Owners' Counsel of America Files Amicus Brief in Support of Property Owner in Supreme Court Eminent Domain Case
Owners' Counsel of America recently filed an amicus brief in support of the petitioner/property owners in River Center LLC v.Dormitory Auth. of the State of New York (11-922) urging the United States Supreme Court to grant review and correct the eminent domain decision by the Appellate Division of the New York Supreme Court.
The case involves one of the largest condemnations of private property in the history of New York City - the taking of the unused development rights of an entire city block located in the area of the Lincoln Center for the Performing Arts. At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government's power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use.
The petitioner in River Center filed a Petition for Writ of Certiorari seeking review of the New York courts, which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York. The petitioner had the intention of developing the property into a multi-use commercial, retail, and residential complex. Its plans and ability to do so, however, were severely restricted by the Dormitory Authority's strategic interference over 19 months to deny the re-zoning of the property and delay construction. When the property was eventually condemned by the 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 Hastert in Honolulu prepared and filed 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 very important case," he said. "As a result of the Supreme Court's decision in the infamous Kelo case, the public's attention in eminent domain has been on the power of the government to take property for redevelopment and other uses that are not clearly "public." But the question of how compensation is determined once property is taken is also critical, and the Supreme Court should focus its attention on this case."
The New York courts concluded that an owner whose property is taken by eminent domain must have specific plans that will "come to fruition" in the immediate future. The Owners' Counsel of America brief argues that all evidence of value must be considered by a reviewing court, and it cannot disregard evidence that a potential buyer of the property would consider important in assessing value.
The New York court also rejected evidence that the Dormitory Authority depressed the 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 most expensive real estate market in the nation and what happens there has wide impact, so this case takes on an added importance."
The brief also argues that the Fifth Amendment protects the right of both a property owner and developer to testify about the property's value. Owners' Counsel implores the Court's review of this case to emphasize the constraints that the Just Compensation Clause places on the eminent domain power and to safeguard the rights of private property owners.
Owners' Counsel of America Honors Florida Eminent Domain Attorney Toby Prince Brigham
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.
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.
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.
Brigham-Kanner Property Rights Conference Makes Its International Debut in Beijing
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. (Watch Justice O'Connor's speech on YouTube here.)
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.
View a post-conference video prepared by William & Mary Law School here.
New York eminent domain attorney Michael Rikon will present a condemnation case study at international conference in Beijing
Condemnation attorney, Michael Rikon, the New York member of Owners' Counsel, 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.
Mr. Rikon will present a paper entitled "Case Study of Condemnation of 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 features valuation experts from across the globe. Mr. Rikon has practiced eminent domain law for 42 years and has tried several hundred trade fixture claims to judgment in New York courts. For further information on the conference, visit the official website at www.icvpme.org.
Justice Sandra Day O'Connor will be honored with the 2011 Brigham-Kanner Property Rights Prize in Beijing, China
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, China. The 2011 conference is co-sponsored by Tsinghua University School of Law, William & Mary Law School and The College of William & Mary.
"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."
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.
All seven previous recipients of the Brigham-Kanner Property Rights Prize will join Justice O'Connor in Beijing for the 8th annual conference. 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.
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. You may also contact the Assistant Director of the William & Mary Property Rights Conference Committee, Kathy Pond, at (757) 221-3796 or ktpond@wm.edu to learn more about the conference and the post-conference tour.
Owners' Counsel of America Honors Appellate Attorney, Michael Berger, for his Dedication to Protecting Property Rights
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).
2010 Brigham-Kanner Property Rights Conference
The seventh annual Brigham-Kanner Property Rights Conference was held from September 30 to October 1, 2010, at the William & Mary Law School in Williamsburg, Virginia.
The William & Mary Property Rights Project and the Institute of the Bill of Rights Law formed the annual conference in recognition of OCA Members Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights.
The annual event is designed to bring together members of the bench, attorneys and academia to discuss recent developments in property rights and concludes with an award presentation to that year's outstanding figure in the field.
This year's recipient is Professor Carol M. Rose of James E. Rogers College of Law at the University of Arizona. Professor Rose is the Ashby Lohse Professor of Water and Natural Resource Law, the Gordon Bradford Tweedy Professor of Law and Organization, Emeritus, and the Fred Johnson Chair in Property and Environmental Law, Yale Law School.
Previous recipients of the Brigham-Kanner Prize include Professor Richard E. Pipes of Harvard University (2009), Professor Robert C. Ellickson of Yale Law School (2008), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor James W. Ely, Jr., of Vanderbilt Law School (2006), Professor Richard A. Epstein of the University of Chicago Law School (2005) and Professor Frank I. Michelman of Harvard Law School (2004).
