Yearly Archives: 2023

Owners’ Counsel of America is saddened to announce that Gideon Kanner, a fierce defender of property rights, who helped to found the California Academy of Appellate Lawyers, has died at the age of 93. While a complete list of Gideon’s professional accomplishments are too extensive to chronicle here, below are but a few highlights from his extraordinary career. After 10 years as a rocket engineer, followed by a stellar private eminent domain and appellate practice, in 1974 Gideon became a full-time Professor at Loyola Law School in Los Angeles, where he taught property, land use, eminent domain, and advanced appellate advocacy. Over the span of his lengthy career, Gideon acted as counsel for parties and amici curiae in numerous high profile eminent domain and takings cases. His oratory skills were legendary, with many regarding him as one of the finest appellate advocates to come before the California Supreme Court and U.S.Supreme Court.  As a professor, Gideon taught his students with the same passion that he exhibited whilst delivering the National Law Update at the ALI-CLE Eminent Domain Conference, and writing about developing takings law in his monthly periodical, Just Compensation. Other Gideon writings have appeared in numerous law journals and the general press, including the Wall Street Journal, the Los Angeles Times, and the National Law Journal. For more information about Gideon and his professional achievements read this article recently published in Robert Thomas’ Inverse Condemnation Blog.

Public universities have a long history of expanding campuses in the name of progress and economic growth. But often, these expansions used eminent domain and property seizures to disrupt and diminish thriving Black communities across the country. In the second half of the 20th century, the rapid growth of public universities across Virginia and many other states uprooted hundreds of Black families, hindering them from accumulating wealth in the most American way — homeownership. An investigative series by The Virginia Center for Investigative Journalism and Pro Publica uncovers the damaging social and economic impacts on Black communities of college expansions at Christopher Newport University, Old Dominion, and the flagship University of Virginia. In a new panel discussion entitled “Erasing the Black Spot,” journalists and others share their findings and stories from the residents who were displaced by these expansions. OCA Virginia Member, Josh Baker also participated in this important panel to share his thoughts on the part eminent domain played in this disturbing chapter of American history. To view the panel discussion in its entirety, click here.

In honor of lawyer Toby Prince Brigham’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. Next year’s conference will be held from February 1-3 in New Orleans, La. 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 lawyers in these practice areas from across the  country. This is what last year’s Toby Prince Brigham OCA scholar, Shelly Vallone, had to say about her experience: “”Attending the ALI-CLE Conference as the Toby Prince Brigham OCA scholar was impactful, both in my education as a law student and in my growth as a future attorney. Through this scholarship, I was introduced to lifelong friends and valued colleagues who are invested in my success. I am grateful to be a part of this community, and I look forward to attending the conference next year. ”  If you are interested in applying for or learning more about the Toby Prince Brigham OCA Scholarship, please contact Leslie Fields, Executive Director of OCA. You can reach Ms. Fields by email at ownerscounsel@gmail.com or by phone at 303-806-5155. Note that the deadline for submitting the complete application for this year will be October 2, 2023.

Owners’ Counsel of America is pleased to announce that OCA Honorary Member Michael Berger, Senior Counsel with the law firm of Manatt, Phelps & Phillips, will be honored with the receipt of the Jefferson B. Fordham Lifetime Achievement Award, presented by the American Bar Association (ABA) at its’ 2023 ABA Annual Meeting in Denver, Colorado on Friday, August 4, 2023. As one of the top land use and condemnation attorneys in the United States, Berger will be recognized for his outstanding contributions to the practice of state and local government law over the course of his career. Mr. Berger has argued four cases before the U.S. Supreme Court, as well as cases before appellate courts throughout California, numerous federal courts of appeal and other state supreme courts. He is also a frequent author of amicus curiae briefs in various appellate courts, particularly the U.S. Supreme Court, pressing client interests in important pending cases. Mr. Berger has spent more than 50 years as a practicing lawyer, adjunct professor, faculty member at various continuing legal education courses and author of both practical and scholarly articles in the fields of land use and eminent domain law. The Jefferson B. Fordham Awards are the highest honors given by the ABA Section of State and Local Government Law.

