Yearly Archives: 2022

In Lafayette City-Parish vs. Bendel Partnership, the Court of Appeals for the Third Circuit in Louisiana ruled in favor of OCA Member Randy Smith, when it sided with his client that LCP lacked the prerequisite necessity to take the property by eminent domain for a detention pond project. Agreeing with the trial court’s findings based on an extensive evidentiary hearing, the Court ruled that the Parish had acted arbitrarily, capriciously, or in bad faith in its’ decision to take the property. In the case, the property owner had claimed that the property was not being taking for a valid public purpose and more property than was needed for the project was being taken. The court also ruled that the property owner’s reservation of an attorney fee claim against LCP was properly preserved. The Institute for Justice filed an Amicus Brief in the case in support of the property owner. For a full reading of the decision and the facts upon which the decision was based click here.

Today, an excellent Student Program started off the Brigham-Kanner Property Rights Conference at William & Mary law school. Named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights and their efforts to advance constitutional protection of property, the conference began in 2004 and continues to this day.  The conference is designed to bring together members of the bench, bar, and academia to explore recent developments in the law that affect property rights. The Brigham Kanner Prize is awarded each year to an individual whose work affirms that property rights are fundamental to protecting individual liberty. For 2022, the Prize will be given to James Burling, Vice President of Legal Affairs at the Pacific Legal Foundation.

In response to an emergency ordinance recently approved by the Town of Vail to suspend all permits for any activity on Vail Resorts’ property in East Vail, Colorado, pending the filing of a condemnation action to preclude a planned affordable housing project, OCA Member Sarah Kellner has filed a lawsuit against the Town calling its actions both “drastic and unprecedented.” Vail Resorts objects to the emergency ordinance because the town was well aware of the proposed workforce housing project for months and even years. “A town cannot circumvent its own code by creating its own emergency,” the lawsuit states. The lawsuit also contends that Vail has permitted other projects “squarely in the middle” of bighorn sheep range but has raised environmental impacts as a reason for preventing Vail to build its project “on the very edge of that same range.” The lawsuit asks the court to overturn the emergency ordinance and require the town to issue permits as needed for the project.

Don’t miss next year’s Eminent Domain and Land Valuation Litigation Conference taking place in Austin Texas from February 2-4th. Celebrating its 40th Year, this conference has become the place to be for any professional working in the area of property rights or eminent domain law. For those interested in registering early, not only for the conference, but for the limited book of discounted rooms at the conference hotel, simply click here.  

Aided by many people, including OCA’s Maryland member Joe Suntum, the Eaddy family finally prevailed in their 18 year battle with the city of Baltimore and New York-based La Cité Development to preserve their home from being taken by eminent domain. “Losing my home is like a death to me,” states the message painted some time ago on the side of the Eaddy house, a place they had lived in since 1992. Characterizing the threat of eminent domain as “violent,” Sonia Eaddy described the slow and agonizing deterioration of her historically black neighborhood of Poppleton in West Baltimore over the many years that the city and developer planned to “revitalize” the area, with very little progress being made. Under the cloud of eminent domain, like so many other neighborhoods, Poppleton experienced chronic displacement and demolition, except for two sleek buildings dubbed Center/West.

Clint Schumacher recently interviewed the leaders of three important national property rights organizations on his Eminent Domain Podcast. They were Dana Berliner, Senior Vice President and Litigation Director for the Institute for Justice; James Burling, Vice President of Legal Affairs for Pacific Legal Foundation, and Leslie Fields, Executive Director of the Owners’ Counsel of America. During the podcast, you will learn how each got their start in the field of eminent domain and property rights, the landmark cases that have shaped their careers, and the issues and cases that are on the horizon at each of their organizations. To hear the entire podcast, click here.

Owners’ Counsel of America was founded in 2000 by Toby Prince Brigham, one of the premier eminent domain lawyers in the country. After graduating from Yale University in 1956 and the University of Florida College of Law in 1959, Mr. Brigham devoted the next 54 years of his law practice exclusively to the defense of property rights on behalf of private landowners. At the time he began practicing law, eminent domain was not a special area of practice and few lawyers were experienced in handling such cases. In fact, Mr. Brigham was instrumental in developing the field of eminent domain and condemnation litigation as a focused and dynamic discipline—a practice area which is a unique blend of constitutional rights, civil rights, property rights, land use laws, valuation and appraisal theory, and trial advocacy. Through the ALI-CLE Eminent Domain and Land Valuation Litigation Conference, which he co-chaired for many years, Toby inspired a generation of practitioners to take up the cause of defending and protecting property owners from all manner of government takings. In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI- CLE Eminent Domain conference and associated OCA events held annually in January or February. This unique scholarship affords the student the opportunity to learn about the substantive law of eminent domain and property rights, while also meeting and networking with the leading […]

It may come as a surprise to many property owners that depending upon the gun laws in a given state they may not have any legal right to prevent trespasses onto their own property from hunters and dogs seeking to retrieve. But recently several property owners in Virginia sued the Department of Wildlife Resources over the impact of Va. Code § 18.2-136  which provides that “fox hunters and coon hunters, when the chase begins on other lands, may follow their dogs on prohibited lands, and hunters of all other game, when the chase begins on other lands, may go upon prohibited lands to retrieve their dogs, falcons, hawks, or owls but may not carry firearms or bows and arrows on their persons or hunt any game while thereon.”  Here’s the Petition, which seeks both declaratory relief and just compensation. The property owners are being represented by the Pacific Legal Foundation.

Owners’ Counsel of America Honorary Member and Senior Lawyer with the Pacific Legal Foundation Robert Thomas has recently written an article on the U.S. Supreme Court’s recent blockbuster regulatory takings decision in Cedar Point v. Hassid. The article was published by The Practical Real Estate Lawyer. In it, Mr. Thomas concludes that in arriving at its decision defining the critical term in the case—the meaning of “private property” in the Fifth Amendment, the U.S. Supreme Court essentially applied what he calls an “intuitive approach.” To read what this means and the article in its entirety, click here.

Property owners from across the country have been reaching out to Owners’ Counsel of America in search of answers to the scourge of government code enforcement actions being leveled against them. These actions can sometimes lead to the seizure of private property. While this is not a situation that OCA or OCA members generally handle, in an effort to provide some useful guidance and assistance to property owners being subjected to this type of action, OCA has drafted an article containing basic information that can be accessed via its website under Landowner Resources. The article can also be read by clicking here. While every situation is different and largely dependent upon the ordinances and laws in the subject jurisdiction, there are steps and measures that property owners can take to help mitigate the impact of code enforcement claims, particularly those that may lead to the loss of property or valuable property rights. As in every situation involving your must valued physical asset, your property, consultation with an attorney knowledgeable about code enforcement actions in your jurisdiction is highly recommended.