landowner rights. In Florida, he has been influential in shaping the constitutional and legislative provisions that currently protect property owners’ rights. Among his many honors, William and Mary Law School established the Brigham-Kanner Property Rights Conference in recognition of the lifetime contributions made by Toby Brigham and Gideon Kanner, Professor Emeritus, Loyola School of Law, to this field of law. Each year the Conference awards the Brigham-Kanner Property Rights Prize to a scholar whose work has contributed to the promotion of property rights by drawing attention to the integral role property rights occupy in our society and the broader scheme of individual liberty.

Annually, the Owners’ Counsel of America identifies individuals who have made a substantial contribution toward protecting the civil right of private property ownership and presents the Crystal Eagle Award. Past recipients include Dana Berliner (Senior Attorney, Institute for Justice), Professor James Ely (Vanderbilt University and author of The Guardian of Every Other Right), Dean Starkman, Dennis Hartig and Norman Oder (Journalists), as well as Sean Hannity and Alan Colmes (former co-hosts of Hannity & Colmes, Fox News Channel). This year, the Owners’ Counsel recognizes Toby Brigham who throughout his distinguished career has consistently sought to advance the cause of property rights in Florida and nationwide.

Disclosure: Toby Prince Brigham is an eminent domain attorney affiliated with the Owners' Counsel of Americaas an Emeritus Member.

ALI-ABA Emient Domain and Land Valuation Seminar

2012-01-31T15:19:00.000-05:00

We just returned from the 29th Annual American Law Institute-American Bar Association (ALI-ABA) Eminent Domain and Land Valuation Litigation course in San Diego. As the course description explains: "[t]he power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice."

Some highlights from the three-days of outstanding discussion and panels:

The Rule of Law and Property Rights in Emerging Economies: Challenges and Opportunities for Lawyers in the West - Harlan Abrahams
Eminent Domain for Economic Development: Is It Dead in California? If So, What Killed It? - John Murphy
My Cousin Vinny Meets The Verdict: What You Can Learn about Legal Ethics from Your Favorite Lawyer Movies - Larry Cohen
The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases - Professor David Callies and Robert Thomas
Update from the President of the International Right of Way Association Regarding Prominent Issues Facing the IRWA - Randy Williams
Fear and Loathing from San Bruno: A Primer and Update on Damage Claims Based on Fear and Stigma – Brandee Caswell
Creative Use of Exhibits and Demonstrative Evidence in Eminent Domain Mediations and Trials (Condemnation 101)- Jeff Hamill and Randy Smith
Condemnation, Common Sense, and My Sister-in-Law, the Court Reporter (Condemnation 101)- Mark Savin

This is by no means an exhaustive list of the many truly amazing discussions that took place over the duration of the course, rather a short list of those topics in which we were able to participate. Unfortunately, it was impossible to hear every speaker and panel as this advanced-level course offers a dual tract format including substantive and practice area discussions while also running concurrently with Condemnation 101 which offers a broader introduction to eminent domain law.

If you are an eminent domain practitioner or professional in the field of land valuation, land planning, right-of-way or other related fields and you have not attended this course, it is highly recommended for the amazing insight provided by both the faculty and participants of both courses. This conference provides a unique opportunity for professionals from both sides (as well as the middle) of this nationally recognized issue to engage in healthy debate and discussion, exchange ideas and network. It's an annual occurrence, so the opportunity to join in the fun will be available again next winter...see you there.

Brigham-Kanner Property Rights Conference Makes Its International Debut in Beijing

2011-12-07T16:19:00.001-05:00

The 8th Annual Brigham Kanner Property Rights Conference was held at Tsinghua University School of Law in Beijing, China, October 14-15, 2011.

The Eighth Annual Brigham-Kanner Property Rights Conference completed its international debut on October 15, 2011 in China. Legal scholars, jurists, and practitioners from the United States and China converged at Tsinghua University in Beijing to discuss and debate the evolution of property rights on a global scale. The Owners’ Counsel of America is pleased that our Member-attorneys were invited to participate in this prestigious event.

Owners’ Counsel Member, Joseph T. Waldo of Waldo & Lyle, P.C. in Norfolk, Virginia, was on the Conference Planning Committee and moderated three Conference panels. It was his vision to bring the Brigham-Kanner Property Rights Conference, usually held at William & Mary Law School in Williamsburg, Virginia, to an international stage: “The Brigham-Kanner Property Rights Conference is our nation’s only conference that focuses on the interplay of our civil rights to our property rights. This topic is becoming increasingly important worldwide. Because China is in the process of developing new property rights protections, it was the ideal venue for this year’s conference.” One of the major successes of the Conference, he contends, was that it “placed global emphasis on the important role property rights play in our societies and in each person’s individual liberty.”

During the two-day conference, as Chinese scholars discussed the impacts of China’s new, formal recognition of private property rights, Robert Thomas, Owners’ Counsel Hawaii Member, blogged live from Beijing. Thomas, a Director at Damon Key Leong Kupchak Hastert in Honolulu, commented, “…this is a propitious time to have this conference, and have it here.” Following the first panels, he wrote of his surprise that the Chinese panelists were so frank: “My impression was that it was not acceptable to make express criticism of the government, and even that there might be repercussions for doing so. But apparently, the ability of academics, at least, to say what they think, some of them quite critical of existing policies or actions, would be recognizable to western faculty schooled in the tradition of academic independence.”

Panelist and Owners’ Counsel Florida Member, Andrew Brigham of Brigham Moore, LLP in Jacksonville, remarked, “While there continues to exist significant contrasts in the structure of government between the U.S. and China, private property ownership appears to be a cornerstone in China’s recent reforms.” Brigham continued, “China, however, will have to build for itself a paradigm for property rights that is truly Chinese given this time and place in the country’s emergence as a global leader.”

Other Owners’ Counsel eminent domain attorneys who participate in the Beijing Conference included Alan Ackerman (Michigan), James Thompson (Maryland), Leslie Fields (Colorado), and James Burling of the Pacific Legal Foundation. Mr. Ackerman shared the stage with China’s most revered panelist, Ping Jiang, the former president of China’s University of Political Science and Law in a panel that focused upon Justice O’Connor’s property rights decisions. Mr. Thompson and Ms. Fields brought the eminent domain lawyer’s point of view to light in a roundtable discussion entitled “How Practitioners Shape the Law;” while, Mr. Burling discussed the relationship between property rights and the environment.

The 2011 Brigham-Kanner Prize was awarded to retired Supreme Court Justice Sandra Day O’Connor. In light of China’s new and increasing protections of property rights, Justice O’Connor was a fitting choice for this year’s Prize. As China begins to acknowledge and emphasize the importance of property rights, Justice O’Connor may be seen as an exemplar: it is possible for views and opinions on property rights to improve with time. Although Justice O’Connor was unable to be present in China, she graciously accepted the award in absentia with videotaped remarks.

Justice O'connor discussed the United States’ history of property rights protections, China’s emerging laws, and her own property rights decisions. Justice O’Connor concluded her remarks with the hope “that we will all continue to develop mechanisms for preserving rights in property for the benefit of all.”

Conference proceedings and related articles will be included in the inaugural Brigham-Kanner Property Rights Conference Journal, the first volume of which will be published in 2012 by The Property Rights Project of William & Mary Law School. The 2011 Beijing Conference was an exciting and informative conference, heralded by all as a success. The Owners’ Counsel of America enjoyed the pleasure of participating in it and we look forward to attending the 2012 Conference.

Eminent Domain documentary "Battle For Brooklyn" on the "shortlist" for the Oscars

2011-11-21T11:16:00.001-05:00

The Academy of Motion Picture Arts and Sciences ("The Academy") announced last week that Battle For Brooklyn has made the "shortlist" of 15 documentary films that will advance in the voting process to be considered for an Academy Award. This film has certainly come far and received rave reviews since we first viewed it in February at its debut screening during the ALI-ABA Eminent Domain and Land Valuation Litigation course in Coral Gables, FL.

As we wrote this summer before the film opened in New York, Battle for Brooklyn captures a community's seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. It is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community, literally. Read more about Battle For Brooklyn on this blog here, an movie review by fellow blogger Robert Thomas here and his interview with one of the filmmakers here. Watch the trailer below.

Upcoming screenings: (Check battleforbrooklyn.com/screenings for a more up to date list of dates.)

November 22 - Chapel Hill, NC
6pm at Varsity Theater

January 13, 14, 15, 2012 - Washington, DC
Dome Theater, Artisphere in Arlington, VA

Friday, January 13th - 8:00 PM
Saturday, January 14th - Matinee with panel discussion TBD - 5:00 PM
Saturday, January 14th - 8:00 PM
Sunday, January 15th - 6:00 PM
All screenings will be followed by Q&A with directors Michael Galinsky and Suki Hawley. A screening of the short film, “The Tragedy of Urban Renewal” by dir. Jim Epstein will precede each screening.

Mississippi voters approve amendment restricting eminent domain

2011-11-10T10:06:00.004-05:00

On Tuesday with 73% of Mississippians voting in favor of property rights and limiting the use of eminent domain for private development, Initiative 31 was approved. Since the infamous 2005 U.S. Supreme Court ruling in Kelo v. City of New London, 43 states have passed legislation creating stronger protections for private property owners against the power, and possible abuse, of eminent domain. Mississippi has now become the 44th state to reject the use of eminent domain for private development.

Initiative 31 amends the Mississippi Constitution to prohibit the state and local governments from taking private property by eminent domain and transferring it to another private party or entity. The restriction extends for a decade allowing agencies that condemn private property for a public use to transfer or sell it to another owner only after having owned and used the property for a minimum of 10 years. This restriction discourages the transfer of private property from one landowner to another private party for the purpose of “economic development”.

For more on Initiative 31 see our previous post here. We also recommend reading yesterday's posts by Gideon's Trumpet here and IJ's Castle Coalition here.

Mississippi Ballot Initiative No. 31 on Eminent Domain: "motherhood and apple pie"

2011-11-08T12:10:00.000-05:00

Voters in Mississippi are at the polls today to elect a new governor and legislature as well as decide upon a number of measures. Among them is Initiative 31, a citizen's initiative for a constitutional amendment to prohibit the state and local governments from using the power of eminent domain to condemn private property and transfer it to another private individual or entity for a period of 10 years after acquisition. Initiative 31 has garnered much media attention and Campaign Insider has called this a "ballot battle to watch."

Since Kelo, Mississippi remains one of only 7 states that has not yet enacted statutory provisions to protect its citizens from private to private property transfers via eminent domain. Mississippians and their legislators have tried twice in the past to pass eminent domain legislation. However, outgoing Gov. Haley Barbour (R) vetoed both pieces of legislation. (See our previous posts here, here and here.)

It's no secret that Gov. Barbour opposes Initiate 31. Barbour has argued that it will diminish the state’s ability to attract private investment and create jobs. Mississippi’s gubernatorial candidates disagree and have supported Initiative 31. The Mississippi Farm Bureau and the more than 100,000 voters who signed the petition to put Initiative 31 on the ballot also disagree with Barbour. Randy Knight, a Mississippi dairy farmer and president of the state Farm Bureau Federation, has argued "Other states have adopted a strong eminent domain law. They're still getting jobs. They're still getting economic development. They're still getting businesses to come set up in their state." (See Fox News report 11/3/11 here.) Further, Initiative 31 would not apply to all eminent domain actions allowing for exemptions for levee facilities, roads, bridges, ports, airports, common carriers, drainage facilities and utilities, or true public uses.

Fox News also quoted Leland Speed, the director of Mississippi's Development Authority, "This is a very emotional topic," he said. "It's motherhood and apple pie."

Actually Mr. Speed, it's a Constitutional guarantee and a ballot battle we're definitely watching.

St. Louis property owner retains his 1st Amendment right to protest eminent domain abuse

2011-07-19T12:29:00.010-04:00

Property Owner, Jim Roos, pictured here in front of his eminent domain protest "sign."

Photo by The Institute for Justice

Last week the 8th Circuit Court of Appeals upheld a property owner's First Amendment right to protest the abusive eminent domain policies of the City of St. Louis. The case concerns a St. Louis property owner, Jim Roods, who opposed the city’s definition of blight and condemnation of his housing agency's private property for private redevelopment. Roos expressed his opposition by painting a conspicuous and rather large mural in protest on the side of one of the agency's buildings facing the interstate. The mural reads: "End Eminent Domain Abuse."

Of course, the city was not a fan of the mural. As such, Roos was required to either remove it or obtain a permit for it. However, when he attempted to secure the proper permit, the city refused to issue one to him pursuant to the zoning code. Roos appealed to the Board of Adjustment and was again denied. Roos's attorneys at the Institute for Justice filed a suit in state court against the City of St. Louis claiming federal civil rights violations. The city removed the case to federal court.

In March 2010, the federal district court judge ruled that the mural is not art, violates the city's sign code and must be removed. The city's sign ordinance requires signage to be no larger than 30 square feet in this zoning district. Mr. Roos's anti-eminent domain mural is reported to be more than 360 square feet. (See our previous post here.) The district court also concluded that the city's sign ordinance was “content neutral,” despite "content-based" exceptions for "national, state, religious, fraternal, professional and civic symbols or crests". The Eighth Circuit reversed, finding that the ordinance is not "content neutral" and therefore must be reviewed with strict judicial scrutiny: “[T]he zoning code’s definition of ‘sign’ is impermissibly content-based because ‘the message conveyed determines whether the speech is subject to the restriction.’”

"This is a victory not just for Jim Roos' right to protest eminent domain abuse, but for the right of every American to stand up to government whenever it abuses its power," says Michael Bindas, an attorney with the Institute for Justice, which represented Roos. "This case shows how interconnected our constitutional rights are—how vibrant free speech protections are essential to the preservation of our other rights and liberties, including property rights."

For more about the case see:

the Institute for Justice here
inversecondemnation.com here
Reason.com here
the Volokh Conspiracy here

New Cert Petition filed with SCOTUS: Post Kelo when is condemnation pretextual?

2011-07-18T14:52:00.011-04:00

On July 14, 2011, our colleagues* at Damon Key Leong Kupchak Hastert in Honolulu, Hawaii filed a cert petition (see below) asking the U.S. Supreme Court to review the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (Haw. 2010). In this case the County of Hawaii sought to seize by eminent domain the private property of the Coupe and Richards families for the purpose of constructing a 5.5-mile highway to bypass part of the congested Mamalahoa Highway. Hawaii's highest court upheld the taking on The Island of Hawaii (aka "the Big Island") holding that the asserted public use (a highway bypass) was not a pretext for a primarily private benefit received by the developer of a luxury residential project, the Hokulia project.

[*Disclosure: OCA Hawaii Member, Robert Thomas, is one of the Damon Key attorneys who has represented the Coupe and Richards Family in this litigation and in this request to the Supreme Court.]

Because he said it so well and because of his personal familiarity with this case, we will borrow what Robert has written on his inversecondemnation.com blog here outlining the opportunity that this petition for certiorari offers with respect to clarification of pretext in eminent domain.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that "unusual" exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan; (2) the factual context reveals suspect motivations such as a contractual restraint on sovereign powers; (3) the taking benefits a particular private party selected beforehand; or (4) private benefits outweigh incidental public benefits.

Governments and property owners will benefit from the establishment of clear standards, because condemning authorities will understand that when they utilize eminent domain in a neutral, transparent, and well-considered process, the result will be entitled to judicial deference, and property owners will be assured that in the absence of these indicators of pretext, the need to surrender their property for the greater good is genuine. While any single indicator is enough to trigger reversal of the presumption of validity, this case has all four.

The Question Presented in the petition follows:

The Hawaii Supreme Court held that a one-to-one transfer of property to a private developer by eminent domain, instituted outside the confines of an integrated development plan, and while the condemnor was threatened by breach of a contract in which it promised to condemn the land for the developer, was not subject to a presumption of invalidity or even heightened scrutiny under the Fifth Amendment's Public Use Clause. The court concluded that even when "a contract that delegates a county’s eminent domain powers raises well founded concerns that a private purpose is afoot" under Kelo v. City of New London, 545 U.S. 469 (2005), it is the property owner’s burden to prove by "clear and palpable" evidence the asserted reason for taking property is "manifestly wrong."

Since Kelo, the lower courts have been unable to settle on consistent or clear standards for when the public purpose supporting an exercise of eminent domain is pretextual, or in what situations the "risk of undetected impermissible favoritism" is such that a presumption of invalidity or a heightened standard of review is warranted. Id. at 493 (Kennedy, J., concurring). The question presented is:

What category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?