Join OCA Member and Pacific Legal Foundation lawyer Robert Thomas on August 9th as he moderates a podcast on the U.S. Supreme Court’s 2022 term and the three major property cases decided in favor of property ownership: Tyler v. Hennepin County (government’s keeping the excess value when seizing and selling a home to satisfy a property tax debt is a taking), Wilkins v. United States (is the federal Quiet Title Act’s statute of limitations a jurisdictional bar?), and Sackett v. EPA (the scope of Clean Water Act wetlands jurisdiction). Over this one hour webcast, Robert and his panelists(law professor Emilio Longoria and Sophia Holley of the firm of Keating Muething & Klekamp)will help you gain a better understanding of these opinions, the current state of takings and property law, and what these decisions mean for practicing attorneys. For more information about the webcast, click here.

Owners’ Counsel of America, along with four other national property rights groups recently filed an Amicus Brief challenging the U.S. government’s request to revisit a property owners’ takings claim based on the Trails Act. The groups’ brief noted that several of the court’s rulings dating back two decades established a clear precedent on the matter which the government was clearly seeking to overturn. Established precedent holds that the Trails Act gives rise to a per se physical taking (not a regulatory taking) of a landowner’s private property when the government first invokes section 8(d) of the Trails Act. See Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 8 (1990) (Preseault I) (The Trails Act “gives rise to a takings question in the typical rails-to-trails case because many railroads do not own their rights-of- way outright but rather hold them under easements or similar property interests.”) and Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en banc) (Preseault II) (Trails Act imposes “a new easement for the new use, constituting a physical taking of the right of exclusive possession that belonged to the [landowners].”).Following the filing of the all briefs, the United States Court of Appeals for the Federal Circuit denied the government’s Petition for Rehearing. The property owners were represented by OCA members Thor Hearne and Stephen Davis.

A North Carolina jury awarded a property owner $5,084,000 earlier this week for the taking of his partially redeveloped hotel. Amar Patel was represented by the Cranfill Sumner LLP attorneys George Autry and Jeremy Hopkins, who are also members of Owners’ Counsel of America. The trial lasted six days with the jury ultimately deliberating for approximately 50 minutes. The department initially offered Mr. Patel $244,825 for the partial taking of his property located at the intersection of I-95 and Spring Branch Road in Dunn. At the trial, the property owner presented evidence from two appraisers suggesting damage in the range of $4,916,209 to $5,251,000. “Mr. Patel spent years buying and renovating his property,” says OCA member George Autry. “It is gratifying to have the jury validate that hard work and recognize the damage the Department of Transportation project will have on it.”  “This was about getting Mr. Patel fair value,” added Jeremy Hopkins.

Geraldine Tyler, age 94, owed Hennepin County $2,300 in unpaid property taxes on her Minnesota condominium. When that small amount ultimately generated $12,700 in fees, the County seized her condo and sold it to pay the taxes and fees. By the time the condo was sold for $40,000, Tyler’s total debt came to $15,000. But the county did not return the excess $25,000 to Tyler. Instead, it pocketed the excess equity in her home. When Tyler sued the county to get the $25,000 back, the Court of Appeals for the Eighth Circuit held that a Minnesota tax statute “abrogated” her property right in her home equity.  Now the Supreme Court has taken Tyler’s case, and the Cato Institute, joined by the American Civil Liberties Union, ACLU of Minnesota, the National Association of Home Builders, and Owners’ Counsel of America has filed an amicus brief supporting her position. Click here if you would like to view this brief.

In his recent article written for the New York Law Journal and entitled ‘Urban Renewal, An Assault on Black Neighborhoods,” OCA member Mike Rikon speaks of  how interstate highways, many of which were built to serve white suburban commuters, “were shoved through black neighborhoods, causing surrounding blight and pollution.” Mr. Rikon says these actions were fueled by the Federal Housing Act of 1949, which authorized cities to use eminent domain to clear “blighted neighborhoods” for a “higher use.” To read Mr. Rikon’s excellent article in its entirety click here.

OCA’s Iowa Member, Dan Manning, is now representing several property owners in Cedar Rapids who are losing their homes because of past floods and fears about future flooding in their neighborhood near the riverfront area. Calling the takings “above and beyond” the usual scenario, Dan Manning explained the difficulty his clients faced in finding replacement property. “These are their homes, they’ve been there and they’re very unique in their own way,” said Manning. Across the country, many private property owners are facing the same challenges and possibility of being forced to relocate due to climate impacts. To read more about this story click here.