OCA Blog

December 28th, 2015 — In Articles

When Can Property Owners Challenge Eminent Domain?

While state and federal government agencies have the power of eminent domain – to take private property for public use – that power is not unlimited.  Eminent domain power is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution and by individual state constitutions and laws.  If the government seeks to take your property, there are potential defenses an eminent domain attorney may employ to challenge the taking.  While certain defenses challenge the condemnation outright, others focus on ensuring that you receive just compensation for the taking of your property. In this article, we provide a brief overview of four of the most common defenses to condemnation:

  • The government lacks the authority to condemn your property
  • The government lacks a sufficient public purpose for condemnation
  • The government does not your property for the public project
  • The government has not offered just compensation for your property

Common Defenses to the Exercise of Eminent Domain

The Government Lacks the Authority Needed to Condemn Your Property

In order to condemn your property, the government agency seeking to exercise eminent domain must have the authority to do so. Government agencies cannot simply make a decision to condemn a private owner’s property and move forward. This authority may be granted by a statute that is either general in nature or enacted for a specific purpose.  Departments of transportation, public utilities, and the federal government generally have the power of eminent domain.

A landowner may be successful in challenging the authority to take private property in situations where the condemnor assumed it had been granted eminent domain authority when, in fact, it had not.  To defend against a taking, eminent domain lawyers may present evidence that a statute did not include a particular type of project, expressly omitted it or required certain steps to be followed – such as a 3/5 vote of the state legislature for approval to use eminent domain.

The Government Lacks a Sufficient Public Purpose for Condemnation

The power of eminent domain only allows condemnation of private property for a legitimate public purpose. While “public purpose” has been interpreted broadly, there may be defenses against the government’s exercise of eminent domain. If the government cannot justify its proposed condemnation with a valid public purpose, its actions may violate your constitutional rights.

Recently, local governments and redevelopment authorities have used the power of eminent domain to condemn private property on behalf of developers, to pave the way for new construction in areas designated as “blighted” by municipal authorities. The intended public purpose or benefit may be to increase tax revenues and ignite economic development for a struggling municipality or to replace or improve what some may consider to be a “blighted” or older community.   In some states, such a purpose has been expressly prohibited by statute or constitutional amendment and a public purpose challenge may be successful.

The Government Does Not Need to Condemn Your Property for a Public Project

Even if the government has established a valid public purpose, it may not condemn your property if the intended acquisition of your property is not “necessary” to the project. Under most state statutes, condemnors are only authorized to take enough private property to complete the intended project.  Some landowners have successfully defended their property and defeated a taking by arguing a lack of necessity.

In such cases, the landowner’s eminent domain attorney may have challenged the take on the basis that the owner’s land was simply not necessary for the project.  For this defense to be successful, the owner’s condemnation attorney must present evidence that the project could be constructed without the subject property and, as such, that land was not needed.  If the condemning agency identifies more property for condemnation than absolutely necessary, a defense of this nature may be successful to defeat the taking.

The Government Wants to Take Your Property Without Paying Just Compensation

Finally, if the government has the authority, follows the required procedures and the condemnation of your property is necessary to execute a true public purpose, obtaining just compensation may be your only option under the law.  If you feel that the government has not made a reasonable offer for your property, your eminent domain lawyer may be able to negotiate a fair settlement on your behalf.

In many cases, the condemnor’s appraiser only considers the value of the land appropriated not the damages the taking will have on your remaining property.   If the condemnor has not offered compensation for the reduction in value to your remaining property or to cure any negative impacts to your remaining property, an eminent domain attorney may help negotiate such compensation.  For a property owner facing eminent domain, it is important to understand how properties are valued in condemnation proceedings and what is compensable under the law.

Do You Have Questions? Contact an about Eminent Domain Attorney at Owners’ Counsel of America

The defenses available to you will depend upon the unique facts and circumstances involved in your case. If you are facing condemnation and want to learn more about protecting your property rights, contact an eminent domain attorney with Owners’ Counsel of America.

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December 22nd, 2015 — In Articles

U.S. Supreme Court Asked to Consider Constitutional Challenge to California Zoning Ordinance

As we previously discussed, Owners’ Counsel of America (OCA) and the National Federation of Independent Business Small Business Legal Center (NFIB) have asked the U.S. Supreme Court to review an important property rights case decided by the California Supreme Court earlier this year. If not overturned, the case, California Building Industry Association v. San Jose, No. 15-330 (September 16, 2015), could set a damaging precedent that allows California agencies to impair the value of private property without paying the property owners just compensation.

How the California Supreme Court’s Decision Affects Property Owners’ Rights

Under the U.S. Constitution and the constitutions and laws of every state, government agencies can only exercise the power of eminent domain upon payment of just compensation. The exercise of eminent domain can take many forms, from direct seizure of private property to regulating the use of private land which impairs its value.

Unfortunately, this fundamental protection is often overlooked by government agencies. OCA attorneys across the country fight to protect landowners’ rights against overzealous government action. The OCA/NFIB brief in California Building Industry Association v. San Jose is one recent – and important – example.

The case arose out of a city ordinance that requires residential developers to help mitigate the Silicon Valley affordable housing crisis. Under the ordinance, any developer constructing more than 20 units is required to either:

  • Designate 15 percent of the units for sale at below-market prices to qualifying buyers for up to 55 years,
  • Construct alternate affordable housing, or
  • Give land or money to the City of San Jose.