Additional background relating to this case is available on inversecondemnation.com here and here. See also Hawaii Legal News and the Star Bulletin.

Petition for a Writ of Certiorari, C&J Coupe Family Ltd Pship v County of Hawaii (filed 7/14/2011)

A personal invitation from Dean Douglas to attend the Brigham-Kanner Property Rights Conference in Beijing

2011-07-05T11:18:00.005-04:00

What: The 8th Annual Brigham-Kanner Property Rights Conference
Where: Tsinghua University School of Law, Beijing, China
When: October 14 & 15, 2011
Who: Property rights legal scholars, students, eminent domain/condemnation and property rights lawyers, judges, related professionals and anyone interested in the advancement of property rights and comparative legal theories surrounding real property rights
Keynote Speaker: Justice Sandra Day O'Connor

Visit the conference website for additional details or see our previous posts here and here.

Battle for Brooklyn opens in NYC this weekend

2011-06-16T16:05:00.002-04:00

The documentary Battle for Brooklyn opens this Friday, June 17th, at Cinema Village in Manhattan and at indieScreen in Brooklyn. The film Battle for Brooklyn captures a community's seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. It is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community, literally. We saw the film at a preview screening held at the ALI-ABA Eminent Domain conference in Miami in February. (See our previous posts about the film here and here.)

Since then the film made its world premier at the prestigious Hot Docs Canadian International Documentary Festival in Toronto and won Best Documentary and the Grand Chameleon Award last weekend at the Brooklyn Film Festival. It has received acclaim from the press, property rights advocates, and the general public and truly demonstrates that some things in life are certainly worth the fight.

If you're in NYC this weekend and haven't seen Battle for Brooklyn, yet, check it out. Show times are 1:00, 3:00, 5:00, 7:00 and 9:15 pm Friday, June 17 through Sunday, June 19.

Michigan eminent domain attorney, Darius Dynkowski, discusses the Detroit-Windsor Bridge project

2011-06-07T16:38:00.005-04:00

"View From the Top" Ep. 31 from Specs Howard TV on Vimeo.

In this interview with Dbusiness Magazine, attorney Darius Dynkowski* discusses the procedures and laws of eminent domain with respect to the proposed New International Trade Crossing, also known as the Detroit-Windsor Bridge. He explains what residents and business owners in the footprint of the project site can expect if and when the Michigan Department of Transportation (MDOT) begins acquiring property for this proposed project.

The proposed Detroit-Windsor Bridge would span the Detroit River connecting Detroit, Michigan with Windsor, Ontario with a second toll bridge containing six lanes. The only current international bridge crossing between Michigan and Canada is the 82-year old Ambassador Bridge which contains four lanes and is considered the busiest border crossing between the U.S. and Canada.

While there is opposition to the bridge project, the question of whether the use of eminent domain to acquire the necessary private property to construct the bridge is a genuine public purpose is not the basis for this opposition. If the Michigan legislature passes the proper legislation to enable the State to acquire property for the project, then the question of public purpose will become moot. However, any condemning authority granted eminent domain powers will still need to follow the proper procedures and laws to acquire private property. Further as Mr. Dynkoswki explains in the interview, the condemning authority will need to pay property owners "just compensation" for the acquisition of homes and businesses in the project area near I-75 and Dragoon. For a business owner just compensation can include the costs associated with relocation of the business (including trade fixtures and equipment) as well as compensable losses resulting from the taking of the business property.

Form more details about the Detroit-Windsor Bridge Project see also:

"Darius Dynkowski interviewed Re: Detroit-Windsor bridge," Federal Eminent Domain Blog, 6/5/11

"Michigan Governor Pushes New Detroit-Windsor Bridge," John, D. Boyd, 6/2/11

"It's time to build the bridge," Michigan government press release, 6/1/11

"Former Michigan governors support new Detroit-Windsor bridge," Zoe Clark, 1/28/11

*Disclosure: Darius Dynkowski, a partner with Ackerman, Ackerman & Dynkowski in Bloomfield Hills, Michigan, is the Michigan member of the Owners' Counsel of America. Mr. Dynkowski and the firm focus upon defending private property owners threatened by eminent domain throughout Michigan.

Montana's eminent domain bill HB 198 becomes law without Governor's amendment

2011-05-10T16:30:00.022-04:00

On Thursday, May 12, Montana Governor Brian Schweitzer allowed Montana House Bill 198 (HB 198) concerning eminent domain to become law. Despite the imbalanced aspects within HB 198 favoring big business over landowners' rights, Gov. Schweitzer chose to not veto the bill allowing it to become law.

In April, Gov. Schweitzer expressed his desire for an expiration date to the bill allowing it to only exist as a temporary measure for 2 years which would allow the Legislature time to work out a more balanced bill. At that time, Schweitzer indicated that he would use an amendatory veto to ask the Legislature to terminate the bill in 2013. Although Schweitzer complained last week that the bill left land owners at a disadvantage, he explained that he would allow the bill to become law in an effort to protect the state's economy. HB 198 has been touted as a "jobs bill" by supporters.

HB 198 expands the power of eminent domain to private utilities constructing "merchant" lines (for-profit, private utility lines). Historically, in Montana public utilities have used the power of eminent domain to condemn private property for public utility projects. HB 198, however, grants the power to condemn private property to private utility companies. Specifically, HB198 was introduced and championed through the Montana Legislature for the purpose of allowing Canadian-based Tonbridge Power to take property for the Montana Alberta Tie Limited (MATL) and NorthWestern Energy to take property for its Mountain States Transmission Intertie (MSTI).

When constructed MATL will be a private "merchant" (for-profit) 214-mile transmission line that spans from Lethbridge, Alberta across Montana ranches, farms and homesteads into Great Falls, Montana allowing the transmission of power between the two markets. The MSTI project will run through Montana property connecting substations in Townsend, Montana and Jerome, Idaho. Energy carried on both the MATL and MSTI line will be largely generated on Montana wind farms for the benefit of out-of-state and Canadian consumers.

Prior to the recent passage of HB 198 and the Governor's decision to let it become law, the MATL project has been on hold as the result of a 2010 court ruling in favor of Montana's private property owners. In December, District Judge Laurie McKinnon opined that “MATL does not possess the power of eminent domain, either express or implied, and it has no authority to take the private property of a nonconsenting landowner.” Judge McKinnon's ruling halted MATL's use of eminent domain to take private property for the transmission line. MATL appealed the case to the Montana Supreme Court. However, the attorney representing MATL filed a motion last week with the Court requesting that the case be returned to the lower court with instructions to enter an order permitting MATL to condemn the property, pursuant to HB 198, which is retroactive.

In the meantime, a grassroots initiative by Concerned Citizens Montana seeks to repeal HB 198 via a citizens' referendum on the 2012 ballot. The initiative seeks to gather enough voter signatures to suspend the law until Montana voters can decide whether to repeal it or allow it remain as law. More information about the referendum initiative is available on CCM's website here.

For more information about HB 198 see also:

Eminent domain bill to become law without Schweitzer's signature
Frustration in Montana
In high-profile case, Montana landowner argues condemnation power must be explicit
Eminent domain expiration date makes sense
Kelo in the Country...HB 198 and the Taking of Rural Property
District Judge denies MATL's claim of eminent domain

Disclosure: Hertha Lund is an attorney in Bozeman, Montana who represents Montana property owners statewide in property rights, water rights and wind energy development matters. Ms. Lund represents a number of landowners throughout Montana currently defending their properties against condemnation, including the Salois family who is the Appellee in the Montana Supreme Court Case with MATL referenced in the above post. Ms. Lund is a member of the Owners' Counsel of America.

New York eminent domain attorney Michael Rikon will present a condemnation case study at international conference in Beijing

2011-04-26T09:26:00.004-04:00

Condemnation attorney, Michael Rikon, a partner at Goldstein, Rikon & Rikon, P.C. in New York City, has been invited to speak at the 7th International Conference on the Valuation of Plant Machinery and Equipment (ICVPME) in Beijing, China September 19-21, 2011. [Disclosure: Michael Rikon is the New York representative of Owners’ Counsel of America. Mr. Rikon has practiced eminent domain law since 1969. Mr. Rikon and the firm limit their practice exclusively to representing private property owners in condemnation actions.]

Mr. Rikon will present a paper entitled “Case Study of Condemnation on Machinery and Equipment.” The paper explains how American courts treat compensation for plant machinery and equipment—or trade fixtures—that have been condemned.

The term trade fixtures in the law of eminent domain includes machinery, fixtures, equipment, and improvements made to a property for business purposes. Michael Rikon’s paper also addresses the judicial treatment that countries outside the United States apply to similar activities.

The 7th ICVPME Conference is sponsored by the China Appraisal Society, the American Society of Appraisers, Australian Property Institute, and Royal Institute of Chartered Surveyors. The conference includes experts on valuation from all over the world. Michael Rikon has practiced eminent domain law for 42 years and has tried several hundred trade fixture claims to judgment in the courts. For further information on the conference, visit the official website at http://www.icvpme.org.

Owner awarded approx. $25M for condemnation of private property in Harrison, NJ

2011-04-15T10:01:00.030-04:00

In a recent arbitration, a panel of arbitrators awarded property owner, Harrison Eagle, LLP nearly $25 million for the taking of approximately 10 acres of property adjacent to the PATH commuter rail station and proximate to the Red Bull Arena in Harrison, NJ. The town's redevelopment agency used the power of eminent domain to take the private property and convey it to a private redeveloper and as such the arbitration amount is to be paid to the owner by the developer, Pegasus Group. The property, located across the Passaic River from Newark, contained approximately 7 acres of surface parking (about 1,000 spaces) as well as 200,000 square feet of multi-story industrial buildings.

In 1997, the Town of Harrison designated the area surrounding the Harrison Eagle property as an "area in need of redevelopment." The designated redevelopment area contains approximately 270 acres - almost 1/3 of the town's entire land area. In attempts to maintain ownership, several property owners whose properties were located within the redevelopment area challenged the redevelopment designation on the basis that the area was not blighted. None of these earlier challenges were successful in court and the town initiated condemnation proceedings in 2006 to take the Harrison Eagle property as well as two other adjacent properties.

Facing the potential loss of their properties by eminent domain, these three owners challenged the taking on the basis that both the area and their properties were not blighted and as such the town had no right to condemn. Like their predecessors, the owners lost in the trial court but sought review by the appellate court. In 2008, the Appellate Division remanded the case back to the trial court for further review on the basis that the town's notice concerning the 1997 redevelopment hearings was deficient. See Harrison Redevelopment Agency v. DeRose, et al, 398 N.J. Super. 361 (App. Div. 2008). The appellate court found that:

We hold that, unless a municipality provides the property owner with contemporaneous written notice that fairly alerts the owner that (1) his or her property has been designated for redevelopment, (2) the designation operates as a finding of public purpose and authorizes the municipality to acquire the property against the owner's will, and (3) informs the owner of the time limits within which the owner may take legal action to challenge that designation, an owner constitutionally preserves the right to contest the designation, by way of affirmative defense to an ensuing condemnation action.

-SABATINO, J.A.D.

Because the appellate court found that the 1997 notices were deficient, it concluded that the owners retained the right to challenge the taking of their properties in 2006. While the matter was on remand to the trial court, the attorneys of McKirdy & Riskin,* who represented Harrison Eagle, successfully argued for and obtained an injunction requiring the redeveloper to stop work on the project. (See NJ.com here for more details on the judge's order halting the redevelopment.) Because of this injunction, Harrison Eagle's attorneys were able to negotiate a settlement prior to the trial court's determination of whether the town had the right to condemn the properties for redevelopment purposes. The settlement required that the property owner give up the challenge to the taking in exchange for an agreement to resolve the issues of just compensation and environmental liability by binding arbitration as well as an additional payment of $5 million in addition to any award of just compensation determined at arbitration.

The issues concerning the just compensation and environmental liability of this former industrial site and commuter parking facility are somewhat complex. As such, the arbitrators decided each issue separately. In the environmental arbitration, Pegasus Group argued that remediation would cost $16 million to clean the site. The owner countered that the clean-up costs would be approximately $2.5 million. Based upon the evidence presented by both sides, the arbitrators concluded that a remediation expense of $4.5 million was appropriate.

In the arbitration to determine the value of the property, the redeveloper submitted an amended appraisal valuing the property at $13 million, a number $2 million lower than the first appraisal of $15 million prepared 5 years earlier. The $13 million amended appraisal reduced the property's value by $2 million based upon environmental "stigma." By contrast, the property owner's appraisal valued the property at $35 million. The arbitrators split the difference between the parties and awarded the owner $24 million as just compensation. "We were pleased that the arbitration panel recognized that these properties had significant value, although it is unfortunate that our client had to endure such a long and difficult battle just to protect his family's property rights," said Tony Della Pelle, one of the attorneys representing Harrison Eagle.

This award was quite significant considering that the attorneys for Pegasus group originally suggested that the property owner should pay the redeveloper $3 million for the condemnation of the property. This negative compensation was based upon the redeveloper's belief that the property was worth $13 million (with environmental "stigma") and would require an investment of $16 million to remediate (for environmental "clean-up") resulting in a liability of -$3 million payable by the owner! The redeveloper suggested this negative just compensation disregarding the fact that the property had earned considerable income annually and that the owner would lose this income producing asset. "Imagine how our client felt when the redeveloper's initial offer suggested that the property would be taken and that little or no compensation would be paid even though these properties had generated income of several hundreds of thousands of dollars each and every year," explained Tony Della Pelle.

In the end, the property owner receives almost $25 million ($24 million just compensation - $4.5 million environmental liability + $5 million agreed payment to settle by arbitration) for the taking - quite a difference between the estimated -$3 million suggested by the redeveloper. While this is a certainly a victory for the owner, it is not a windfall. The owner lost a very unique piece of property, a profitable commuter parking facility, and will unlikely be able to find a replacement as there are simply few, if any, properties adjacent to commuter PATH stations in New Jersey in which to invest.

More details about this case are available at "Harrison Developer to pay $24M for eminent domain takeover of parcels near PATH."

*Disclosure: Edward McKirdy and Tony Della Pelle of McKirdy & Riskin, PA (www.mckirdyriskin.com) in Morristown, NJ represented the property owner, Harrison Eagle and the Adler Family, in the condemnation action and through the valuation arbitration. Both attorneys are affiliated with the Owners' Counsel of America; Mr. McKirdy is the New Jersey member of OCA.

Private Property Rights Protection Act of 2011

2011-04-13T09:55:00.006-04:00

Yesterday, Representatives Jim Sensenbrenner (R-WI) and Maxine Waters (D-CA) introduced H.R. 1433, the "Private Property Rights Protection Act of 2011." This bipartisan bill prohibits states and municipalities from using eminent domain for private development if they have received federal economic development funds. H.R. 1433 also prohibits the federal government from using eminent domain for economic development, the taking of private property and transferring of it to another private entity in order to increase tax revenue, jobs or for general economic growth. Importantly, the bill continues to permit eminent domain for traditional public uses such as public utilities, roads and post offices, and would also allow local officials to remove properties that pose an immediate threat to public health and safety and put abandoned property to productive use. More about H.B. 1433 is available here.

Following the U.S. Supreme Court’s infamous decision in Kelo v. City of New London, a nearly identical bill was introduced in 2005 and passed the House by an overwhelming vote of 376-38. The Senate, however, never voted on the passage of the 2005 bill.

Dana Berliner, a senior attorney with the Institute for Justice, which litigated in defense of the homeowners in the Kelo case, testified in favor of H.R. 1433 before the House Judiciary Subcommitee on the Constitution. Ms. Berliner was joined by Lori Ann Vendetti, a homeowner from Long Branch, N.J., who spent years battling to save her home and her parents’ home from condemnation for a high-end condominium project. An excerpt from Berliner's testimony to the House Committee is below.

“In this economy, Congress does not need to be sending scarce economic development funds to projects that not only abuse eminent domain and strip hard-working, tax-paying homeowners and small businesses of their constitutional rights, but that may ultimately fail. Let New London be a lesson: After $80 million in taxpayer money spent, years tied up in litigation and a disastrous U.S. Supreme Court ruling, the neighborhood is now a barren field home to nothing but feral cats. The developer abandoned the project, and Pfizer—whom the project was intended to benefit—also left New London.”

The Institute for Justice and Castle Coalition are calling upon property rights supporters to express support for H.B. 1433 by registering with the Castle Coalition here. Upon registering, supporters will receive a free Castle Coalition pen and sticker. If you recruit others to sign up and they indicate that you referred them, you will also receive a free "End Eminent Domain Abuse" t-shirt!

