February 1st, 2016 — In Articles
Can Prohibiting Demolition Constitute a Taking?
While it is clearly a taking when the government institutes condemnation proceedings to acquire private property and demolish any improvements upon the land, it’s much less clear that the government has taken an owner’s property rights when it tries to prohibit demolition on the owner’s private property. This issue arose in a recent case decided by Ohio’s First District Court of Appeals on December 30, 2015. The short answer: In some cases, prohibiting demolition can constitute a taking of private property under the Fifth Amendment.
January 28th, 2016 — In Articles
Rails-to-Trails Takings: Property Owners’ Rights When Land Use Changes
In 1983, Congress enacted the federal National Trails System Act Amendment (known as the “Rails-to-Trails Act”) in order to preserve abandoned railroad rights of way by converting them into public recreational trails. Trails established under the Rails-to-Trails Act can range from walking and biking trails to green spaces for public use, such as the New York City High Line which was the subject of a recent takings case in the U.S. Court of Appeals for the Federal Circuit and a blog post.
January 25th, 2016 — In Articles
Georgia Court Rules Property Owners Are Entitled to Compensation and Attorneys’ Fees for Abandoned Condemnation Efforts
As we have previously discussed, while the Fifth Amendment to the U.S. Constitution requires payment of just compensation when the government exercises its power of eminent domain, several states have laws in place that provide property owners with additional financial remedies under certain circumstances. One such remedy that exists in many states is the ability to recover attorneys’ fees—typically when the government does something (such as making an unreasonably low compensation offer) that interferes with the property owners’ rights.
January 21st, 2016 — In Articles
The Government’s Offer Isn’t Always “Just” Compensation
In order to exercise the power of eminent domain, government agencies are required – by the Fifth Amendment to the U.S. Constitution – to pay just compensation to the affected property owners. We discussed the Constitutional “just compensation” requirement in a previous post, which also highlighted some state laws that provide for additional compensation to individuals and businesses when private property is condemned by the government.
January 4th, 2016 — In Articles
Can Eminent Domain Be Used to Acquire Natural Gas and Water Rights?
In most eminent domain cases, property owners are fighting to protect their land from condemnation. Whether for a public park, road, hospital, or utility, the government most often uses its power of eminent domain to obtain the right to build on private property. But, what if the government isn’t seeking to take your property, but rather the resources beneath it? This presents an important question for landowners in resource-rich states like California, Montana, Pennsylvania, West Virginia, and others. Recently, cases and proposed statutes affecting private property owners’ natural gas and water rights have brought this issue to the forefront.
December 28th, 2015 — In Articles
When Can Property Owners Challenge Eminent Domain?
While state and federal government agencies have the power of eminent domain – to take private property for public use – that power is not unlimited. Eminent domain power is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution and by individual state constitutions and laws. If the government seeks to take your property, there are potential defenses an eminent domain attorney may employ to challenge the taking. While certain defenses challenge the condemnation outright, others focus on ensuring that you receive just compensation for the taking of your property. In this article, we provide a brief overview of four of the most common defenses to condemnation:
December 22nd, 2015 — In Articles
U.S. Supreme Court Asked to Consider Constitutional Challenge to California Zoning Ordinance
As we previously discussed, Owners’ Counsel of America (OCA) and the National Federation of Independent Business Small Business Legal Center (NFIB) have asked the U.S. Supreme Court to review an important property rights case decided by the California Supreme Court earlier this year. If not overturned, the case, California Building Industry Association v. San Jose, No. 15-330 (September 16, 2015), could set a damaging precedent that allows California agencies to impair the value of private property without paying the property owners just compensation.
December 14th, 2015 — In Articles
Florida Court Upholds Attorneys’ Fees Award for ‘Excessive Litigation’ in Condemnation Cases
When the government takes a private citizen’s land through the exercise of eminent domain, it is obligated to pay the landowner “just compensation” for the property taken. This requirement is established by the Fifth Amendment to the U.S. Constitution and the constitutions in all 50 states, and it serves to protect the fundamental rights of landowners across America. But, this begs the question: What is just compensation? How is it calculated, and who gets to decide?
November 30th, 2015 — In Articles
How is Property Valued in a Condemnation Proceeding?
When a government agency, utility, energy company or other entity takes private property through eminent domain (known as “condemnation”), the landowner is entitled to the payment of just compensation. This right to just compensation is firmly established in the Fifth Amendment to the U.S Constitution, as well as state constitutions and laws across the country. But, what does it mean for compensation to be “just,” and who decides what is a just amount? Someone has to place a value on the land taken. And, when the “taking” involves an easement or regulation, the property owner’s losses may not be strictly tied to the value of the affected property.
November 2nd, 2015 — In Articles
Easements and Restrictive Covenants: When the Government Takes Without Taking
When most people think about eminent domain and the condemnation of private property, they imagine the government acquiring a citizen’s private property and converting it to a public use. While this is often the case, it is not the only way that the government can acquire private property. Governments may claim “non-possessory” rights in private land. Such rights allow the government to either (i) use, or (ii) place restrictions on a landowner’s use of private property.