Yearly Archives: 2020

In a complaint filed last week in the U.S. District Court for the District of Oregon against Oregon’s governor (in her official capacity), the City of Portland, and Multnomah County, Plaintiffs assert that “several provisions of law, including state statutes, executive orders, and municipal ordinances” amount to a per se taking of Plaintiffs’ property. More specifically, Plaintiffs alledge that the combination of these measures significantly impairs Plaintiffs’ rental contracts, thereby requiring that  just compensation be paid.  Visit OCA member Robert Thomas’ Inverse Condemnation Blog for more details about this recent filing and the case itself. 

In DW Aina Lea Dev., LLC v. State of Hawaii Land Use Comm’n, No. SCCQ-19-156 (Dec. 17, 2020), the unanimous Hawaii Supreme Court held that the statute of limitations governing a regulatory takings claim under the Hawaii Constitution’s “takings or damagings” clause is six years. The case started out in a Hawaii state court, and was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim for missing the limitations cut-off. Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question before Hawaii’s highest court was what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. For more about the case read OCA member Robert Thomas’ Inverse Condemnation Blog. To read the opinion itself, click here.

In an opinion just released by the Virginia Supreme Court involving OCA members Joshua Baker and Joe Waldo titled Johnson v. City of Suffolk, the court ruled that Virginia oystermen did not present a viable takings claim to obtain compensation when the City of Suffolk and its Sanitation District dumped raw sewage into the Nansemond river and declared a “condemnation zone” (i.e., no oyster harvesting). Specifically, the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest worthy of constitutional protection. We are obviously disappointed in this ruling and await word as to whether the defendants intend to appeal. For more about the case and the opinion, read Robert Thomas’ Inverse Condemnation Blog.  

In recognizing Dwight Merriam for its first annual New England Trailblazers publication last year, Connecticut Law Tribune called the four-decade legal veteran “a major figure in American planning law.” Based in Weatogue, CT, Merriam represents land owners, developers, governments, and individuals in land use matters. The Connecticut Law Tribune says Merriam is “one of just a handful of nationally-recognized true planner-lawyers, fully credentialed in both professions.” It was Merriam’s desire to advocate for individual rights that drew him away from pursuing a career in planning to one in the law during his formative years, according to the Tribune. Merriam is a Fellow and Past President of the American Institute of Certified Planners; a former Director of the American Planning Association; a former chair of APA’s Planning and Law Division; a former chair of the American Bar Association’s national Section of State and Local Government Law; the Connecticut member of Owners’ Counsel of America; a former Fellow of the Royal Institute of Chartered Surveyors; a Fellow of the American Bar Foundation; a member of the Rocky Mountain Land Use Institute National Advisory Board; a Fellow of the Connecticut Bar Foundation; a Counselor of Real Estate; a member of the AARPI, and a Fellow of the American College of Real Estate Lawyers. Merriam has taught land use law at the University of Memphis, the University of Bridgeport, Vermont Law School, the University of Connecticut School of Law, and the Quinnipiac University School of Law. Merriam has published more than 200 articles and 13 […]

After the Virginia General Assembly passed House Bill 831 authorizing utility companies to use existing “easements for the location and use of electric and communications facilities,” OCA’s Virginia member, Joshua Baker, filed suit, asserting that the law amounts to an unconstitutional taking of property rights without compensation and a denial of due process. Mr. Baker seeks a repeal of the legislation as part of the lawsuit. Mr. Baker explains that the property owners he represents, “are essentially giving up additional rights for  for-profit companies to use their land,” but without being compensated for such rights. To read more about the case and the Complaint that was filed go to Robert Thomas’Inverse Condemnation Blog. 

Since the beginning of the pandemic we have seen Governors and State Legislatures across the country implement  an array of policies in an attempt to contain the virus and its socioeconomic impacts. Many of these policies effectively broadened the scope of government power while placing a heavy burden on property owners and businesses already struggling during the COVID 19 pandemic.  Jim Burling from Pacific Legal Foundation and Robert Thomas from Owners’ Counsel of America will explore these COVID related policies and legal challenges. Topics to be covered include:  The constitutional implications of emergency orders restricting property and business owners The rights and legal status of property and business owners impacted by emergency orders Past, current and upcoming litigation challenging emergency orders This is a public event. If you would like to register, please click here.

For those who could not attend this year’s Brigham-Kanner Property Rights Conference on October 1-2 at William & Mary Law School, a link to the panels, speakers and recorded sessions can be found on OCA Member Robert Thomas’ Inverse Condemnation Blog. This year’s conference opened with the Brigham-Kanner Property Rights Prize being awarded to Professor Henry E. Smith of Harvard Law School. The prize is named in honor of the lifetime contributions of Toby Prince Brigham, founding partner of Brigham Moore, LLP and founder of OCA, and Gideon Kanner, professor of law emeritus at Loyola Law School in Los Angeles. The award is given annually and is presented to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights.

In an article published in the New York Law Journal Owners’ Counsel of America Members Mike Rikon and Jon Houghon discuss the recent decision in Staten Island Land Corp and how it seeks to address the problem of advance payments and sandbagging in the State of New York. As they explain in the article, under New York’s quick take statute, the government can take title to property which it seeks to condemn by making an advance payment based on the government’s ‘highest approved appraisal’ before the final determination of just compensation has been made, which payment can subsequently be used by the owner to purchase replacement property. However, what happens if the condemning authority tenders a second (and much lower) appraisal at trial (a tactic called sandbagging) that results in a final just compensation determination well below the advanced payment?  In such situations, the landowner can be forced to repay the deficiency amount, something that is difficult to do if the owner has already reinvested the money in replacement property. Read here on how the Staten Island case seeks to remedy this obvious injustice.

Owners’ Counsel of America member Randall Smith writes in a new article published in the October/November issue of the Louisiana Bar Journal about the unique interplay between Louisiana’s expropriation laws and the U.S. Supreme Court’s recent landmark decision in the Knick case. The article focuses on what Knick may mean for Covid-19 claims against local governments in the wake of mass shutdowns and other regulatory measures that are currently impacting businesses and property interests, both in Louisiana and nationwide. The article also highlights a case currently before the 5th Circuit involving enforcement of a $28,764,685 just compensation and interest judgment against Bernard Port that Randall Smith obtained for his client Violet Dock Port, as a result of the taking of  its’ port facility in 2010. To read the Bar Journal article in full click here. 

The Supreme Court’s recent decision in Knick v. Township of Scott has been aptly described as one of the most influential property rights cases of the last decade. In Knick, the Court explicitly overturned the second prong of the so-called Williamson County ripeness test that required property owners to seek a remedy through state action –usually just compensation – for the alleged taking before coming to federal court. In David Callies new book, published by the American Bar Association, entitled “Regulatory Takings after Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes,” he provides a summary of takings law in general and discusses in detail total takings and the exceptions which permit governments to so strictly regulate property as to permit no economically beneficial use.  Legal scholars from across the country already have commented on the importance of Mr. Callies’s work. Professor Henry Smith of Harvard Law School called it “a lucid and insightful guide through the labyrinth of the caselaw on categorical takings,” and Steven J. Eagle, of the Antonin Scalia Law School at George Mason University, noted that the new book “sets forth federal and state law respecting the tension between private property rights and government regulation in a way useful to both general readers and specialists.” David Callies is a professor of law at the University of Hawaii Law School and a former recipient of the prestigious Crystal Eagle Award from Owners’ Counsel of America.  .