Eminent domain documentary "Battle for Brooklyn" world debut April 30 at Hot Docs Film Festival

2011-03-25T11:41:00.008-04:00

"Battle for Brooklyn," the documentary film about the Atlantic Yards Project (our previous AY posts are available here) in Brooklyn, NY, will make its world premier at the prestigious Hot Docs Canadian International Documentary Festival in the World Showcase program on April 30, 2011 at 7:00 PM in Toronto. A sneak peak screening of the film premiered at the ALI-ABA Eminent Domain and Land Valuation Litigation course in Coral Gables, FL February 16 and 18, 2011. (See our previous post about the screening here. See also Robert Thomas's interview with RUMUR's Michael Gallinsky after the Feb. 18 ALI-ABA screening here.)

"Battle for Brooklyn" (formerly "Battle of Brooklyn") captures a community's seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. The film is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community.

About the film: BATTLE for BROOKLYN

The film is a close-range look at the fight to stop condemnation waged by property owners and residents living in the footprint of the Atlantic Yards Project, a massive real estate development proposal to build 16 skyscrapers and a basketball arena for the New Jersey Nets in the heart of Brooklyn.

Daniel Goldstein's apartment sits at what would be center court of the new arena. He is dragged into the fight because he simply can't believe that the government should use the power of Eminent Domain to take his property and hand it off to a private developer. He and others form a community activist group to develop alternative plans to the proposal and to expose misconceptions about the project in the media. Going up against the largest publicly traded real estate developer in the U.S., a mayor, and Russian oligarch (all billionaires), he wages an all out battle to stop the project and takes his case to the State's highest court of law.

Along the way, Daniel falls in love, gets married and starts a family. Compiled from almost 500 hours of footage, Battle for Brooklyn is an epic tale of how far people will go to fight for what they believe in.

You can view the trailer at rumur.com/battle

About The Filmmakers

As an award-winning multimedia production studio, RUMUR Inc, has collaborated with such high profile clients as HBO, A&E, IFC, PBS, AOL, The New York Times, The New York Public Library and the NYC Department of Education to produce feature films, mini-series, industrial commercials, and web applications. Previous films have been short-listed for Academy Award consideration.

RUMUR has a reputation for producing and distributing provocative documentaries that both garner critical acclaim and have the power to move people to action. Battle of Brooklyn will be the centerpiece of a campaign to re-examine state laws regarding eminent domain and property rights.

For more information visit rumur.com/about

Planning for the Brigham-Kanner Property Rights Conference in Beijing is underway

2011-03-23T16:43:00.005-04:00

The Brigham-Kanner Property Rights Conference began in 2004 at the Marshall-Wythe School of Law at the College of William & Mary. Annually the Brigham-Kanner Property Rights Conference awards the Brigham-Kanner Property Rights Prize to an individual whose work has advanced the cause of property rights and has contributed to the overall awareness of the important role property rights occupy in the broader scheme of individual liberty.

The Brigham–Kanner Property Rights Prize is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance pertinent constitutional protections of property and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights. Toby Prince Brigham is a founding partner of Brigham Moore in Florida and has practiced eminent domain and property rights law for more than 40 years. Gideon Kanner is professor of law emeritus at Loyola Law School in Los Angeles and is currently Of Counsel at Manatt, Phelps & Phillips in California. This year’s prize recipient is Justice Sandra Day O’Connor.

The Brigham-Kanner Property Rights Conference is renowned for its outstanding panel discussions and for bringing together the bench, bar, and academics on its panels. The Conference is notable for its encouragement of active participation from the audience through its question and answer segments with each of the panels. This is the Conference’s inaugural year abroad and will be hosted by Tsinghua University in Beijing.

The theme for the 2011 conference is "Comparative Property Rights." Panel topics will focus on property as an instrument of social policy, property as an economic institution, property rights and the environment, a roundtable discussion on the future of property rights as well as a discussion of the important property rights decisions of Justice O'Connor's judicial career. Panelists include the seven previous recipients of the Brigham-Kanner Prize, American property rights scholars and attorneys as well as legal scholars from Tsinghua University and throughout China.

Visit www.bkconference.com for more details regarding the panel topics, speakers and activities planned for the 2011 Brigham-Kanner Property Rights Conference in Beijing. The William & Mary Alumni Committee is planning a post-conference tour of China and Hong Kong. For more information about the post-conference tour click here. See our previous posts about the conference here.

Alexander Hamilton was a “Holdout”

2011-03-03T14:38:00.003-05:00

By Michael Rikon* (reprinted with the permission of the author)

According to an article published February 20, 2011, in Crain’s internet magazine, NewYorkbusiness.com, “Holdouts dig in at Willets Point”, the local business owners are fighting City efforts to turn the 62 acre area into a mixed-use development.

Crain’s isn’t the first to use the pejorative term “holdouts”. In an internet article dated February 13, 2011, WNYC News issued an article titled “City warns Holdouts in Queens of Eminent Domain proceedings.”

This is truly remarkable. What makes it truly remarkable is the concept that a property owner or business owner would be considered a “holdout” for refusing to sell to the City of New York.

Can the reporters who write these articles be so naïve as to the power of eminent domain inherent in the City? Has anyone taken the time to explore the facts and circumstances of the history of this disgraceful proceeding?

Let us set forth the facts of this abusive use of the power of eminent domain. The Council of the City of New York adopted Resolution No. 1759 on December 18, 2008.

This Resolution with other related Resolutions adopted the Willets Point Urban Renewal Area. The Resolution approved the Urban Renewal Plan, the Resolution states, “the Plan requires the acquisition and subsequent disposition of property within the Willets Point Urban Renewal Area.” This is the predicate authorization to condemn.

Although the City is holding a statutorily required public hearing under Article 2 of the Eminent Domain Procedure Law, make no mistake, the authorization for the proposed condemnation is the City Council’s Resolution adopted in 2008.

When the City Council authorizes acquisition of private property, the City is required to comply with the Eminent Domain Procedure Law. That law requires the appraisal of the properties to be acquired and the written offer of an amount that represents 100% of the highest approved appraisal.

This was not done in Willets Point. What was accomplished was the purchase of the properties of the largest owners on extraordinary terms including land to relocate to. And, the ability to stay put even after the condemnation. The City has not made good faith offers to the small owners.

The Eminent Domain Procedure Law requires equal treatment to all property owners. So why does the largest condemning authority in the country chose to ignore the law? Because it is politically convenient. It is no secret that those owners who obtained favorable deals were also those that supported members of the City Council that wrote an “adamant opposition” letter signed by 29 members to prevent the project’s approval. But the Project was approved after the negotiated agreements were made.

The City’s improper conduct in ignoring the law’s requirement of written offers based on fair market appraisals and equal treatment to all property owners is inexcusable. The law was adopted to prevent corruption and special deals.

Indeed, the very scheduling of the Eminent Domain Hearing when the City knows it cannot proceed because it cannot build without ramps to the Van Wyck Expressway is just another improper move to force deals.

Condemnation is a very significant power. It enables a condemnor to forcibly take title to someone’s land or business.

If this awesome power is to be used by the government, it must be used carefully, legally and only when necessary.

Americans have property rights which are guaranteed by our constitutions.

And, remember what Alexander Hamilton said at the Philadelphia Convention, “the security of property” is one of the “great obj(ects) of Gov(ernment)” 1 Record of the Federal Convention of 1787, P. 302. Perhaps Alexander Hamilton was also a “holdout”.

*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.

Owners' Counsel of America Honors Appellate Attorney, Michael Berger, for his Dedication to Protecting Property Rights

2011-02-24T10:23:00.011-05:00

Pictured above from left to right: Andrew Prince Brigham, Michael M. Berger, Edward G. Burg following the presentation of the Crystal Eagle Award.

Pictured below: Michael M. Berger addressing the members of the Owners' Counsel of America.

(Photo Credit: Chris Trinidad)

Coral Gables, FL -- On February 19, 2011, the Owners' Counsel of America honored appellate and condemnation attorney, Michael M. Berger, Esq., with the Crystal Eagle Award for his devotion to defending Americans and their private property in eminent domain, regulatory takings, inverse condemnation, land use litigation and on appeal. For more than 40 years, Michael Berger, has consistently sought to advance the cause of private property rights throughout California and the United States.

Michael Berger is a partner with Manatt, Phelps & Phillips, LLP in Los Angeles and is co-chair of Manatt's Appellate Practice Group. Mr. Berger is not only one of the country’s preeminent appellate lawyers, but also one of the nation’s top condemnation and land use attorneys. In addition to eminent domain and property rights matters, his appellate cases have also involved planning, zoning, defective construction, landslides, due process, equal protection, contract, nuisance, insurance, business litigation and environmental law.

Throughout his remarkable career, Mr. Berger has argued four cases before the United States Supreme Court as well as cases before appellate courts throughout California, the federal courts of appeal and various state supreme courts. Mr. Berger has appeared before the U.S. Supreme Court in each of these well-known property rights cases: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), Preseault v. ICC (1990) and First English Evangelical Lutheran Church v. County of Los Angeles (1987).

As a frequent author of amicus curiae briefs, Mr. Berger has advanced his clients’ interests in various appellate courts and the U.S. Supreme Court. In support of private ownership, he authored amicus briefs in some of the landmark property rights cases of our time, including Kelo v. City of New London (2005), Lingle v. Chevron USA, Inc. (2005), Lucas v. South Carolina Coastal Council (1992) and Nollan v. California Coastal Commission (1987).

Among his many honors, Washington University School of Law honored Mr. Berger with the Distinguished Law Alumni Award in 2008. Mr. Berger has been recognized as one of The Best Lawyers in America (2006-2011) and as one of the “Lawdragon 3000 Leading Lawyers in America” (2006). The American Law Institute - American Bar Association presented him with the Harrison Tweed Award for Special Merit in Continuing Legal Education in 1989.

Annually, the Owners’ Counsel of America identifies individuals who have made a substantial contribution toward advancing the cause of property rights and presents the Crystal Eagle Award. Past recipients include Gideon Kanner (Professor Emeritus, Loyola School of Law and Of-Counsel, Manatt, Phelps & Phillips, LLP), Dana Berliner (Senior Attorney, Institute for Justice), Alan Ackerman (Partner, Ackerman, Ackerman & Dynkowski, P.C. Bloomfield Hills, Michigan), Professor James Ely (Vanderbilt University and author of The Guardian of Every Other Right), Dean Starkman, Dennis Hartig and Norman Oder (Journalists), as well as Sean Hannity and Alan Colmes (former co-hosts of Hannity & Colmes, Fox News Channel).

Disclosure: Michael Berger is an eminent domain and appellate attorney affiliated as an Honorary Member with the Owners' Counsel of America.

Eminent domain quote of the week: "I don't like beets."

2011-02-15T09:41:00.003-05:00

Yesterday, Associated Press journalist Sandra Chereb quoted Nevada Assemblyman William Horne, D-Las Vegas, as saying that he is not opposed to a bill that would strip mining companies and Nevada's sugar beet industry of the power of eminent: "I don't have any opposition to the bill," he quipped. "I don't like beets."

SB86 sponsored by Nevada State Senator Sheila Leslie, D-Reno, seeks to repeal a law that dates back to a time when mining and sugar beets were two of the major industries in Nevada. Sugar beets have not been grown in the State since the 1960s.

From Chereb's article:

Eminent domain should be reserved for promoting the greater community good and not the interests of private companies, [Sen.] Leslie said.

"This is not about the greater good but the private corporate interest," she testified before the Senate Judiciary Committee.

Assemblyman Horne has sponsored a similar bill in the Assembly that would repeal the mining industry's power of eminent domain. His bill does not include a provision striping the defunct sugar beet industry of condemnation power as in SB86. AP reporter Chereb writes that Horne testified on Monday in support of Senator Leslie's bill, hence his comment - "I don't like beets." While Horne's words may not be the most eloquent in support of property rights or in opposition to the use of eminent domain for private enterprise, his quote certainly is memorable.

Read the entire AP article here.

Battle of Brooklyn eminent domain documentary preview at ALI-ABA 2011

2011-02-11T14:28:00.007-05:00

We have just heard that a documentary concerning the Atlantic Yards Project (we have discussed AY numerous times on this blog, including here and here) will be previewing at the ALI-ABA Eminent Domain and Land Valuation Litigation course next week in Coral Gables, FL. If you have not registered, there is still time and here's another reason why this course is so unique.

EXCLUSIVE: Sneak Peak Screening of Controversial Eminent Domain Documentary - BATTLE of BROOKLYN

Battle of Brooklyn chronicles the seven year fight to stop the use of eminent domain in the single densest development proposed in U.S. history, the infamous Atlantic Yards Project.

Battle of Brooklyn is a compelling human story set against the backdrop of an important social issue. Don’t miss the chance to see and discuss it with your friends and colleagues at our conference.
-Leslie Fields, Esq.

Screening times:

Wednesday Feb 16th: 5:30pm - Hyatt Regency, Coral Gables

Friday Feb 18th: 5:30pm - Hyatt Regency, Coral Gables

Running time is 90 minutes.

*The filmmakers will be present to discuss the film Thursday during the 5:30 Participant Reception and Friday following the screening.

Note: the film also features ALI-ABA faculty presenter and NYC attorney Norman Siegel.

Attorney for the property owners, Michael Rikon says: "The Battle of Brooklyn is a very important film because it graphically shows how disenfranchised property owners are when confronted with condemnation...This is the best narrative of eminent domain abuse ever made. It is a must for any one seriously interested in Urban Planning."

About BATTLE of BROOKLYN

The film is a close-range look at the fight to stop condemnation waged by property owners and residents living in the footprint of the Atlantic Yards Project, a massive real estate development proposal to build 16 skyscrapers and a basketball arena for the New Jersey Nets in the heart of Brooklyn.

Daniel Goldstein's apartment sits at what would be center court of the new arena. He is dragged into the fight because he simply can't believe that the government should use the power of Eminent Domain to take his property and hand it off to a private developer. He and others form a community activist group to develop alternative plans to the proposal and to expose misconceptions about the project in the media. Going up against the largest publicly traded real estate developer in the U.S., a mayor, and Russian oligarch (all billionaires), he wages an all out battle to stop the project and takes his case to the State's highest court of law.

Along the way, Daniel falls in love, gets married and starts a family. Compiled from almost 500 hours of footage, Battle of Brooklyn is an epic tale of how far people will go to fight for what they believe in.

You can view the trailer at rumur.com/battle

About The Filmmakers

As an award-winning multimedia production studio, RUMUR Inc, has collaborated with such high profile clients as HBO, A&E, IFC, PBS, AOL, The New York Times, The New York Public Library and the NYC Department of Education to produce feature films, mini-series, industrial commercials, and web applications. Previous films have been short-listed for Academy Award consideration.

RUMUR has a reputation for producing and distributing provocative documentaries that both garner critical acclaim and have the power to move people to action. Battle of Brooklyn will be the centerpiece of a campaign to re-examine state laws regarding eminent domain and property rights.

For more information visit rumur.com/about

[Disclosure: Leslie Fields and Michael Rikon are eminent domain attorneys affiliated with Owners' Counsel of America. Ms. Fields represents property owners throughout Colorado and Mr. Rikon represents owners in the state of New York.]

Eminent Domain & Land Valuation Litigation seminar scheduled for February 17-19, 2011

2011-02-04T11:02:00.003-05:00

The 28th Annual American Law Institute-American Bar Association (ALI-ABA) Eminent Domain & Land Valuation Litigation Course will take place Thursday, February 17 - Saturday, February 19, 2011 at the Hyatt Regency in Coral Gables, Florida. The course runs concurrently with ALI-ABA's annual Course of Study, Condemnation 101: Making the Complex Simple in Eminent Domain.

The Eminent Domain course is an advanced level continuing legal education course that features 25 sessions focusing on key issues in eminent domain and property valuation litigation. Some of this years topics including the following:

• Case Study on Columbia University: Defending Against Private Development

• The Interplay Between the Due Process Clause and the Takings Clause

• Challenges and Issues Facing our Departments of Transportation across the Nation

• Ways To Handle the Valuation of Difficult Properties

• High-Voltage Transmission Lines and Their Effects on Residential Property Values

• Right of Way Changes Without a Physical Taking: Is There an Inverse Condemnation Claim?

Condemnation 101 provides an introduction or refresher to basic concepts and techniques of preparing and presenting a condemnation case. This course of study aims at simplifying the complexity of an eminent domain case from initial case planning, understanding core valuation concepts, working with valuation experts, preparing a case to win, and pursuing resolution through mediation or trial.