OCA Members James S. Burling, Joseph T. Waldo and Leslie A. Fields presented at the conference.
The 2011 conference will be held in Beijing, China, October 14-15, 2011.
Judicial Takings Are the Recent Focus of an American Bar Association Panel
The 2010 annual meeting of the American Bar Association featured a panel discussion moderated by OCA member Robert Thomas, a Hawaii land use and appellate lawyer. The topic was the recent Supreme Court case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.
The litigation centered on whether the state of Florida's efforts to repair storm-eroded beaches was an unconstitutional taking of the private owner's coastal property because the repair/beach replenishment would cut off the property owner's private beach access.
Mr. Thomas filed an amicus brief in this case on behalf of Owners' Counsel of America to support OCA's dedication to the rights of private property owners.
In his blog, Mr. Thomas indicates there is an additional issue in the case: whether a federal court can rule in a state judicial taking.
During the discussion, some important questions were posed:
Are there — or should there be — any federal constitutional limitations on the ability of state courts to define, or redefine, "background principles" of state property law?
Can the U.S. Supreme Court tell state supreme courts that those courts are wrong in saying what their own law is? If so, is that a chance in a view of federalism?
Why should private property owners be compensated for the state protecting their beachfront homes from storms and sea level rise by replenishing the beaches in front of their homes at public expense?
If you were advising a governmental entity, how would you counsel it in approaching beach preservation in the future? Should they get the statutes rewritten so as to require a judicial decision before the agency acts?
To continue the discussion of this important case, a follow-up teleconference is in the process of being scheduled. Keep monitoring the OCA site for details or subscribe here to receive notification.
Kelo v. New London — Losing the Battle but Winning the War
This year marks the five-year anniversary of the landmark case, Kelo v. New London, which educated the public about the state's abuse of the power of eminent domain.
On June 23, 2005, the Supreme Court ruled that economic development by a private party was a valid public purpose for which the power of eminent domain could be used. As a result of the ruling, seven New London, Connecticut, families lost their homes to private developers.
The public revolt following the Supreme Court decision forced the vast majority of state legislatures and many state supreme courts to take steps to limit Kelo.
As of August, 2010, the lush land where 75 homes once surrounded Susette Kelo's little pink house has turned to fields of weeds because the developer was unable to obtain financing.
"For property owners nationwide, Kelo is a classic example of losing the battle but winning the war," said Scott Bullock, an Institute for Justice senior attorney who argued the case on behalf of the homeowners. "
The Institute for Justice released a comprehensive report on the case and the aftermath, "Five Years After Kelo: the Sweeping Backlash Against One of the Supreme Court's Most-Despised Decisions."
Just Compensation Is No Compensation for Wisconsin VFW Case
In a majority opinion authored by Chief Justice Shirley Abrahamson, the Supreme Court concluded that no compensation can be just compensation.
The case was centered on determining fair market value for a property in serious disrepair.
Decades earlier, the Veterans of Foreign Wars gave its ownership of a valuable property to a developer in exchange for a 99- ear lease of the building the developer constructed on the land. The rent was $1 per year. Despite several changes in ownership of the building, each owner honored the lease.
Over the years, the condition of the building and the surrounding neighborhood deteriorated, so the Redevelopment Authority for the City of Milwaukee (RACM) condemned the property. As compensation, RACM offered $440,000 to the VFW and the building's owner. The VFW appealed the adequacy of the award to the Condemnation Commission, which valued the property at $425,000, according to the unit rule.
Under the "unit rule," condemned real property is to be valued as if it were held as an undivided interest, rather than assigning a value to each owner's partial interest. The amount of an award is then divided among the multiple owners.
At trial, the jury heard the RACM appraiser testify that the cost of demolishing the building outweighed any value derived from the vacant land. The RACM appraiser also said the costs of renovating the building exceeded its potential benefits. As a result of the appraisal, the jury determined the fair market value for the entire property to be $0.
Before the court of appeals, the VFW argued that the terms of the lease were so favorable, that it had value independent of the underlying property. The court of appeals agreed that application of the unit rule in these circumstances deprived the VFW of just compensation in violation of the Wisconsin Constitution.
But the Supreme Court concluded that the VFW's sweetheart sale-and-leaseback business deal reflected a business-contractual arrangement and should not be considered when determining the fair market value of the fee simple estate, therefore, no compensation can be just compensation for a leasehold interest in a property without value.
