Author: OwnersCounsel

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.

OCA Honorary Member and Vice President of Legal Affairs for the Pacific Legal Foundation, James Burling, writes in a new article about the many ways and means by which governments, particularly in California, discriminated against Asian immigrants’ right to earn a living and hold property. When the Statue of Liberty was erected in 1875, Jim writes, it stood as a beacon for freedom and openness, welcoming immigrants from around the world. Millions came seeking a country where they could flourish and pursue their own happiness. But that promise rang hollow for many Asian immigrants who had to endure a host of state laws—and state constitutions as well—designed to stop immigration and deny employment opportunities, and even the right to own property. By stripping these immigrants of the right to earn a living and later the right to own property, state-sponsored discrimination against Asian immigrants became a hallmark of late 19th- and early 20th-century legislation. To read Jim’s article in its entirety, simply click here.

A state judge recently halted work on a Louisiana drainage project being promoted by the Lafayette Consolidated Government (LCG) that it claims is designed to ease flooding and drainage issues. But the property selected for this work has belonged to the same family for almost 100 years, and according to the family’s lawyer, Randall Smith, lacks necessary permits and will in no way address the drainage concerns that the project is intended to rectify. “I applaud LCG for wanting to do something about drainage and flooding, and I know the mayor has made a lot of campaign promises about this. But this is property that is high and dry, land that doesn’t flood, and should not be excavated to a low level to hold water, when there’s no showing that that’s going to accomplish anything other than deprive my clients of land that they, as a family, have owned for almost a century.” On the necessity issue LCG is relying on the expert testimony of its’ engineer Pam Granger.  But Mr. Smith questions her ability to testify objectively about the project. “She’s been hired to manage the detention pond projects and has a public contract that’s public record. She has a percentage interest in the contracts” and stands to gain financially from their completion. We think that’s highly unusual and inappropriate.”

James Burling, Vice President of Legal Affairs at Pacific Legal Foundation, will receive the 2022 Brigham-Kanner Property Rights Prize at William & Mary Law School’s 19th annual Brigham-Kanner Property Rights Conference on September 29-30 sponsored by the William & Mary Property Rights Project. The Property Rights Project presents the award each year to an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights. “James Burling is among the foremost students of the relationship between citizens and their government in contemporary America,” said Steven J. Eagle, Professor Emeritus of Law at George Mason University’s Antonin Scalia Law School and the 2019 Brigham-Kanner Prize winner.

The North Carolina Department of Transportation will pay $2.9 million to a landowner after its road-widening operation required it to take part of a three-acre tract of land in Caldwell County that had previously had an unobstructed view into the Grandfather Mountain Gorge, OCA North Carolina member George Autry reports. NCDOT had initially contended that the plot, owned by the Arbuckle family, was unsuitable for development altogether. But after expert engineers proved this to be untrue, NCDOT acknowledged that damages would be caused. George Autry was joined by OCA Members Stephanie Autry and Jeremy Hopkins in representing the Arbuckles. The family contended that the property was worth more than three-and-a-quarter million dollars. NCDOT had initially offered only $432,950. An additional issue increasing the potential recovery in the matter was the especially long period over which it had dragged out in court. The parties had been in dispute since 2011. “There was well over $1.5 million in interest that was at stake,” Hopkins said. 

An historic station that was built as the Pennsylvania Railroad’s Conshohocken Station circa 1890 is now the subject of a taking by the Borough of Conshohocken for alleged park purposes.  Although passenger service at the Outbound Station ceased in 1962, after the property was purchased by Joe and Barb Collins and lovingly restored, it was used for nearly 30 years as an antique store, and more recently, leased to the Couch Tomato Cafe. OCA Emeritus Member Michael Faherty recently wrote an open letter to the Borough challenging their right to take the property by eminent domain on several grounds, including a failure to identify a specific use for the property.  “Instead of listing an identified, researched and needed public purpose,” Mr. Faherty states in his letter, “the proposed ordinance only listed multiple possible, future public purposes as…including, but not necessarily limited to, public open spaces, parks, recreation, and public parking. Such a vague assertion of potential public purpose fails to adequately state the purpose as required 26 Pa. C.S.A.(b)(4).”

In Cheshire Hunt v. United States, the Court of Federal Claims ruled recently in favor of landowners who held property abutting an abandoned railway that was subsequently converted into a public recreational rail-trail called the Legacy Trail. The property owners were represented by OCA Member, Thor Hearne. As part of the rail-trail conversion, Sarasota County had demanded that the owners remove fences and other structures from the one-hundred-foot-wide rail-trail corridor, even though those structures had existed for decades with the County’s and the railroad’s permission, and even though the structures had not interfered with the railroad’s operations. In the newly issued decision, the court held that the federal government was responsible for paying for the cost of removing these structures under a given set of criteria. Thor Hearne has successfully represented many property owners in these rails to trails conversions and is considered an expert in the area. For more information and background about this case, visit the True North Law Firm website.