Interested? There is still time to register. Contact ALI-ABA at (800) 253-6397 or register online here.

Special Offer: Attend Eminent Domain and Land Valuation Litigation and bring an associate to Condemnation 101 for 50% off.

Owners' Counsel of America launches new website

2011-02-02T16:18:00.001-05:00

The Owners' Counsel of America unveiled its redesigned website, www.ownerscounsel.com, a dynamic new site designed to connect property owners facing eminent domain, inverse condemnation, and other forms of property takings with an experienced and skilled condemnation attorney in nearly every state. The site has been expanded to include additional information and resources for property owners facing condemnation as well as an interactive map that will direct property owners to an experienced eminent domain attorney in their state. To visit the new site, click here.

St. Louis family business secures $5.3 from MoDOT in condemnation case

2011-01-19T14:06:00.005-05:00

A St. Louis-based frozen food company, M & L Foods, Inc., recently secured a $5.3 million from the Missouri Department of Transportation to settle an eminent domain case that required the company give up its entire property and relocate its business. MoDOT condemned the M & L property for the construction of a new Interstate 70 Mississippi River Bridge. M & L's attorney, Robert Denlow, explained that the settlement funds will allow M & L Foods to relocate within the city and continue operating this St. Louis-based business after more than 100 years. [Disclosure: Robert Denlow is the Missouri Member of the Owners' Counsel of America.]

M & L's property consisted of nearly two acres and included a 26,795-square-foot building that housed the company's headquarters and served as its wholesale distribution center. MoDOT condemned the property to construct the western approaches to the new bridge. MoDOT's initial offer was $1.9 million, which Mr. Denlow argued, was not enough to relocate the business or allow it to construct a new replacement facility.

“Just because a building can be sold for something doesn’t mean there’s a replacement right around the corner,” said Denlow. “The $5.3 million is what we believe it would cost to replace the existing facility.”

“We looked at it as more than just bricks and mortar. It would have been easier and cheaper for them just to go elsewhere, but they were committed to being part of the St. Louis fabric,” Denlow said. He explained that M & L needed to be in the city near its original location in order to continue servicing the company's clientele.

Mr. Denlow credits MoDOT and its attorney, Paul Sterrett, for working to reach this settlement with his client. Denlow called it "a terrific result" for the two families who own the business and their 33 employees.

More details about this settlement are available in Missouri Lawyers Media under Verdicts & Settlements for January 16, 2011.

8th Annual Brigham-Kanner Property Rights Conference Launches Website

2011-01-11T11:59:00.004-05:00

The 8th Annual Brigham-Kanner Property Rights Conference has launched a new website www.bkconference.com (note: click to enter the site) with details about the upcoming conference in Beijing, China October 14-15, 2011. The site lists the conference discussion topics as well as biographies of some of the speakers scheduled to appear. More details including the Schedule of Events, Conference Logistics and additional information concerning speakers are expected to be updated soon.

New York Court awards $3.4 million in fees and costs to Mobil Oil in eminent domain action

2011-01-06T15:00:00.007-05:00

New York, NY - Attorneys from the New York law firm of Goldstein, Rikon & Rikon, the only law firm in New York practicing exclusively in the area of condemnation law, recently obtained a decision of more than $3.4 million for Exxon Mobil Oil Corp. in what is believed to be the largest award made under Section 701 of New York’s Eminent Domain Procedure Law. (Read the full press release here.)

The order (embedded below) issued by the Honorable Abraham Gerges of the Supreme Court of Kings County (2010 NY Slip Op 20498) awarded Exxon Mobil $3,474,176.00 for legal fees, expert fees and disbursements in addition to an amount previously awarded as just compensation for the taking of Mobil's property for the Newtown Creek Water Pollution Control Plant. When the additional allowance under Section 701 of $3,474,176 for fees, costs and disbursements is added to the $14,298,616 award obtained for Exxon Mobil after trial (Mobil Oil v. City of New York, New York Supreme Court, Docket No. 08-03302), the total recovery for Exxon Mobil in this case was $17,772,792. Upon appeal, the trial award was affirmed by the Supreme Court’s Appellate Division, Second Department.

Court Order In Re Newtown Creek Water Pollution Control Plant Upgrade (Eminent Domain Taking)

“In 1987, the Eminent Domain Procedure Law was amended with Section 701 to provide that when an award in a condemnation proceeding was substantially in excess of the condemnor's proof on the trial, the trial court could award a claimant an additional allowance to cover litigation expenses,” said Michael Rikon, an eminent domain attorney and partner at Goldstein, Rikon & Rikon. “We are very pleased to achieve this remarkable award reimbursing our client for their legal fees, expert fees and disbursements in their litigation against the City of New York. Hopefully, condemning agencies will think twice about making low-ball and unfair offers to property owners.” [Disclosure: Michael Rikon is the New York Member of Owners' Counsel of America.]

As a result of Mobil Oil v. City of New York, New York state adopted a rule excluding evidence of remediation costs for contaminated property from eminent domain proceedings. In the case of Mobil, the company had experienced a petroleum spill on the site approximately 7 years prior to the initiation of condemnation. After the spill occurred, Mobil entered into consent decrees with both the State and City of New York that required the oil company to create and comply with a remediation program for which Mobil was financially responsible. By the time the City condemned the property in 1997, most of the spilled material had been recovered from the site and the site was substantially clean. Yet, after condemning the property the City filed a separate suit seeking the costs of clean-up, removal, remediation and damages for the property that had since completed the remediation process.

In its appellate opinion, the Court found that "it would be 'fundamentally unfair' to allow the City to value the property as contaminated for condemnation purposes, and yet still recover the remediation costs." The Court quoted from a similar and, at the time, recent case out of New Jersey, Housing Auth. of City of New Brunswick v. Suydam Inv., in which the New Jersey Supreme Court found that devaluing a property in condemnation so that the property is purchased at a discounted rate while also subjecting the former owner to all cleanup costs equates to a "double-take."

More about this Mobil Oil condemnation case and the topic of valuing contaminated property in eminent domain is available in Current Condemnation Law: Takings, Compensation and Benefits, By Alan T. Ackerman and Darius W. Dynkowski. Chapter 3 focuses upon the valuation of contaminated property in condemnation and Section VI of that chapter discusses the Mobil Oil case specifically. [Disclosure: Alan Ackerman is the Michigan Member of Owners' Counsel of America.]

Property rights: Protection for the little guy (and gal) until taken by eminent domain

2010-12-20T09:22:00.005-05:00

Friday's New York Post includes an article by Glenn Harlan Reynolds about the Columbia University eminent domain case and the recent Supreme Court decision to deny cert. Mr. Reynolds discusses the importance of property rights and how the term "public use" has been redefined by the courts "to include pretty much anything the government wants to do with the property." He argues that the power of eminent domain has been used less as a tool to affect public purpose and more a method "to promote the 'vision' of...the powerful and the connected."

We often hear politicians and pundits denounce property rights. Property rights, we're told, protect the fat cats against the needs of the public. They're a tool for keeping the little guy down.
Like a lot of what we hear from politicians and pundits, this is exactly the opposite of the truth. The fat cats don't need the protection of property rights, because they already control the political system. It's the little guy (or gal), the one without political juice, who needs strong property rights for protection from the fat cats and the politicians they control.
* * *
The courts are supposed to be there to protect the rest: The people without the connections, the ones who depend on the rule of law to keep the predators away.
That protection has never been perfect, of course, but in the area of eminent domain it's become a sick joke. The message sent is that your property belongs to you -- until somebody with more clout wants it for something else, be it a "vision," or a moneymaking scheme.

Supreme Court denied cert in Columbia University eminent domain case

2010-12-14T09:52:00.004-05:00

Yesterday, the U.S. Supreme Court declined to hear the Columbia University eminent domain case Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010).

As Charles V. Bagli wrote in Columbia Wins Fight for West Harlem Campus yesterday, the Court's refusal to hear this appeal has effectively ended the six year battle fought by the property owners to preserve their private property rights and retain ownership of their land.

Mr. Bagli quotes lead Plaintiff/property owner, Nick Sprayregen, in his article.

In all likelihood, Mr. Sprayregen said Monday, the battle is over. “The Supreme Court let stand an abuse of eminent domain taking place in New York,” he said. “We had hoped for a different result. This is truly a dark day for all Americans who care about the sanctity of private property rights.”

For more about this case see our previous posts here and here. See also Norman Oder's post announcing the Court's denial of certiorari at the Atlantic Yards Report; a post by Robert Thomas with links to previous discussions and all briefs filed in the case at inversecondemnation.com; and New Jersey Condemnation Law blog on the Court's refusal to grant cert.

[Disclosure: Robert Thomas is the OCA Hawaii Member. The New Jersey Condemnation Law blog is managed by McKirdy & Riskin, Edward McKirdy is the OCA New Jersey Member.]

Property owner in Columbia expansion case likens the use of eminent domain to "highway robbery"

2010-12-10T07:41:00.005-05:00

Nick Sprayregen, owner of Tuck It Away, the lead plaintiff in the Columbia eminent domain case on petition for certiorari to the Supreme Court, explains in the Youtube video above how New York state's eminent domain procedures favor the condemnors and deny property owners due process of law.

Earlier this week Mr. Sprayregen wrote why the Court should grant cert in the Huffington Post. Here's an excerpt:

I am asking the court to take specific action and stop the taking through eminent domain of my property by an unelected agency of the state of New York merely to give it to a politically powerful private entity. If I am unsuccessful, the fate of my family business could be the fate of your home, your family business or any other property you and your family own.

* * * *

It is my belief that our highest court should take this case and show that the judiciary needs to protect the rights of all citizens against the tyranny that results from the collusion between executive and legislative branches of our government with favored private entities. It is exactly this responsibility that formed the basis of the checks and balances as laid out in our constitution. Nowadays, courts routinely abdicate their constitutionally mandated responsibilities and merely rubber stamp back-room deals made between our government and favored clients on the grounds that they must defer to decisions made by the other branches of our government.

As envisioned in our constitution, eminent domain is supposed to be for public uses -- projects the public will own and use -- such as a road or a post office. Eminent domain is not for private institutions like Columbia to expand their profit-making efforts beyond what the free market would allow. I believe that what Columbia has been trying to do is illegal, and I hope our highest court will agree. However, regardless of the outcome of my case, I know that what Columbia and New York have done to the people of West Harlem is unfair and un-American.

Another video to watch concerning the Columbia University eminent domain case and the New York State Appellate Court hearing (the Court that found in favor of the owners before NY's highest court overturned) is posted on Youtube here.

Columbia eminent domain case: One of the Supreme Court "Petitions to Watch"

2010-12-09T23:28:00.008-05:00

SCOTUSblog has included the Columbia University eminent domain case Tuck-It-Away, Inc. v. New York State Urban Development Corporation, dba Empire State Development Corporation, Docket 10-402 in this week's edition of "Petitions to Watch." The petition for certiorari filed by these Harlem property owners will be included among the many the Court will consider when the Justices conference tomorrow, December 10. The Justices' decisions to grant or deny will be released on Monday, December 13.

This case concerns the proposed expansion of Columbia University into a Harlem neighborhood by way of the Empire State Development Corporation (ESDC), the same agency that enabled Forest City Ratner to take private homes and businesses for the Atlantic Yards arena and multi-use redevelopment. In New York, the ESDC is a governmental agency with the power of eminent domain. Similar to the Atlantic Yards case, the property owners in the Columbia expansion have disputed the ESDC's blight study and findings that their properties are blighted. Additionally, the property owners in the Columbia case presented evidence of pretext in the record on the part of the condemnors (ESDC and Columbia), which was considered by the Appellate Division and that court struck down the taking. On appeal, the NY Court of Appeals (the state's highest court) held that judicial review of the record in the exercise of eminent domain was improper, and that the question of whether property can be taken because it is found to be "substandard or insanitary" is a one for the taking agencies rather than the courts.

The property owners' petition for certiorari poses two Questions Presented:

This Petition should be granted to address two urgent questions arising from the Court of Appeals of New York's dismissal of Petitioners' challenge to the legitimacy of the governmental takings at issue in this case:

1. Whether it was error for the Court of Appeals of New York to disregard the principles enunciated in Kelo v. City of New London, 545 U.S. 469 (2005) in sanctioning the use of eminent domain for the benefit of a private developer, when the circumstances presented by the instant case exemplify the very bad faith, pretext, and favoritism that this Court warned could result if Kelo's safeguards were ignored?

2. Whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States imposes any minimum procedural standards, in accordance with the requirement of fundamental fairness, to preserve a property owner's meaningful opportunity to be heard within the context of an eminent domain taking?

On his Atlantic Yards Report blog, Journalist Norman Oder has provided a bit of history of the Columbia case as well as presented a detailed summary and analysis of the issues. Additionally,
Robert Thomas has posted the cert petition and subsequent briefs on his inversecondemnation blog here. Both blogs are recommended reading. [Disclosure: Robert Thomas is the Hawaii Member of the Owners' Counsel of America.]

More on Monday when the Conference results are released.

Hawaii ICA: Oral arguments in Leone v. County of Maui property rights case

2010-12-09T10:33:00.009-05:00

Yesterday, eminent domain and land use attorney, Robert Thomas, live blogged the oral arguments held before the Hawaii Intermediate Court of Appeals on a closely watched takings case in Hawaii. Robert, along with his Damon Key colleagues Mark Murakami and Rebecca Copeland, provided live commentary and background while simultaneously following the arguments. If you missed the live blog yesterday, you can replay the commentary, review the issues surrounding the case and read all of the briefs filed on Robert's inversecondemnation blog here. [Disclosure: Robert Thomas is the Hawaii Member of Owners' Counsel of America. Robert also filed an amicus brief on behalf of the Pacific Legal Foundation in support of the property owner.]

This case involves a federal regulatory takings claim and also concerns the issue of ripeness under Williamson Planning Comm'n v. Hamilton Bank (U.S. 1985). Borrowing from Robert's post yesterday: "Leone v. County of Maui, No. 2969 is a case that has U.S. Supreme Court potential if the Hawaii courts don't get it right and is definitely one to watch. In that case, Maui beachfront property owners' federal regulatory takings claims were dismissed by a state trial court because the court concluded the property owners had not exhausted their administrative remedies." In short, what must a landowner with a taking claim do before he may have his day in court?

A ruling is expected early next year and we'll be watching for it.

Connecticut Bar Association: 5th Annual Property Rights Seminar this week

2010-12-06T11:46:00.008-05:00

On Wednesday, the Connecticut Bar Association will hold the Fifth Annual Property Rights Seminar: Update on Eminent Domain and Regulatory Takings at the Connecticut Bar Association Law Center in New Britain, CT.

The chair of this full-day CLE program is Dwight H. Merriam, FAICP, CRE, of Robinson & Cole LLP, in Hartford. The seminar's focus is practical and theoretical, with "take-home" value for practitioners who need the basics or wish to advance to the next level. The following program faculty will speak throughout the day:

Timothy Barnes, CRE, Cushman & Wakefield, Inc., New York, NY
Mark K. Branse, Branse Willis & Knapp LLC, Glastonbury
Joseph L. Clasen, Robinson & Cole LLP, Stamford
William H. Clendenen, Clendenen & Shea LLC, New Haven
Robert A. Fuller, Law Offices of Robert A. Fuller, Wilton
David S. Hardy, Carmody & Torrance LLP, New Haven
Timothy S. Hollister, Shipman & Goodwin LLP, Hartford
Wesley W. Horton, Horton Shields & Knox PC, Hartford
Robert T. Morrin, Law Office of Robert T. Morrin, New Britain
Robert S. Poliner, Law Office of Robert S. Poliner, Durham (former CT Ombudsman for Property Rights)
Brian R. Smith, Robinson & Cole LLP, Hartford
Benson A. Snaider, Law Office of Benson A. Snaider PC, New Haven

The program will address the recent developments in regulatory and eminent domain takings on both the state and national level. Sessions will focus on a variety of condemnation and regulatory takings issues including the recent U.S. Supreme Court decision in Stop the Beach Renourishment v. Florida Dept. of Environmental Protection as well as the jury verdict and subsequent appellate court and Connecticut Supreme Court decisions in the Branford takings cases.

Register online here.

Justice Sandra Day O'Connor will be honored with the 2011 Brigham-Kanner Property Rights Prize

2010-12-03T12:15:00.011-05:00

William & Mary Law School has announced that Justice Sandra Day O'Connor will receive the 2011 Brigham-Kanner Property Rights Prize at the 8th annual Brigham-Kanner Property Rights conference, scheduled for October 14-15, 2011 in Beijing. The 2011 conference is co-sponsored by Tsinghua University School of Law and will take place during the university's 100th anniversary celebration. The faculty of Tsinghua University School of Law includes many of China's most noted scholars. Its distinguished graduates include Judges Tieya Wang and Ruao Mei, and Justice Duanmu Zheng of the Supreme People's Court.

