OCA Files Amicus Brief in Virginia Oystermen Takings Case
July 1st, 2020 — In News & Events
OCA Files Amicus Brief in Virginia Oystermen Takings Case
OCA joined the Pacific Legal Foundation recently in filing an Amicus Brief in a case before the Virginia Supreme Court entitled Johnson v. City of Suffolk. This case involves a claim by Virginia oystermen that the City of Suffolk and a Sanitation District knowingly operated a sewage and stormwater system in such a way as to discharge wastewater into the Nansemond River, invading oyster beds being leased by the oystermen from the state for the express purpose of oyster cultivation, thereby damaging and taking the oysters—their private property—without compensation. The oystermen are being represented by the law firm of Waldo & Lyle out of Norfolk, Virginia. From a lower court decision finding the oystermen’s claims were superseded by the right of localities to pollute freely pursuant to Darling v. City of Newport News, 249 U.S. 540, 543 (1919), the case is now before the Virginia Supreme Court. The issue to be decided is: Can a municipal entity evade liability under Article I, Section 11 of the Virginia Constitution after discharging wastewater from its public sanitation system into the Nansemond River, destroying privately owned oysters on sections of riverbeds leased from the Commonwealth for the express purpose of oyster cultivation? Stay tuned for the decision. A copy of OCA’s Amicus Brief filed on behalf of the oystermen can be accessed here.
May 5th, 2020 — In News & Events
Highest Court in North Carolina Resolves Valuation Issues in Notorious Map Act Case
On May 1, 2020 the N.C. Supreme Court unanimously affirmed the just compensation judgement in Chappell v. N.C. Dep’t of Transportation, No. 51PA19-1 (May 1, 2020). Chappell is the follow up to the N.C. Supreme Court’s landmark decision in Kirby v. North Carolina Dep’t of Transportation, No 56PA14-2 (June 10, 2016), in which the court held that the “Map Act,” a statute by which NCDOT designated vast swaths of property for future highway acquisition, was a taking because it prohibited development and use of designated properties over an extended period of time. In Kirby, the court concluded “[t]hese restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent domain.” The court remanded the case for a parcel-by-parcel determination of just compensation. Shortly after the decision in Kirby, the North Carolina Legislature repealed the Map Act, thereby changing an indefinite taking into a finite one. This set the stage for a valuation of the countless properties that had been encumbered by the Map Act for years in order to assess the just compensation due. Further complicating the matter were the actions of NCDOT in filing condemnation actions against some, but not all, of the impacted properties. In the end, the N.C. Supreme Court issued a decision upholding the damages awarded in the first of the property owner cases to go to trial, but doing so in a way that leaves open the valuation methodology to be employed for future Map Act cases. In Chappelle, the Court ruled […]
April 16th, 2020 — In News & Events
OCA Files Amicus Brief in Case Involving Destruction of Residence by Local Police
After being chased by police for stealing clothing from a Walmart, a man barricaded himself in a house in Greenwood Village, Colorado. Over a 19 hour period, using explosives and a battering ram attached to an armored personnel carrier, the local police department’s SWAT team intentionally destroyed the landowner’s house to force the fugitive to surrender. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to just compensation under the Fifth Amendment of the United States Constitution for the intentional destruction of their house. The Tenth Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. To read more about the background of the case click here. To review OCA’s Amicus Brief on a cert petition to the United States Supreme Court click here.
April 16th, 2020 — In Uncategorized
PA Supreme Court Rejects Takings Challenge To COVID-19 Shut-Down Orders
In one of the first comprehensive court opinions on an issue of national interest, the Pennsylvania Supreme Court rejected business owners’ challenges to the recent shut down orders issued by Governor Tom Wolf in response to COVID-19 on various legal grounds. Ruling that the orders were supported by a compelling public health rationale and were not a regulatory taking of property because they were temporary in nature, the court upheld them. For a full review and analysis of the opinion, click here.
April 15th, 2020 — In News & Events
Webinar on Safety vs. Freedom: Are There Limits to Lockdowns?
OCA Hawaii member Robert Thomas joined Keli’i Akina, President and CEO of the Grassroot Institute of Hawaii on April 14th for an important Webinar on Safety vs. Freedom in the time of COVID-19. For those who missed the webinar, you can view a list of the important topics covered as well as a recording of the entire webinar by clicking here.
April 7th, 2020 — In News & Events
Can the Government Commandeer My Hotel to Fight COVID-19?
OCA Affiliate member Ivy Cadle of Baker Donelson asks in his recent posting, “With the COVID-19 pandemic in full swing, can the government take private hotel rooms to expand the capacity to care for individuals with or exposed to the virus?” Governmental entities at every level are taking unprecedented steps to fight the COVID-19 pandemic as they work to slow transmission of the virus and to prevent health care facilities from reaching overcapacity. Given that many health care facilities are nearing capacity already, it is easy to envision a world where governmental entities could appropriate private property to help respond to the crisis until the efforts are able to “flatten the curve.” The federal government has already taken the formal steps to allow the appropriation of private property. When President Trump declared a national emergency under the Stafford Act on March 13, 2020, he authorized the administrator of the Federal Emergency Management Agency (FEMA) to exercise the right of eminent domain to acquire both physical facilities and supplies. Even though FEMA is required to compensate owners, the Stafford Act also allows for an immediate right of possession. Accordingly, FEMA could immediately appropriate buildings, land, food, medicine, testing supplies and medical equipment, parts, fuel, etc. Read more.
March 20th, 2020 — In News & Events
Private Property Owners May Soon Find Themselves on the Front Lines of Government Efforts to Combat the Coronavirus
On March 13, 2020, President Trump declared a national emergency under the Stafford Act in an effort to combat the spread and transmission of COVID-19 (commonly referred to as the coronavirus). Relevant to property owners across the country, the Stafford Act allows the administrator of the Federal Emergency Management Agency (FEMA) to exercise the right of eminent domain to immediately acquire, not only the physical facilities it needs (like buildings and land), but also supplies, such as medicine, food, equipment, respirators, and other parts and supplies. In short, the Stafford Act gives FEMA broad eminent domain powers to take what is necessary to address this national emergency. Below are three recent postings by OCA members concerning the potential consequences of such actions on the statutory and constitutional protections afforded property owners who may be subjected to the power of eminent domain under the Stafford Act. While we must all try to protect each other from the spread of COVID-19, it is important that those facing the potential taking of their property and property rights to fight this pandemic are properly counseled and represented by attorneys experienced in eminent domain takings. OCA lawyers are the leading eminent domain lawyers in the country who are dedicated to the defense and protection of private landowners nationwide. Katie Gray: “Condemnation and COVID-19: When National Emergencies and Eminent Domain Collide” Anthony DellaPelle: “Can The Covid-19 Pandemic Allow the Government to Seize My Property?” Robert Thomas: “Emergencies, Police Power, Commandeering, And Compensation: Essential Readings”