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July 18th, 2019 — In Articles

The Nasty, Brutish, and Short Life of Agins v. City of Tiburon

By OCA Members Gideon Kanner and Michael Berger IF THE DUKE OF YORK’S MEN THOUGHT they were being made to perform useless, repetitive tasks to no worthwhile end, they were in about the same condition as the American lawyers who were practicing tak- ings law in the 1970s and 1980s. During that period of time, hordes of lawyers representing the competing sides in regulatory taking cases were sent, figuratively, charging up the hill to the Supreme Court (which, to make the analogy complete, sits on top of Capitol Hill in Washington, D.C.) in an effort to do intellectual battle over the issue of remedies in regulatory taking cases. That issue was whether such takings call for constitutionally mandated “just compensation” as specified in the Fifth Amendment, or only for judicial invalidation of the constitutionally overreaching regulation. Read on.

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June 28th, 2019 — In News & Events

Changes Ahead For Property Owners: After More Than 30 Years, Supreme Court Reopens Federal Courthouse Door To Property Rights Claims

OCA Member Robert Thomas seeks to alert all property owners in his recent posting on the impact of the U.S. Supreme Court’s recent landmark decision in Knick v. Township of Scott: Heads up, property owners: last week the U.S. Supreme Court issued a landmark ruling changing the way property rights lawsuits have been handled for the last thirty years. In Knick v. Township of Scott, the Court allowed property owners who sue to enforce their federal right to compensation because a municipal government has taken their property in violation of the U.S. Constitution’s Fifth Amendment by overregulating its use, to bring the lawsuit in federal court. You might reasonably ask: how could it be that since 1985, property owners who alleged a federalconstitutional violation were barred from suing in federal court? Well, the lawyers in our firm’s Land Use Practice Group who represent property owners in these type of cases had long asked the very same question. The details of why the Supreme Court—in the case Williamson County Regional Planning Commission v. Hamilton Bank (1985)—had barred federal takings plaintiffs from federal court are not terribly important, and it is sufficient to understand that until Knick, these kind of claims had to be raised exclusively in state court. No other federal constitutional right was subject to this requirement, only federal property rights. Williamson County assigned to state judges and state courts the exclusive responsibility for enforcing the federal constitutional right to own and use private property. In Knick, the Supreme Court revisited theWilliamson […]

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June 24th, 2019 — In Articles

Knick Analysis, Part I: After More Than 30 Years, Supreme Court Reopens The Federal Courthouse Door To Property Owners

Read OCA Member Robert Thomas’ take on the recent Knick decision in his blog entitled Inverse Condemnation here.

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June 24th, 2019 — In Uncategorized

More than a ‘Knick’—SCOTUS Overrules ‘Williamson County’ in Stunning Victory for Property Owners

Read OCA Member Dwight Merriam’s fascinating article in the Connecticut Law Tribune on the impact of the recent Knick decision on landowner property rights here.

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June 21st, 2019 — In News & Events

U.S. Supreme Court Decides Knick v. Township of Scott, And In Doing so Overturns the Williamson Doctrine

Congratulations to the Pacific Legal Foundation for winning a big property rights case today! In 2013, Rose Knick was forced to allow public access to a suspected gravesite on her ranch. Ms. Knick  sued over the unconstitutional property taking, but a federal court refused to hear her federal claim citing the 1985 Supreme Court decision Williamson County. Ms. Knick went all the way to the U.S. Supreme Court  seeking to overturn this precedent so property rights would be treated the same as  other constitutional rights, like due process and free speech. In a major ruling announced today, the Supreme Court has agreed that the Williamson County precedent should be overturned. This is a major victory for property owners nationwide. OCA filed an Amicus Brief in the Knick case to support Ms. Knick’s legal position.

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June 12th, 2019 — In Articles

Awaiting ‘Knick’…Will SCOTUS Fix the Ripeness Mess?

The decision in an important takings case, Knick v. Township of Scott, Pennsylvania, reargued Jan. 16, is soon to be released. Be watching for it,… By Dwight Merriam | June 11, 2019. Read more.

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June 5th, 2019 — In News & Events

OCA Member Thor Hearne Files Another Rails to Trails Case

Thor Hearne, a parter at Larson O’Brien and perhaps the best known lawyer specializing in Rails to Trails litigation recently filed another lawsuit in the Federal Court of Claims on behalf of 150 landowners whose property is part of an eight-mile rail corridor that will be used to expand Sarasota’s “Legacy Trail.” Despite the fact that in the last 10 years the federal government has had to pay millions to property owners to convert railroad beds into recreational trails, the Department of Justice continues to fight these cases. “It’s crazy for DOJ to contest these cases,” Hearne said. “Why do they keep fighting them?” Great question.

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May 6th, 2019 — By  Dwight H. Merriam, CRE — In Articles

OCA Member Dwight Merriam Weighs In On Controversial Topic Before Connecticut Supreme Court

By Dwight H. Merriam, CRE

Over the last 40 years, more than 8 million babies have been born through the miracle of in vitro fertilization, creating new love and new families.But when couples split, what happens to the embryos? Is this a property rights issue or someting else? It’s not an easy question to answer. Connecticut would benefit from a law that providesguidance. In the meantime, the Connecticut Supreme Court has that question before it. See OCA Member Dwight Merriam’s recent Article on this controversial topic in the Hartford Courant.

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April 9th, 2019 — In News & Events

OCA Files Amicus Brief Challenging Practice of Conveying Immediate Possession to Natural Gas Pipeline Companies

Recently, several federal courts of appeals have upheld giving immediate possession of property (sometimes called quick take) to a private pipeline condemnor once a district court has ruled in favor of the pipeline that it qualifies to condemn property under 15 U.S.C. § 717f(h). These courts conclude that summary judgment grants a pipeline a “substantive” right, and therefore there’s no reason to not give it possession now by granting a Rule 65 injunction. But a close reading of section 717f(h) establishes that it is only addresses whether a private pipeline company may institute an eminent domain lawsuit to take property, i.e. whether it has standing. It does not delegate the separate power to take immediate possession of property. See OCA’s recently filed Amicus Brief making these points. 

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March 13th, 2019 — In News & Events

OCA Member Dwight Merriam Discusses the Truth About Trump’s Border Wall Plan

Whether he knows it or not, by declaring a national emergency to build his wall President Donald Trump has doomed the centerpiece of his presidency to an eternity of fights in Congress and the courts.Trump does not see or chooses not to see the naked truth that as a practical matter, the nature of eminent domain litigation and federal law will prevent him from ever assembling the land necessary to build his wall by the end of a second term, even with an emergency declaration. Land assembly for any large project is difficult and takes a long time. It is difficult to find a comparison to Trump’s wall, which is 550 miles long and requires the acquisition of more than 1,000 private properties in Texas alone. But consider the notorious Kelo v. New London eminent domain case involving a relatively modest land assembly of 115 properties covering 90 acres. Read more in the Connecticut Law Tribune.  

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