Justice O'Connor served as an associate justice of the United States Supreme Court from 1981 to 2006. She became Chancellor of the College of William & Mary following her retirement from the judiciary. In May 2010, the William & Mary Law School faculty awarded her its highest honor, the Marshall-Wythe Medallion, in recognition of her exceptional accomplishments and leadership.

Justice O'Connor will be joined in Beijing by all seven previous recipients of the Brigham-Kanner Property Rights Prize will participate in the 8th annual conference in Beijing. The past recipients include: Professor Frank I. Michelman, Harvard Law School (2004), Professor Richard A. Epstein, University of Chicago Law School (2005), Professor James W. Ely, Jr., Vanderbilt Law School (2006), Professor Margaret Jane Radin, University of Michigan Law School (2007), Professor Robert C. Ellickson, Yale Law School (2008), and Professor Richard E. Pipes, Harvard University (2009) and Professor Carol M. Rose, University of Arizona James E. Rogers College of Law (2010). Additionally, it is expected that the eminent domain attorneys and property rights advocates after whom the prize has been named, Toby Prince Brigham and Gideon Kanner, will also attend this historical international conference in Beijing.

"I am delighted that Justice O'Connor will allow us to recognize her contributions to property law jurisprudence and that she has agreed to travel to Beijing to receive the award and to attend the conference," said William & Mary Law School Dean Davison M. Douglas. O'Connor's nomination in 1981 as the Supreme Court's first female justice, he said, ranked "among the momentous events in American history," and she was "one of the Court's most influential justices of the past half century."

More to come regarding the events, speakers and activities planned for the 2011 Brigham-Kanner Property Rights Conference. You may also contact the William & Mary Property Rights Project via the Office of Development and Alumni Affairs or (757) 221 - 3796 for additional details.

Can TransCanada's Keystone Pipeline take private property by eminent domain?

2010-11-30T15:45:00.014-05:00

Question: Can TransCanada's Keystone Pipeline take private property in America by eminent domain?

Answer: Yes, corporate Canadian energy giant, TransCanada, can effectively take private property from American citizens using the power of eminent domain.

Utility providers such as natural gas, electric, telecommunications and water/sewer companies generally may be granted the power of eminent domain by the local, state or federal government for the purpose of constructing utility infrastructure that is considered a public purpose or having public benefit. The power of eminent domain may be bestowed upon such utility companies, whether considered private or public, by statute and often must be approved by government regulatory agencies, such as FERC in the case of pipelines and transmission projects. Because eminent domain laws and procedures vary from state to state, there may be a number of prerequisites required of companies seeking to use eminent domain for these projects.

TransCanada's Keystone Pipeline and Kestone XL Pipeline projects have recently been the topic of considerable concern and debate because TransCanada is a private foreign company. However, as a foreign company doing business in the U.S. as a common carrier of utilities, TransCanada has and will most likely continue to be granted the power of eminent domain to acquire the necessary easements for the construction of the Keystone pipelines as well as other infrastructure projects throughout the United States as long as TransCanada obtains the required authorizations from all necessary federal and state agencies. Eminent domain attorney Anthony Della Pelle of New Jersey law firm McKirdy & Riskin, PA discusses how TransCanada obtains the power of eminent domain on Fox and Friends in the the link above. [Disclosure: Edward McKirdy of McKirdy & Riskin is the New Jersey member of the Owners' Counsel of America.]

The TransCanada Keystone Pipeline stretches from Alberta, Canada through North Dakota, South Dakota, Nebraska, Kansas, Missouri and Illinois. The Keystone XL Pipeline has been designed as an extension of the Keystone Pipeline and will run from Canada through the Midwestern United States through Oklahoma and Texas ending at the Texas Gulf Coast.

TransCanada also has plans to construct high-voltage direct current (HVDC) transmission projects originating in Wyoming and Montana and extending to Nevada. The proposed Zephyr and Chinook Power Transmission Lines would transport wind-generated electricity to markets in the Southwest United States.

While the utility company may acquire the power to use eminent domain to take property for such projects, the US Constitution and state constitutions require that condemnors who acquire private property for a public purpose must pay the property owner just compensation for the taking. Negotiating and/or litigating to achieve just compensation is often a complex process and can be complicated by impacts of the project upon the property itself among other issues. Property owners facing the disruption of property rights, the quite enjoyment of private property and possibly the threat of eminent domain due to TransCanada's proposed infrastructure projects or other pipeline or transmission line projects may wish to seek the counsel of an experienced eminent domain attorney to navigate the acquisition and valuation process. [Disclosure: A number of attorneys affiliated with the Owners' Counsel of America have represented or currently represent private property owners in eminent domain proceedings against TransCanada in Nebraska, Missouri, Kansas, and Oklahoma.]

For more information on the Keystone Pipeline Projects see:

Can a foreign corporation use eminent domain on U.S. land?

Nebraska Politicos Speaking Up on TransCanada; SD Pols Asleep at Switch

TransCanada Pipeline Causes Controversy

Nebraska Senator Asks State Department to Reroute oil Sands Pipeline

Arkansas jury awards property owners largest-ever condemnation verdict

2010-11-18T14:19:00.007-05:00

In late August of this year, a jury in Benton County, Arkansas awarded $4.67 million to property owners as just compensation for the taking of their private property. The property totaling 19.26 acres was owned by Thomas and Judith Terrell and was taken by eminent domain in order to construct the Bella Vista Toll Facility, also known as the Bella Vista Bypass. According to the Arkansas State Highway & Transportation Department’s public information office, this verdict is the largest ever against the Arkansas State Highway Commission in a condemnation case.

In 2007, the AR Highway commission condemned 19.26 acres which represented only a portion of the Terrell’s 72.89 acres in Bentonville. The property owners' attorneys successfully argued that this partial taking resulted in severely limited access to the remaining 53.63 acres of the property and damaged the value of the remainder parcel. The Arkansas State Highway Commission offered the Terrells $1,132,100.00 for the acquisition. While the property owners presented valuation evidence totaling $5.6 million dollars as just compensation for the taking.

The Bella Vista Bypass will connect Arkansas and Missouri with an interstate highway that will eventually be part of I-49. The proposed bypass is about 20 miles long, extending from U.S. 71 just south of Bella Vista to U.S. 71 near Pineville, Mo. While there is little media discussion surrounding the highway commission's low ball offer or this historical jury verdict, a press release announcing the verdict can be found online here.

Mr. and Mrs. Terrell were represented by Michael B. Phillips and Brandon Moffitt of Moffitt & Phillips, PLLC in Little Rock, Arkansas. Moffitt & Phillips is a boutique litigation firm that, among other practices, represents property owners throughout Arkansas in eminent domain proceedings.

OCA Attorney Edward D. McKirdy Honored as "Lawyer of the Year"

2010-10-29T15:04:00.006-04:00

Edward D. McKirdy, OCA New Jersey Member and founding partner of McKirdy & Riskin in Morristown, NJ has been named as the “Newark Area Best Lawyers Eminent Domain and Condemnation Lawyer of the Year” for 2011 by Best Lawyers, the oldest and most respected peer-review publication in the legal profession. For over 40 years, EdMcKirdy has dedicated his practice to the representation of New Jersey property owners in eminent domain, redevelopment, and property tax assessment matters.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 17th edition of The Best Lawyers in America (2011) is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.

The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in our surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.

Steven Naifeh, President of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Edward D. McKirdy on being selected as the ‘Newark Area Best Lawyers Eminent Domain and Condemnation Lawyer of the Year’ for 2011.”

Follow up: The Wacky & Wonderful World of Eminent Domain After Kelo

2010-10-22T11:52:00.013-04:00

Yesterday's webinar "The Wacky & Wonderful World of Eminent Domain After Kelo" packed a lot of information into one quick hour. Speakers Robert Thomas, partner at Damon, Key, Leong, Kupchak, Hastert in Honolulu, Hawaii, and Andrew Schwartz, partner at Shute, Mihaly & Weinberger in San Francisco, California, presented their opposing viewpoints on the use of eminent domain for redevelopment. [Disclosure: Robert Thomas is the OCA member from the Aloha state.]

Robert Thomas titled his presentation "Schlimmbesserung - Eminent Domain for Redevelopment." As Robert explained schlimmbesserung is one of those German words that does not translate directly to an English word and essentially means "to make worse by improving." As Robert explained yesterday and in his blog post here, schlimmbesserung or worsening by improvement describes how he sees the more infamous eminent domain for redevelopment projects such as Kelo and Poletown.

A point that we would like to mention from Robert's discussion: the Supreme Court in Kelo did not unequivocally permit eminent domain for economic development. Rather, the Court indicated that economic development might be a public use. Further, in Kelo the Court points to pretext and found that economic development as a pretext to hide a private benefit is not public use. The Court ultimately required lower courts to review the reasons for a taking to examine the benefit and determine whether the taking is truly for the public use or a pretext hiding a private use/benefit.

Robert's PowerPoint presentation is available below for review or download and has also been posted on his blog here.

Uconn cre thomas_slides_10-2010

View more presentations from inversecondemnation.

The second speaker, Andrew Schwartz, approached redevelopment from a different angle and spoke of the "bigger picture." Andrew argued that redevelopment is a tool used by the government to address situations of market failure. He suggested that for every redevelopment project that fails, 10 succeed. Andrew explained that in California, his home state, redevelopment has been enormously successful in creating affordable housing. He spoke of redevelopment, particularly "infill" redevelopment whereby underutilized or vacant property within an urban area is developed to craft a complete well-functioning neighborhood, as beneficial on climate change as it reduces sprawl. Finally, he argued that Kelo was only a "partial failure of redevelopment." While we do not have a copy of Andrew's PowerPoint that we can share at this time, we will do so if it becomes available.

In the end, the adage: "Beauty is in the eye of the beholder" comes to mind here. One man's underutilized parcel is another man's castle, home or business, while one individuals' well-traveled sidewalk is another's cracked and blighted eyesore. And, finally, while Pfizer may have built a beautiful 33-acre waterfront office complex (that it later announced it would vacate), schlimmbesserung really does seem to describe the redevelopment project initiated by the the New London Development Corporation to bring economic development and increased tax revenues to New London.

The webinar was sponsored by the Counselors of Real Estate, the University of Connecticut, and Robinson & Cole as part of the 2010 Real Estate Teleconference Series and we are looking forward to participating in more interesting conversations within this series.

We also recommend that you read Redevelopment's Dismal Story posted by Professor Gideon Kanner at his blog, Gideon's Trumpet.

Update: I-69 Informational meeting for affected property owners in Indiana

2010-10-21T13:37:00.009-04:00

The Princeton Daily Clarion newspaper published an article this morning recapping the meeting held last night in Oakland City, Indiana to inform property owners of their rights and options in eminent domain and on the potential impacts of the proposed I-69 Corridor Project connecting Evansville to Indianapolis.

Some key points from the news article Advice sought on I-69 eminent domain:

INDOT, in the interest of being responsible stewards of public money, may initially offer low purchase prices for private property needed for this project. Often, these initial offers do not take into account the full value of the property at its highest and best use and the effect the taking would have on the value of remaining property.

Property owners who will be affected by the project or who have already received offers to purchase their property from INDOT should locate a skilled eminent domain attorney, particularly one who has experience with INDOT. A lawyer experienced in condemnation law and in litigating with condemning authorities, such as INDOT, can assist property owners by navigating the complexities of the eminent domain process and securing just compensation, which may include relocation costs.

Many attorneys will defend a property owner in an eminent domain suit on a contingency fee basis - requesting as their fee a percentage of the compensation amount awarded above the initial offer. Additionally, Indiana's eminent domain law IC 32-24-4.5, passed in 2006, provides that if there is a trial and the amount of damages awarded to the owner is greater than the amount specified in the last offer of settlement made by the condemnor, the court shall require the condemnor to pay the owner's litigation expenses, including reasonable attorney's fees, in an amount that does not exceed twenty-five percent (25%) of the cost of the acquisition.

CRE-UCONN Webinar: The Whacky & Wonderful World of Eminent Domain After Kelo

2010-10-20T15:12:00.004-04:00

Tomorrow, October 21, 2010, from Noon to 1:00 PM (Eastern) the Counselors of Real Estate in conjunction with University of Connecticut will host a webinar entitled "The Whacky & Wonderful World of Eminent Domain After Kelo."

OCA Member, Robert Thomas (Hawaii) will be speaking about what the Court in Kelo really decided, and how courts in the intervening five years have viewed the decision. On the panel with Mr. Thomas will be Andrew W. Schwartz, from San Francisco's Shute, Mihaly & Weinberger. The session will be moderated by John Clapp, Ph.D. of the UConn Center for Real Estate, and Michele Maresca, a land use attorney at Robinson & Cole in Hartford.

This webinar has been offered as part of the 2010 Real Estate Teleconference Series sponsored by the Counselors of Real Estate and Robinson & Cole. Here's a description of the program:

The Supreme Court's decision in Kelo v. City of New London has been viewed by property rights advocates as the virtual gutting of the Fifth Amendment's limits on the use of eminent domain for transfer to private developers, while advocates of governmental and redevelopment authority power have argued that the decision was simply the continuation of long-standing takings doctrine. Which is it? With the perspective that five years provides, this webinar will look at what the Court decided and what it didn't and recent cases where eminent domain was used for public/private partnerships.

Click here to download the registration form.

Informational meeting tonight on the impacts of the I-69 Corridor in Indiana

2010-10-20T12:04:00.005-04:00

I-69 Corridor - Proposed Route (Sections 1-6)

The Hoosier Environmental Council (HEC) will be hosting an informational forum concerning Indiana Department of Transportation's (INDOT) I-69 corridor project, a 142-mile highway connecting Indianapolis and Evansville. The meeting will take place at the Wirth Park Community Building in Oakland City, Wednesday, October 20, 2010 beginning at 6:30 PM. This event is geared toward private property owners and will provide Pike and Gibson County residents a chance to ask questions about how the Section 2 of the proposed I-69 project will affect them, their property, and their way of life. Note: this meeting is not sponsored by INDOT but by individuals and groups whose focus is upon environmental impacts, property rights and the use of eminent domain.

There is no cost for this informational meeting. However, the meeting sponsors do request that those wishing to participate register here.

Additional details for the meeting are as follows:

Wirth Park Community Building
Wirth Park
Oakland City, Indiana 47660

Pizza will be served at 6:30 PM CDT

Speakers will begin at 7:00 PM CDT

Speakers include:

Tim Maloney and Steven Meyer from HEC
Thomas Tokarski from Citizens for Appropriate Rural Roads (CARR)
Attorney Keith Guthrie of Elizabethtown, IN

This event is sponsored by:

Hoosier Environmental Council (HEC)
Citizens for Appropriate Rural Roads (CARR)
Pike-Gibson Citizens for Quality Environment

More details about this informational meeting are available at HEC's website here. See also the Bloomington Alternative here for a recap of a similar informational forum held in September.

Crusading against eminent domain: Nevada attorney, Kermitt Waters, a man of the people

2010-10-11T11:33:00.010-04:00

Eminent domain lawyer Kermitt Waters fights government efforts to take private land and strongly promotes the process of citizen ballot initiatives to “protect the people.”
Photo Credit: Steve Marcus, The Las Vegas Sun

Sunday (10/10/10), The Las Vegas Sun featured Owners' Counsel of America member and eminent domain attorney, Kermitt Waters, in a story titled Crusading eminent domain lawyer a man of the people. As Reporter Erin Dostal explained: "The cell phone won’t stop ringing. It is election season, after all, and it seems as if everybody from every party wants a piece of Kermitt Waters." Kermitt, however, is not running for political office and probably never will. He has and will continue to fight on behalf of the people and against special interests in his eminent domain practice, ballot initiatives and legislative reform.

As Ms. Dostal mentions in her article, Mr. Waters championed a petition initiative following the Supreme Court's ruling Kelo called PISTOL — the People’s Initiative to Stop the Taking of Our Land, also known as "The Property Owners' Bill of Rights." PISTOL, however, was not merely Nevada's response to Kelo but also Nevada's response to what Nevada property owners viewed as eminent domain abuse within their state as seen in the Nevada Supreme Court decision in City of Las Vegas Downtown Redevelopment Agency v. Pappas, which allowed the government to use its power of eminent domain to take private property from one owner and give it to another. (Kermitt Waters represented the Pappas family in the 1990s when the City of Las Vegas used eminent domain to buy the Pappas property to build a parking garage downtown.)

Because PISTOL was an amendment to the state constitution, Nevada law required it to be passed in two separate general elections and so it was placed on the ballot in both the 2006 and 2008 general elections. Subsequently and despite many legal challenges, Nevada voters overwhelmingly approved the PISTOL initiative (by nearly 70% in both elections). PISTOL is now encompassed within the Nevada Constitution, governing the use of eminent domain within in Nevada and includes safeguards for landowners that make it more difficult for state and local governments to take private property.

PISTOL is “going to stop government from financing public projects on the backs of landowners,” Waters told the Sun in 2006. “It is intended to protect the people, the politically and economically weak people who can’t fight back. This will keep the rich from robbing the poor.”

Amendments to PISTOL are on the November 2010 ballot as "Question 4." If is passes, Question 4 will water down the protections established by PISTOL. Differences between PISTOL and Question 4 include a clause that extends a requirement that property taken by eminent domain must be used within5 years or it will revert back to the owner and instead would permit governments to take 15 years before beginning work on acquired property and creates loopholes or exceptions for government to take private property for private transfer rather than purely public use and also weakens the PISTOL provisions governing just compensation for property owners. Despite Question 4's weakening of PISTOL's protections, Waters told the Sun that "95 percent of the initiative is still there — all the important, core parts."

Disclosure: Kermitt Waters is the Nevada Member of the Owners' Counsel of America and has defended Nevada property owners in eminent domain and inverse condemnation actions for over 40 years.

NY State Court of Claims: CSX entitled to $12.1 million in damages for property taken by eminent domain

2010-10-06T12:13:00.006-04:00

The following press release regarding a recent NY Court of Claims ruling awarding just compensation of $12.1 million to the property owner in an eminent domain action is available in its entirety here.

New York, New York (October 1, 2010) -- Attorneys from the New York law firm of Goldstein, Rikon & Rikon, the only law firm in New York practicing exclusively in the area of eminent domain and condemnation law, secured a $12.1 million award from the New York State Court of Claims for the permanent taking of easements owned by CSX Transportation, Inc.

The case, New York Central Lines v. State of New York (Claim No. 102648), was litigated in the New York State Court of Claims before the Honorable Alan C. Marin. Judge Marin's award to CSX Transportation (same entity as New York Central Lines) was for the actual amount of $12,104,006.00 and was filed on September 23, 2010.

In January 2000, the State appropriated a portion of what is known as the Freemont Secondary Line, a rail freight line that runs from the Oak Point Yard in the Bronx, across the East River via the Hell's Gate Bridge to Fresh Pond Junction in Queens. The State appropriated some 236,836 square feet in fee and 43,856 square feet by permanent easement. In addition, there were five temporary easements appropriated as well. The condemnation involved the demolition of three bridges, which were replaced with a longer span and new retaining walls.

Goldstein, Rikon & Rikon, P.C. represented CSX in filing a claim under New York's eminent domain law. Eminent domain refers to the government's power to take private property for a public use, provided that "just compensation" is paid. At trial, the State of New York took the position that no damages were due to CSX/New York Central Lines for any of the property it took by eminent domain.

"We were able to show that the bridges used by CSX, as of the taking, were functional and that there was no showing of any problem or variance from applicable standard or safety regulations," said Michael Rikon, an experienced eminent domain attorney and partner at Goldstein, Rikon & Rikon. "More importantly, the Court reiterated the well-established law in the State of New York that improvements to remaining land can never be used to offset the value of the land taken in eminent domain."

Disclosure: Michael Rikon is the New York member of the Owners' Counsel of America.

Prof. Carol Rose honored at 7th Annual Brigham-Kanner Property Rights Conference

2010-10-05T11:37:00.015-04:00

The seventh annual Brigham-Kanner Property Rights Conference and presentation of the 2010 Brigham-Kanner Property Rights Prize took place September 30 and October 1, 2010 at William & Mary Law School in Williamsburg, Virginia. The 2010 Conference included various panel discussions focused upon private property rights as well as the scholarship of the 2010 prize recipient, Carol Rose.

The 2010 Brigham-Kanner Property Rights Prize was presented to Professor Carol M. Rose, Ashby Lohse Chair in Water and Natural Resources at the University of Arizona James E. Rogers College of Law on September 30, 2010. Professor Rose is a graduate of Antioch College. She received a Ph.D. in history from Cornell and a J.D. from the University of Chicago. Before joining the faculty of the University of Arizona in 2005, Professor Rose held the position of Gordon Bradford Tweety Professor of Law and Organization at Yale Law School. Professor Rose has also held visiting professor and visiting scholar positions at a number of distinguished universities.

Professor Rose was awarded the prize on Thursday evening following a reception and dinner in the historic Sir Christopher Wren Building – America’s oldest academic building - on the William and Mary campus. William and Mary Law Professor Eric A. Kades, a former student of Professor Rose, spoke about Professor Rose, her scholarship and her teaching before the prize was awarded. In preparation for the event, Professor Kades solicited comments from fellow Yale law students who had taken Rose's course. Interestingly, he also located the course outline - yellowed and crinkled from his time in Prof. Rose's class.

The Conference began Friday morning with a panel discussion focusing upon the scholarship of Professor Rose. Panelists included Robert C. Ellickson, Walter E. Meyer Professor of Property and Urban Law, Yale Law School, Jedediah Purdy, Professor of Law, Duke Law School, Daniel J. Sharfstein, Associate Professor of Law, Vanderbilt Law School, and Henry E. Smith, Fessenden Professor of Law, Harvard Law School.

The second panel discussion, "Defining Just Compensation: How Do You Get There and What Does It Mean?," presented three varying perspectives on just compensation from the view of academia, practicing attorney and presiding judge. The panelists who discussed Just Compensation included James W. Ely, Jr., Professor of Law Emeritus, Vanderbilt University, Joseph T. Waldo, Attorney, Waldo & Lyle, P.C., and The Honorable Robert W. Wooldridge, Jr., (Retired) Fairfax Circuit Court Judge and Senior Lecturer in Law, George Mason Law School.

Friday afternoon the Conference continued with a panel discussion entitled "Property Rights and the Commons." The academics on this panel included Michael A. Heller, Lawrence A. Wien Professor of Real Estate Law, Columbia Law School, Mark Sagoff, Director and Senior Research Scholar at the Institute for Philosophy and Public Policy, University of Maryland and Laura S. Underkuffler, J. Dupratt White Professor of Law, Cornell Law School. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School was scheduled to participate in this panel but was unable to attend the conference.

The Conference concluded with a panel discussion titled "The Uneasy Relationship Between Public and Private Property Rights" and focused upon the most recent takings case heard by the Supreme Court in 2009, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection. James S. Burling, Principal Attorney, Pacific Legal Foundation and John D. Echeverria, Professor of Law, Vermont Law School presented their views of this case from their individual and competing perspectives. Both gentlemen authored amici briefs in the case - Mr. Burling on behalf of the property owners and Prof. Echeverria in support of the government. The heart of their discussion focused upon the fact that although the Court did not find that a taking occurred in this particular instance it also did not rule upon the doctrine of judicial takings or whether a court can "take" property via adjudication. Eminent domain attorney Leslie A. Fields, Partner, Faegre & Benson LLP in Denver, Colorado, moderated the discussion and posed a series of questions to stimulate debate.

The Brigham-Kanner Property Rights Conference and Brigham-Kanner Property Rights Prize are named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights. Since 2004, the Brigham-Kanner Property Rights Conference has recognized outstanding scholarly contributions to the field of property rights with the annual presentation of the Brigham-Kanner Property Rights Prize.

The Conference was video taped and copies will be available for purchase from William and Mary Law School, contacting Kathy Pond at 757-221-3796 or ktpond@wm.edu to order.

Save the dates - October 14-15, 2011 - for the Eighth Annual Brigham-Kanner Property Rights Conference which will take place in Beijing, China. The 2011 conference will be held in conjunction with Tsinghua University School of Law in Beijing and promises to be quite amazing. More details, including the 2011 Property Rights Prize honoree, will follow as they become available.

Disclosure: Joseph T. Waldo, Leslie A. Fields, James S. Burling, Toby P. Brigham and Gideon Kanner are all members of the Owners' Counsel of America and represent private property owners in eminent domain.

UPDATE: See "Joyful Property Professor" Carol M. Rose Honored with 2010 Brigham-Kanner Property Rights Prize, Justice Sandra Day O'Connor to Receive 2011 Prize at Beijing Conference for more details and photos from the 2010 events.

More on Texas developer's attempt to Bulldoze free speech concerning eminent domain abuse

2010-09-29T09:40:00.012-04:00

Yesterday, the Fifth District Court of Appeals in Dallas, Texas heard oral argument in the defamation suit brought by developer H. Walker Royall against author Carla Main and the non-profit publisher, Encounter For Culture and Education, Inc. ("Encounter Books"), for writing and publishing the book Bulldozed: "Kelo," Eminent Domain and the American Lust for Land. Dana Berliner, Institute for Justice Senior Attorney, argued on behalf of Main and Encounter Books in support of their first amendment rights to freedom of speech and in opposition to developer H. Walk Royall's request for monetary damages and that the Court prohibit further printing or distribution of the book. (Disclosure: Dana Berliner, IJ Senior Attorney, is a Member of the Owners' Counsel of America.)

While we could not be in the Dallas courtroom to observe the oral arguments for both sides yesterday, reporters for the Dallas Observer had front row seats. In his post yesterday, reporter Patrick Michels, recounts the arguments for both sides. In her arguments before the tree-judge panel, Ms. Berliner, stated that the developer may disagree with the book, but "the gist of Bulldozed is political and social criticism" and such criticism is a form of speech protected under the First Amendment. Ms. Berliner argued that neither the developer nor his attorneys have proven that the facts set forth in the book are untrue. Royall does not dispute the facts at all, rather, "what Mr. Royall really disagrees with are Ms. Main's conclusions from these uncontested facts."

Royall's lawyer, Patrick Zummo, focused on the jurisdictional argument of whether a book qualifies as "print media." Michels writes in his blog post: "Zummo said it's enough for the court to decide if the gist of the book is defamatory: 'Because the book is about him, it was clear that the statements about the controversy in Freeport concern Walker Royall.'" Mr. Zummo responded to Defendants Main & Encounter's argument that Royall as a developer working with the City of Freeport on a controversial project is a "limited-purpose public figure" by point out that at the time he signed the development agreement with the public entity there was no publicity about him.

From our position, Ms. Berliner lays out the case rather clearly in the written arguments submitted to the appeals court. Specifically, in Main & Encounter's "Appellants Reply Brief," she writes:

Notwithstanding Royall’s numerous allegations, the situation facing this Court is simple: Appellants published a book about a controversial redevelopment project in which Royall had a leading role. Royall filed a lawsuit claiming that Appellants’ political opinions defamed him, but steadfastly has refused to demonstrate how anything Appellants published meets the legal definition of defamation, instead showing that he disagrees with Appellants’ political speech and that his feelings were hurt by their comments. But the courts do not exist to protect hurt feelings, and they certainly do not exist to allow participants in controversial public projects to squelch critical political speech.
Appellants' Reply Brief, pp. 1-2.

Links to the written arguments submitted by both sides follow below.

05-09-01503-CV (Main v. Royall) Appellants' Reply Brief

H. Walker Royall's Response

Main v. Royall Second Amended Brief

While Bulldozed focused upon the struggle of one family to save its private property and business from an economic development taking in Freeport, Texas, it also discussed other infamous cases of eminent domain abuse in our recent history, Kelo included. Beyond the obvious connections between the two stories of Susette Kelo and the Gore Family of Freeport, there is another interesting similarity. The planned marina project in Freeport for which the City wished to take the Gore's private property has not brought the economic development, prosperity, new business and new jobs that was promised by the City leaders who entered into the deal with Royall 7 years ago. Unlike New London where the Fort Trumbull neighborhood remains a barren wasteland of weeds years after the homes were razed, some progress has been made in Freeport. But, as the video below shows, the progress has been slow and results not nearly as prosperous as originally suggested.

Houston, TX-based Channel 2 Investigative Reporter Robert Arnold looks into the City of Freeport's unsuccessful attempts to build a marina with taxpayer dollars for the benefit of Dallas real estate investor H. Walker Royall. Originally aired July 12, 2010 as a follow up to previous segments related to this project.

For more on yesterday's oral arguments and background on this story see these additional resources:

Tomorrow, Attorneys to Square Off Over Eminent Domain Book That Got Everyone Sued Dallas Observer Blog (9/27/2010)

The Litigious Legacy of Kelo, The Wall Street Journal (9/28/2010)

Bulldozing Free Speech on Eminent Domain Abuse (9/28/2010)

5th Court of Appeals to hear arguments in defamation suit over book, Tex Parte Blog of Texas Lawyer Magazine (9/28/2010)

UPDATE: More about this case is also available at the following links:

Texas Appeals Court Hears Landmark Defamation Case, Publishers Weekly (9/29/10)
Are Books Media or Is There no Freedom of Speech, National Eminent Domain Blog (10/4/10)
Lawsuits that kill books, Salon.com (10/6/10)

Author and publisher of book chronicling eminent domain abuse defends against defamation suit in Texas appeals court

2010-09-27T09:45:00.009-04:00

Journalist Carla T. Main pictured here with her book, Bulldozed. Photo courtesy of the Institute for Justice.

Tomorrow, September 28, 2010, author Carla T. Main and publisher Encounter Books will ask a Texas appeals court to dismiss the defamation lawsuit filed against them by Dallas developer H. Walker Royall. Royall's lawsuit seeks to ban further printing or distribution of the book Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land and has sought to shut down publicity surrounding the work. The argument will be held at 11 a.m. (Central) in Dallas before a three-judge panel of the state Court of Appeals for the Fifth District of Texas. If successful, the motion will result in a complete dismissal of the lawsuit against Main and Encounter, who are represented by the Institute for Justice (IJ), a public interest law firm based in Arlington, Virginia. (Disclosure: Institute for Justice Senior Attorney, Dana Berliner, is an OCA member and has represented property owners throughout the country in eminent domain litigation. Ms. Berliner, along with IJ attorney Scott Bullock, represented the homeowners in Kelo v. City of New London. Ms. Berliner is one of the IJ attorneys defending Carla Main in this First Amendment lawsuit.)

Mr. Royall filed his lawsuit in October 2008. In June 2009, Main and Encounter Books asked the trial court to dismiss the suit and argued that the book is protected by the First Amendment's guarantee of freedom of speech. The Dallas trial court issued a blanket denial of Main and Encounter’s claims in November 2009 and left open the issue of whether Royall could recover damages.

Bulldozed, published in 2007, chronicles events in Freeport, Texas, where Royall signed a development agreement to have the city take land owned by Western Seafood — a generations-old shrimping business — and give that land to Royall’s development company for a luxury yacht marina. (For more about Bulldozed, see a book review by OCA Member and blogger, Robert Thomas here.)

Despite Royall’s inability to identify a single false and defamatory statement about him in the work, Royall sued the book’s author, Carla Main, and its publisher, Encounter Books, seeking monetary damages and a permanent prohibition on further printing or distribution of the book. When asked by Main and Encounter to identify specific passages in Bulldozed that defame him, Royall could point only to Main’s criticism of his involvement in the Freeport marina project and other random statements that fall far short of the legal standard of defamation.

Previously, when the Gore family—owners of Western Seafood and the original victims of Royall’s eminent domain abuse effort in Freeport—complained against Royall’s actions, he sued them for defamation. In the present lawsuit, Royall has also sued the Galveston newspaper that published a review of the book, as well as the review’s author. Law Professor Richard Epstein was also named as a defendant in Royall's suit for writing a back-cover book blurb for Bulldozed. Professor Epstein, represented by IJ as well, was dismissed from the lawsuit in March 2009.

“Eminent domain for private development is the subject of nationwide public debate,” said Institute for Justice Senior Attorney Dana Berliner. “If Walker Royall doesn’t want anyone to talk about him or his development deals, he shouldn’t enter into deals that involve a city condemning his neighbors' property. Today we are asking the court of appeals to put an end to Mr. Royall’s lawsuit spree.”

For more details about this eminent domain censorship case see the Institute for Justice website here and recent press release here. For more details see also

Develop This! Kelo metastasis, John Fund, The Wall Street Journal, February 13, 2009
Critics slam Dallas developer's libel lawsuit, Tony Mauro, First Amendment Center, February 15, 2009
Prof. Richard Epstein Dismissed from Book-Blurb Libel Case, on Jurisdictional Grounds, The Volokh Conspiracy Blog, March 3, 2009
OCA previous post concerning the Gore family and Western Seafood here

New condemnation law blog "SchwabeBlog: Condemnation"

2010-09-20T12:40:00.008-04:00

Schwabe Williamson & Wyatt, one of the Pacific Northwest’s leading law firms, has entered the wonderful world of law blogging. Joining us and our fellow bloggers in the areas of eminent domain, condemnation, inverse condemnation, regulatory takings and property rights in Schwabe's Condemnation Law Blog are Schwabe attorneys Dennis Dunphy, Jill Gelineau and Jamilia Johnson. UPDATE: Schwabe attorney Joaquin Hernandez will also be contributing to Schwabe's Condemnation Law Blog. (Disclosure: Dennis Dunphy and Jill Gelineau are Owners' Counsel of America Members. Mr. Dunphy defends private owners throughout Washington state while Ms. Gelineau represents property owners across Oregon.)

Schwabe's Condemnation Blog highlights information and provides insight into key Northwest public projects involving government condemnation of private property. Schwabe bloggers will be emphasizing issues of particular interest to, and from the perspective of, private property owners while providing updates and commentary regarding important issues relating to the law of eminent domain, the protection of private property rights, and related Constitutional principles. As the Schwabe Condemnation Law Blog states: "Our goal is to provide a resource for those who are concerned about these issues, and perhaps on occasion to provoke further discussion."

Check out Schwabe's most recent post here concerning the Washington Supreme Court decision in Fitzpatrick v. Okanogan County, where the Court ruled that the government can be held liable for damages to private property that resulted from government flooding.

Mississippi property owners reach eminent domain settlement with the Navy

2010-09-16T13:26:00.015-04:00

Photo credit:
U.S. Navy
Official U.S. Navy file photo of Special Warfare Combatant-
craft Crewmen assigned to Special Boat Team (SBT) 22.

Two Mississippi landowners have recently reached a $1.2 million settlement with the United States Navy regarding compensation for land taken for use by Special Boat Team TWENTY-TWO (SBT-22) as a special operations live-fire riverine training range along the Pearl River in Hancock County, Mississippi. SBT-22, based at John C. Stennis Space Center in Mississippi, is one of three Special Boat Teams. The primary mission of SBT-22, is to conduct and support special operations in riverine environments. SBT-22 operates and maintains armored vessels that maneuver Navy SEALS into and out of areas behind enemy lines. SBT-22 supports Naval Special Warfare riverine operations worldwide.

In a July 10, 2010 story for Jackson-based WLBT-30, reporter Bert Case interviewed SBT-22 Commander, Bob Lyonnais. "This [the Pearl River] is the best. In over 20 years of training, there is not a better training ground for navy special warfare, especially for the boat guys" said Commander Lyonnais. "You have live fire and riverene maintenance, right here; everything I need. I can do between 70 and 80 per cent of all my unit level training, right here in southern Mississippi."

While, the area along the Pearl River in Hancock County provides an excellent natural environment for training sailors assigned to SPT-22 and other similar units, this area also contains some of region’s most valuable deposits of sand and gravel. The Government offered the property owners only $176,000 for the 172(+) acres taken by eminent domain. The owners contended that the Navy's valuation of the property failed to consider the impact of the known deposits of marketable sand and gravel on the value of the property. The Navy responded that it was not feasible to mine the property because of the relatively small size of the individual parcels and other factors. Ultimately, the owners, represented by condemnation attorney, Paul Scott, a partner with Smith, Phillips, Mitchell, Scott & Nowak in Hernando, Mississippi, reached a settlement with the Navy of over $1.2 million, based on a valuation of $7,350 per acre for the land taken.

Military Times reported that the Navy acquired the property by eminent domain for "elite fighting units to practice with live ammunition and hone their jungle fighting skills." It also reported that this particular real estate had attracted the Navy's interest "because of its access to two rivers, usability for jungle training and nearness to the location of the boat unit."

There is no doubt that the taking of these private properties was for a genuine and valid public purpose. Rather, the issue here, as it is so often in eminent domain, is that the property owner who must give up the property be compensated justly. In this case, that included the loss of marketable sand and gravel.

Disclosure: Paul Scott represents landowners in eminent domain proceedings throughout the State of Mississippi and is the Mississippi Member of Owners' Counsel of America. For more information about this case see Smith Phillips website here.

New Jersey family farm threatened by eminent domain

2010-09-14T09:37:00.028-04:00

Robert Smith's family has owned the 100-acre Willow Pond Farm in Washington Township, NJ since 1790. Today, more than 200 years since the family began working the farm, its future as a working farm and preserved farmland is threatened by the Washington Township Municipal Utilities Authority's (MUA) plan to condemn 0.86 acres of the property for the purpose of drilling a public well to provide water for the municipal drinking supply. The taking of private property by eminent domain for municipal utilities is rarely contested as a valid public purpose; however, in this case the MUA may have a few hurdles to overcome when Mr. Smith and his attorney, Anthony Della Pelle, argue against the condemnation in Superior Court on October 1st. Disclosure: Anthony F. Della Pelle is an attorney with McKirdy & Riskin an eminent domain and property rights law firm in Morristown, NJ. Mr. Della Pelle's partner, Edward D. McKirdy, is the New Jersey member of the Owners' Counsel of America.

Although MUA has the power of eminent domain and may seize private property for the public purpose of providing utility services to the municipal community, the MUA appears to have overstepped New Jersey law and initiated condemnation proceedings without following certain procedures. Mr. Smith's family farm is located in an Agricultural Development Area, designated by the State for agricultural development where agriculture is the preferred land use. State law requires that a local municipality or government agency wishing to use eminent domain to acquire land in an agricultural development area must file a notice of intent with both the local county agriculture board and the State Agriculture Development Committee. The notice of intent must contain the purpose for the proposed acquisition and must set forth alternatives that would not require taking property within the agricultural development area. The property also lies within New Jersey's Highlands Preservation Area, which contains significant development controls to preserve ground water resources in the area. Both the county and state agricultural committees are concerned about the MUA's plans to condemn the Smith property and drill a public drinking well, and the MUA did not obtain permission from the New Jersey Highlands Council to drill the well within the Highlands area.

In her August 19, 2010 article, Daily Record reporter Vanessa Vera Roman quoted State Agricultural Committee spokesperson, Hope Gruzlovic comments concerning the MUA's actions. "In this case, the MUA made decisions, drilled test wells, filed for condemnation of a portion of the Smith farm, before there was a complete filing with the two organizations," she [Hope Gruzlovic] said. "There's procedural issues here and there's also impact findings."

Further, NJ law requires that any local agency wishing to create a drinking water source from groundwater, by means such as a well, must obtain approval from the New Jersey Department of Environmental Protection (NJDEP) prior to utilizing eminent domain to take property for a well. The MUA has not sought nor received NJDEP approval and, is, therefore, not in compliance with NJDEP regulations. Yet, the MUA continues to proceed with its plans to take Mr. Smith's property for a public well.

Mr. Smith has entered into a preservation agreement with the Morris County Agriculture Development Board to preserve the farm as a working agricultural operation. This agreement as well as the operation of the farm are jeopardized by the MUA's plans to seize a portion of the property for a municipal well. While the MUA only wishes to take 0.87 acres, less than 1% of the farm's land area, a buffer requirement exists which precludes any farming activity from occurring within a large radius of the well, which would translate to approximately 20 acres or more in this case. A 20-acre or larger buffer on a working farm translates to: no fertilizer, no pesticides, no chemicals, and no use of natural or manufactured substances that can be considered toxic to humans when ingested as these substances can leach into the ground water damaging its potability. The local and state agriculture committees have concluded that these restrictions "would cause unreasonably adverse effects" upon the Smith's farming operation. If the MUA proceeds with the taking of the Smith property for the well, the farmland preservation designation will not be finalized.

As a result of the buffer zone, Mr. Smith would not only lose the agricultural preservation designation but also the utility of close to, if not more than, 20% of his farm. Should the condemnation be upheld, this would be equivocal to a loss of property value as the MUA would essentially have "taken" +/-20 acres of the Smith property when those issues of damages were not considered by the MUA's appraisers to date and were not part of the pre-litigation negotiations. This will most certainly be an issue Mr. Smith's attorneys will argue on October 1st.

The Morris County Agriculture Development Board has formally recommended that the MUA abandon the taking. The State Agricultural Development Committee has issued a similar preliminary recommendation requesting that the condemnation be abandoned and is expected to issue a final decision before the end of September. However, neither the County nor State agricultural agencies have the power to stop the MUA from take the property. That power rests specifically with the courts. We will be following this case closely and report back once the court has issued its ruling regarding MUA's right to take the Smith Property.

Happy Birthday to Robert Thomas @ inversecondemnation.com

2010-09-03T22:29:00.003-04:00

Albeit a bit belated, we send our best wishes for another great year in blogging to our fellow law blogger Robert Thomas who celebrated the 4th anniversary of the birth of his blog www.inversecondemnaton.com on August 31.

Robert is an dedicated blogger (over 1,100 posts in 4 years). He amazes us with the speed at which he posts on day to day events occurring in court rooms, cities and towns across the country on topics such as eminent domain, inverse condemnation, land use, regulatory takings, and property rights - all from his beautiful home in Hawaii (mind you he is waking up when those of us on the East Coast are heading to Starbucks for an afternoon pick-me-up). His posts are profound, insightful, fun to read and often sprinkled with bit of humor.

Thank you, Robert, for all that you do.

OCA at ICSC in Orlando

2010-08-23T12:34:00.003-04:00

Owners' Counsel of America is attending the International Council of Shopping Centers (ICSC) Florida Convention in Orlando today and tomorrow. More details about the convention, speakers and topics later today.

Washington's Supreme Court "stroll through Sherwood Forest" to settle a property rights case

2010-08-20T09:10:00.011-04:00

The Washington Supreme Court issued an opinion Thursday in Proctor v. Huntington, No. 82326-0 (August 19, 2010), a case involving a property line dispute between neighbors. The Court was split 5-4 with the majority finding in favor of the encroaching property owner and upholding the opinions of a Skamania County judge and the Court of Appeals.

A little history is helpful in digesting this particular property dispute. The neighbors, Noel Proctor and Ford and Christina Huntington, purchased property in the early 1990's from a previous owner who had subdivided a large tract of land into 2 parcels. Proctor purchased 30 acres while the Huntingtons purchased the adjacent 27 acres. Prior to purchasing said parcels, both neighbors had been shown “the general property lines of the two parcels” by the seller.

After taking ownership to their 27 acres, the Hutington's spent the summers of 1994 and 1995 camping on portions of the property. During that time they were deciding upon the location of where they would construct their home. When they had determined the ideal spot for their dream home, the Huntington's consulted a surveyor to confirm the northwest corner of the property (which would be the corresponding northeast corner of Proctor's property). This particular surveyor was familiar with the property having marked property lines for the purpose of regulating logging activities north of the neighboring properties. The surveyor pointed to a survey pin and suggested to the Huntington's that this particular pin was the northwest boundary corner. Unfortunately, for all involved, the surveyor was a bit off in designating that particular pin as the corner suggested. In fact, he was 400 feet off.

In 1996, the Huntington's armed with the surveyor's incorrect information, proceeded to construct a home, garage and well on the portion of the property they had determined to be the most opportune for their home, which they later learned encroached 400 feet onto Proctor's land. Proctor also constructed a home on his 30 acres and for the next few years the neighbors lived peaceful side by side.

In 2004, Proctor became concerned that a different neighbor had encroached upon his land. In order to confirm the property lines, Proctor hired a surveyor to perform and draw a complete property survey, which showed that the Huntington's had built their home, garage and well on Proctor's property. Of course, Proctor approached his neighbors with this information and proceeded to negotiate a resolution to the situation.

When it became evident that the neighbors would not be able to work out a resolution between themselves, Proctor sued the Huntingtons to quiet title and remove the Huntingtons' improvement from his property. The Huntingtons filed a counter claim arguing adverse possession.

The Huntingtons' adverse possession claim didn't work with the County Court Judge as they had only possessed the property for 8 years, from 1996 to 2004, rather than the required 10 years. (The Huntingtons counted the 2 summers they spent as nomads camping in various locations as 2 years in adverse possession. The Judge correctly refused to count these years.) However, the Judge did find that the Huntingtons' acted in good faith and that the injunctive relief requested by Proctor requiring the Huntingtons to remove the structures built on his property "would be oppressive...and inequitable." (The trial court relied upon Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 908, 449 P.2d 800, 450 P.2d 815 (1968-69).)

Rather, the trial court ordered Proctor to sell the Huntingtons the acre of land upon which they had built their home and other improvements at the fair market value of $25,000 which was testified to by an expert appraiser during the trial. The court noted that under this resolution, neither side prevails. And, both sides appealed. The Appellate Court affirmed the trial court's remedy.

The key issue for Proctor was that the improvements constructed by his neighbors were an absolute encroachment upon his property not a slight encroachment by a few inches or even a few feet, as such, Arnold did not apply. However, the Washington Supreme Court agreed with the trial court's application of Arnold in this case citing in the majority opinion written by Justice Debra Stephens,

"Ordinarily,...a mandatory injunction will issue to compel the removal of an encroaching structure. However, it is not to be issued as a matter of course...[T]he court must grant equity in a meaningful manner, not blindly....A court asked to eject an encroacher must instead reason through the Arnold elements as part of its duty to achieve fairness between the parties...This is the essence of the court's equity power, which is inherently flexible and fact-specific."
(Opinion, p. 12)

In the instant case, the expense of relocating an entire home, garage and well (testified at $300,000 by a construction expert) was viewed as inequitable by the trial court and upheld by both the appellate and Washington Supreme Court.

The majority opinion also outlines the issues of encroachment, common law property rights and remedies as well as a trend in recent years from a more rigid approach to a more flexible view of property law. It's not an overly long opinion (15 pages) and worth reading. The Court concludes:

In upholding imposed by the trial court, we recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach. Nothing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers. Proctor does not forfeit the right to his land, nor do the Huntingtons get something for nothing.

(Opinion, p. 13)

The dissent was written by Justice Richard Sanders, joined by Justices Barbara Madsen, Gerry Alexander and Jim Johnson, found the majority opinion to be "inconsistent with the nature of private property." (We also recommend reading this dissent and not only for its witty references to Robin Hood.)

A fundamental aspect of private property is the landowner's right to choose if he or she will sell the property and, if so, for how much. The majority cannot simply stroll through Sherwood Forest, redistribute property, and say any harm is slight if the victims are paid what the court determines is fair market value. If Proctor really valued his property only at the market value, he would have sold it already.
(Dissent, p.6)
While we might find that Proctor v. Huntington does not necessarily qualified as a Robin Hood-like redistribution of property, we do agree with the dissenting Justices that if Proctor had valued his property solely at fair market value, he would have sold it as a willing seller to the Huntingtons or some other willing buyer. Still we agree more with the final words of Sanders dissent: "The moral of this story should be: before you build, especially near a property line, get a survey."

And, perhaps an additional moral should be: when your neighbor shows you a location upon which he wishes to build something that might be close to your property line, you might ask if he has obtained a survey and even ask to see it.

For more news and commentary on this case see:

Supreme court sides with couple in property dispute

Oops! The House is on the Wrong Lot

Evergreen Freedom Foundation's Supreme Court of Washington Blog here and here.

7th Annual Brigham-Kanner Property Rights Conference September 30 & October 1, 2010

2010-08-09T10:52:00.014-04:00

The annual Brigham-Kanner Property Rights Conference presented by the William & Mary Property Rights Project and the Institute of The Bill of Rights Law will be held September 30 - October 1, 2010 at the William & Mary Law School in historic Williamsburg, VA. The Brigham-Kanner Property Rights Conference and Brigham-Kanner Property Rights Prize are named in recognition of OCA Members Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights. Mr. Brigham is an attorney who has specialized in eminent domain and property rights law for more than 40 years and is founding partner of Brigham Moore LLP in Florida. Professor Kanner is Professor of Law Emeritus at the Loyola Law School Los Angeles and has been a practicing appellate lawyer in eminent domain and inverse condemnation for forty years. Professor Kanner is currently Of Counsel at Mannatt, Phelps & Phillips, LLP in California.

Now in its seventh year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field. Previous recipients of the Brigham-Kanner Prize include Professor Frank I. Michelman of Harvard Law School (2004), Professor Richard A. Epstein of the University of Chicago Law School (2005), Professor James W. Ely, Jr. of Vanderbilt Law School (2006), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor Robert C. Ellickson of Yale Law School (2008) and Professor Richard E. Pipes of Harvard University (2009). (See our previous posts here and here.)

Professor Carol M. Rose of James E. Rogers College of Law at the University of Arizona will be honored with the 2010 Brigham-Kanner Property Rights Prize. Professor Rose is the Ashby Lohse Professor of Water and Natural Resource Law and the Gordon Bradford Tweedy Professor of Law and Organization, Emerita, and the Fred Johnson Chair in Property and Environmental Law, Yale Law School. Her books include Perspectives on Property Law (2d ed. 1995) (3d ed. 2002) co-author with Bruce Ackerman & Robert Ellickson) and Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (1994).

OCA Members Joseph T. Waldo (Virginia), James S. Burling (Pacific Legal Foundation, California) and Leslie A. Fields (Colorado) will be presenting October 1 . Mr. Waldo will participate in a panel entitled "Defining Just Compensation: How Do You Get There and What Does It Mean?" He will be joined by James W. Ely, Jr. (Milton R. Underwood Chair in Law Emeritus & Professor of History Emeritus, Vanderbilt University) and The Honorable Robert W. Wooldridge Jr. (Retired, Fairfax Circuit Court Judge and Senior Lecturer in Law, George Mason Law School). Mr. Burling and Ms. Fields will be joined by John D. Echeverria (Professor of Law, Vermont Law School) in a discussion regarding "The Uneasy Relationship Between Public and Private Property Rights." Other speakers expected at the conference include Robert C. Ellickson (Walter E. Meyer Professor of Property and Urban Law, Yale Law School), Michael A. Heller (Lawrence A. Wien Professor of Real Estate Law, Columbia Law School), Thomas W. Merrill (Charles Evans Hughes Professor of Law, Columbia Law School), Jedediah Purdy (Professor of Law, Duke Law School), Mark Sagoff (Director and Senior Research Scholar at the Institute for Philosophy and Public Policy, University of Maryland), Daniel J. Sharfstein (Associate Professor of Law, Vanderbilt Law School), Henry E. Smith (Fessenden Professor of Law, Harvard Law School), and Laura S. Underkuffler (J. Dupratt White Professor of Law, Cornell Law School).

The conference begins on Thursday, September 30th with an evening reception and dinner in the historic Sir Christopher Wren Building, the oldest college building in the United States. The 2010 Brigham-Kanner Property Rights Prize will be awarded to Professor Rose on Thursday evening. Panel discussions will take place on Friday, October 1st at the law school. With the wealth of academic knowledge and practical experience held by this collective group of panelists, the 2010 Conference promises to be quite informative and stimulating. Participation in Thursday's event is not required to attend the panel discussions on Friday. For more information about the 2010 conference, please see the conference brochure here or contact Kathy Pond at (757) 221-3796 or ktpond@wm.edu.

MN Supreme Court: Redevelopment authority need not have binding development agreement in order to condemn property

2010-07-30T12:12:00.011-04:00

Yesterday, the Minnesota Supreme Court issued its opinion in Eagan Economic Development Authority v. U-Haul Co. of Minnesota, No. A08-767 (July 29, 2010). The state supreme court reversed a 2009 appellate court decision which invalidated a "quick-take" condemnation on the basis that the Eagan Economic Development Authority (EDA) exceeded its authority to acquire property via eminent domain as the city had not executed "a binding development agreement respecting the project."

In 2007, the EDA filed a "quick-take" condemnation petition in order to obtain title to several parcels of private property for a redevelopment project in the Cedar Grove area, to “reawaken the spirit and vitality of [that] part of Eagan” and to “replac[e] a market obsolete regional shopping center.” The lower court found that the EDA had a valid public purpose for acquiring private property and granted the condemnation petition. Three property owners appealed and the court of appeals reversed, concluding that the EDA exceeded the scope of its authority in condemning the property without first securing a binding development agreement for the property. (See Robert Thomas's blog here for more background on this case and an article by Erin Johnson for Thisweek Newspapers.)

However, yesterday the Minnesota Supreme Court overturned the appellate decision and held that:

The Eagan Economic Development Authority is bound by the prohibitions and requirements of the “Redevelopment Plan for the Establishment of the Cedar Grove Redevelopment Project Area” it prepared, adopted, and submitted to the Eagan City Council for approval, which approval was granted.

Subsection 1-8 of the “Redevelopment Plan for the Establishment of the Cedar Grove Redevelopment Project Area,” which deals with the proposed reuse of property, does not require the Eagan Economic Development Authority to have a binding development agreement before it can condemn private property in this circumstance.

To reach its decision, the Minnesota Supreme Court considered the "enabling resolution," the initial resolution that established the EDA, which was not presented to the district court and was, therefore, not in the record for the court of appeals to consider. The Court explained: "Usually, an appellate court 'may not consider matters not produced and received in evidence below.'...But we have taken judicial notice of public records and have said we have the 'inherent power to look beyond the record where the orderly administration of justice commends it.'” (Opinion p. 12, citations omitted).

The Court found that the enabling resolution "provided the EDA with the powers of a housing and redevelopment authority under Minn. Stat. §§ 469.001-.047, the powers of a city under Minn. Stat. §§ 469.124-.134, and the powers of an economic development authority as contained in Minn. Stat. §§ 469.090-.108, which include the power to acquire property and to exercise eminent domain." (Opinion p. 15).

In its opinion, the Court then sought to interpret other resolutions and agreements, including the Redevelopment Plan and TIF Plan, to determine that the EDA did not go beyond the scope of its authority. In reviewing these documents, the Court notes that the Redevelopment Plan , specifically Subsection 1-8, and TIF Plans are "poorly drafted" and that the "imprecise language" makes interpretation "challenging." The Court concluded that the EDA did not exceed the scope of its authority when it acquired the private properties of the respondents. However, the justices did offer 2 caveats. First, the justices indicate that this opinion is in no way an endorsement of a universal interpretation of such drafting or substantive policy, as the drafting was poor and the interpretation challenging. Second, the Court notes that the EDA drafted these documents and could have taken greater care in its drafting. Nonetheless, Subsection 1-8 of the Redevelopment Plan as drafted does not require that the City enter into a binding development agreement prior to the EDA acquiring property. (Opinion pp. 31-32).

Finally, the court held that:

Because the court of appeals invalidated the quick-take order on the ground that the EDA exceeded the scope of its eminent domain authority, it did not address the property owners’ other claims that the taking was not necessary for public use and that the EDA was not entitled to use quick-take procedures. Therefore, we reverse and remand to the court of appeals to consider the property owners’ other claims.
(Opinion p. 32)

There will be more to come as this case goes back to the appellate court for consideration of the public use necessity and of the EDA's authority to utilize "quick-take" eminent domain procedures.

US loses spot among top nations protecting private property rights

2010-07-30T09:50:00.008-04:00

According to the 2010 Index of Economic Freedom published by The Heritage Foundation and The Wall Street Journal, 16 countries rank higher than the United States in protecting private property rights. From the report: "The United States’ economic freedom score is 78.0, making its economy the 8th freest in the 2010 Index. Its score is 2.7 points lower than last year, reflecting notable decreases in financial freedom, monetary freedom, and property rights."

A ranking of 17, behind such countries as Hong Kong, Singapore, Norway and Germany, in the protection of property rights is hardly satisfactory. The constitutional right of private property ownership is a fundamental principle of American society and liberty. As a bedrock principle that is constitutionally guaranteed, protection of property rights should be a priority for American citizens and our government. Yet, given the government's power to exercise eminent domain, protection of private property rights often succumbs to the power of the government.

The opportunity to improve the country's poor international standing on the protection of property rights lies with each individual state. Should lawmakers in states such as New York and California enact effective statutory changes to protect private property rights, as many states have done in the five years since Kelo, the position our country holds among other nations in the economic freedom index, and particularly the property right index, will most certainly rise.

Overdue payment for Missouri property taken by eminent domain finally paid

2010-07-23T14:02:00.017-04:00

Property taken by eminent domain in the Bottle District of St. Louis.
Photo credit: KMOX.com

KMOX.com reports here that just compensation has finally been paid to St. Louis property owner Bill Simon for the 2 acre commercial property he owned in the Bottle District of downtown St. Louis. In 2005, the Land Clearance and Redevelopment Authority (LCRA) seized Mr. Simon's land by eminent domain for the purpose of redevelopment.

The city valued Simon's property at $1.2 million, however, the property owner and his appraiser valued the property at $3.6 million. Mr. Simon's attorneys, Robert Denlow and Paul Henry, argued the case before a jury in July 2008. The jury verdict awarded Mr. Simon $2,871,200, an increase of approximately $1.6 million over what he had initially been offered. A judgment was entered against the LCRA requiring the city agency to pay the verdict amount plus $317,427 in pre-trial interest and $475 per day in interest thereafter. The LCRA appealed and an appellate court upheld the verdict. On March 23, 2010, the Missouri Supreme Court declined to hear the LCRA's final appeal. In the KMOX report referenced above, Simon's attorney, Bob Denlow, has indicated that the city of St. Louis and Clayco Construction have now paid the amount of just compensation awarded by the jury, plus interest, totalling $3.5 million. (See our previous posts related to this story here and here.)

The property, which spans an entire city block just north of the Edward Jones Dome in downtown St. Louis, was to be given to developer Clayco Construction for its planned $226 million entertainment destination complex. When the economy soured, the project stalled. Today, Simon's former property is an empty lot guarded by a giant bottle of Vess Soda (see KMOX photo above). Plans for the Bottle District entertainment area and complex remain undetermined.

Disclosure: Robert Denlow is the Missouri Member of OCA.

Update: See also STLtoday.com 7/24/2010 article: Former land owner finally gets check in Bottle District case. This article discusses the fact that the delay in payment by the City (through the LCRA, its agent) to the former property owner was partly due to the City's insistence that the compensation to the property owner would be paid upon receipt of same from the developer. However, as attorneys Denlow & Henry have insisted the responsibility for paying just compensation for the taking of private property rests with the City as the authority exercising eminent domain.

Denlow said that he recently targeted the city and the assets of the LCRA, suggesting that that had prompted the payment.
Ultimately, the city could not avoid payment by saying that the benefits of the condemnation went to the Bottle District developers, he said.

"Legally, the city owed the money because it's the city that did the condemnation and it's the city that turned the property over to the developer," Denlow said.
City officials could have protected themselves by ensuring that the developer had a letter of credit or some type of bond, he said.

"The real lesson is that the city should not partner up with a developer unless the city is fully protected," he said. "At the end of the day, the taxpayers were liable."

New Missouri law requires greater public notice concerning local government meetings on eminent domain and other issues

2010-07-15T11:47:00.007-04:00

On Tuesday, July 13, Missouri Governor Jay Nixon signed into law Senate Bill 851 and House Bill 1444, which contain identical provisions that require local governmental bodies to provide at least four days’ public notice before meetings on eminent domain, tax increases or redevelopment plans financed with public funds can take place. Additionally, the new law prohibits voting on such items prior to allowing the public to comment on these items.

Missouri's current law requires only 24-hour notice for such meetings or votes to take place. The new law requiring 4-days advance public notice goes into effect Aug. 28, 2010.

KY3 News reports here that some supporters of the bills argued that city officials sometimes give developers more notice than the general public when they consider development incentives. As a 24THSTATE blogger points out, with the additional 3 days notice, this law enables the public to participate in such governmental meetings on topics concerning tax increases, redevelopment plans and projects for which eminent domain would be utilized. With 4 days advance notice, Missouri's citizens might have a chance to actually attend such meetings, speak out for or against the use of public funds for such projects and perhaps, be on a more level playing field with developers and others who might have a more direct contact with the local government officials.

Update: See also Alan Ackerman's blog here - Alan points out the Due Process issue that arises when government entities and public agencies are not required to provide notice to an owner who's property is slated to be taken by eminent domain. (Disclosure: Alan Ackerman is the Michigan Member of OCA.)

SCOTUS Nominee Kagan on Property Rights

2010-07-02T10:23:00.004-04:00

During the Senate confirmation hearings held this week, Supreme Court Nominee Elena Kagan did provide a somewhat direct response to Senator Grassley's questions concerning her position on property rights. From the exchange between Sen. Grassley and Ms. Kagan:

GRASSLEY: The president who appointed you, in “Audacity For Hope,” his book, said our Constitution places the ownership of private property at the very heart of our system of liberty. Do you agree with that statement?

KAGAN: Well, I do think that property rights are a foundation stone of liberty, that the two are intimately connected to each other in our society and in our history.

As Professor Ilya Somin points out in his analysis (at the Volokh Conspiracy blog) of the exchange between Grassley and Kagan, although it's nice to hear that Kagan believes that property rights are a “foundation stone of liberty...intimately connected to each other in our society and history” and that “the job of the courts.. with respect to [property] rights, as any other, is to ensure that government does not overstep its proper bounds.” It is, however, not suggestive that she will rule in favor of property rights when such cases are before the Court. As Professor Somin explains in his writings, the Court has recently provided only minimal protection to property rights as compared to other constitutional rights and it is unlikely Kagan would stray from the Court's “oft-repeated pattern.”

Nonetheless, we also have seen a sign of progress for property rights protection and agree with Prof. Somin's point that property rights has now become a topic upon which Senators will question SCOTUS nominees, particularly because property rights are “a foundation stone of liberty.”

For a more complete transcription of Sen. Grassley's questioning of Ms. Kagan and a much more detailed analysis of same, visit the Volokah Conspiracy blog here. Additionally, to review Prof. Somin's analysis of the recent history of the Supreme Court's property rights jurisprudence see “Taking Property Rights Seriously? The Supreme Court and the 'Poor Relation' of Constitutional Law.”

More on last week's decision in Columbia eminent domain case

2010-06-29T09:53:00.013-04:00

"Judicial review of eminent domain in New York
is fundamentally broken."
-Institute for Justice attorney Robert McNamara,
commenting on the New York Court of Appeals decision in
Kaur v. New York State Urban Development Corporation

Last week the New York Court of Appeals issued its decision in Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010) (see our post here). In it's decision, NY's highest court reversed the New York Supreme Court, Appellate Division (First Department) decision issued December 3, 2009 which had struck down the attempted taking by eminent domain finding that the taking was unconstitutional as the project would not have a true public purpose but rather an entirely private benefit to Columbia University. The Dec. 3rd appellate opinion stated: "In this case, the record overwhelmingly establishes that the true beneficiary of the scheme to redevelop Manhattanville is not the community that is supposedly blighted, but rather Columbia University, a private elite education institution. These remarkably astonishing conflicts with Kelo on virtually every level cannot be ignored, and render the taking in this case unconstitutional."

The NY Court of Appeals ruling June 24 was, in essence, a "rubber stamp" on the use of eminent domain in New York state. As Damon Root wrote in his Reason post: "So not only did New York’s highest court abdicate its core responsibility to review government actions that infringe on individual rights, it also disobeyed the Supreme Court. Let’s hope Justice Kennedy and his colleagues take notice and eventually rectify this gross miscarriage of justice." (Excerpted from "Judicial review of eminent domain in New York is fundamentally broken" by Damon W. Root @ Reason blog.)

See also the following blogs for additional commentary and analysis on last week's Columbia decision.

New York Still Has "Unfrozen Caveman Judges" Who Are "Frightened And Confused" By Eminent Domain Blight (Robert Thomas @ InverseCondemnation blog)
Court of Appeals, citing precedent in Atlantic Yards case, overturns lower court ruling blocking eminent domain for Columbia expansion (Norman Oder @ Atlantic Yards Report)
NY High Court Permits Taking for Columbia University Expansion (Anthony Della Pelle @ New Jersey Condemnation Law blog)
Universities and Eminent Domain (Ilya Somin @ The Volokh Conspiracy)
New York Court of Appeals Backs Eminent Domain Use in Columbia Expansion (Clifford M. Marks @ WSJ Law blog)
New York's Eminent Domain "Blight" Grows (Jonathon Tobin @ Commentary blog)
Friday's Columbia "Blight" Case (Kaur) Links (Robert Thomas includes links to blog commentary and news articles @ InverseCondemnation blog)

Some links to recent news coverage:

Court Ruling Upholds Columbia Campus Expansion (Charles V. Bagli @ The NY Times)
State's Use of Eminent Domain for Columbia Project Affirmed (Joel Stashenko @ The New York Law Journal)
Individual Property Rights Lose Again In New York (John Wallace @ Liberty News)