The California Building Industry Association (CBIA) challenged the ordinance as an illegal “exaction” and an unconstitutional taking. In short, it argued that the ordinance denied property owners of value – albeit for a public purpose – without just compensation. The California Supreme Court disagreed and upheld the ordinance.

Why OCA Has Asked for the U.S. Supreme Court’s Review

If allowed to stand, the California Supreme Court’s decision could have wide-ranging implications for property owners throughout the state, and possibly even nationwide. Along with the face value of the California Supreme Court’s ruling in San Jose’s favor, allowing the decision to stand would represent a departure from existing U.S. Supreme Court jurisprudence that provides the protections sought by the CBIA.

In a line of cases dating back to 1987, the U.S. Supreme Court has held that conditions such as those imposed by the City of San Jose are subject to heightened scrutiny under the unconstitutional conditions doctrine.   In Nollan v. California Coastal Comm’n, Dolan v. City of Tigard, and St. Johns River Water Management District v. Koontz, the Court established that the government must show that what a developer proposes to do or build contributes to a “problem,” and that the government-imposed condition will mitigate the impact and is proportional to that impact. However, in California Building Industry Association v. San Jose, the California courts applied a lesser, non-constitutional standard that merely requires a “rational basis” for the ordinance in question.

In the California courts’ eyes, the ordinance does not constitute a taking since developers have the option to accept a reduced (below-market) purchase price or construct alternate affordable housing instead of giving up land or money to the government. This, according to the courts, makes the ordinance a mere “zoning restriction” not subject to heightened scrutiny. The courts found that since the ordinance aids (at least in theory) in resolving the affordable housing crisis – a crisis that has not been blamed on residential developers – it has a “rational basis” that supports the conditions imposed by the City of San Jose.

At OCA, we are strongly opposed to the California Supreme Court’s decision. Regulating the value of a private owner’s property is a clear form of condemnation, and one that cannot be taken lightly. We are urging the U.S. Supreme Court to step in and apply its longstanding precedent that provides appropriate protections for property owners’ rights.

Owners’ Counsel of America | Leading Inverse Condemnation Attorneys Nationwide

Owners’ Counsel of America is a network of the nation’s leading attorneys in the areas of inverse condemnation and eminent domain. If you need legal assistance with a property rights matter, please contact us online or find an OCA lawyer in your state today.

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December 14th, 2015 — In Articles

Florida Court Upholds Attorneys’ Fees Award for ‘Excessive Litigation’ in Condemnation Cases

When the government takes a private citizen’s land through the exercise of eminent domain, it is obligated to pay the landowner “just compensation” for the property taken. This requirement is established by the Fifth Amendment to the U.S. Constitution and the constitutions in all 50 states, and it serves to protect the fundamental rights of landowners across America.

But, this begs the question: What is just compensation? How is it calculated, and who gets to decide?

The answers to these questions depend on where your property is located. Different states have taken different approaches to determining what constitutes “just compensation,” and in some states, entire categories of losses are off of the table, such as loss of business good will. One category some states include the calculation of “just compensation” is the owners’ reasonable attorneys’ fees incurred in defending his or her property rights in eminent domain litigation.

Attorneys’ Fees and Just Compensation: A State-By-State Issue

Condemnation litigation can be expensive for all parties involved. Unfortunately, individual property owners and businesses may bear the brunt of the financial impact of taking a condemnation case to court.

Recognizing the burdens of litigating eminent domain proceedings, states such as Florida, Michigan, New York and Ohio, have enacted laws that allow property owners to recover attorneys’ fees under certain circumstances. These laws are generally based on the understanding that property owners who are forced to take legal action to defend their property rights against the government should be entitled to recover the costs of their defense as a component of just compensation.

The Florida Supreme Court’s Decision on Attorneys’ Fees for ‘Excessive Litigation’ in Eminent Domain

A recent case from the Florida Supreme Court underscores the important role that attorney fee statutes play for property owners facing condemnation.

In Joseph B. Doerr Trust v. Central Florida Expressway Auth., No. SC14-1007 (Nov. 5, 2015), the property owner succeeded in challenging the Expressway Authority’s offer of just compensation.  The jury awarded $5.7 million – $800,000 above the Expressway Authority’s offer of $4.9 million. The property owner also sought to recover its attorneys’ fees under Florida’s condemnation statute, and the trial court awarded $816,000 in fees to the owner’s eminent domain attorneys.

The Expressway Authority appealed, arguing that under the statute’s “benefits achieved” formula (a percentage of the difference between initial offer and final compensation), the attorneys’ fee award should have been limited to $227,652. After remand and a second appeal, the question made its way to the Florida Supreme Court.

The Florida Supreme Court sided with the property owner. While acknowledging that the state legislature has the authority to establish formulas (like the “benefits achieved” formula) for calculating attorneys’ fees, the Court held that it cannot do so in a way that deprives property owners of their constitutional rights. In Florida, this includes the right to “full compensation” in eminent domain litigation. In this particular case, the lower court found that the Expressway Authority “had engaged in a ‘clear pattern’ of excessive litigation,” and the Court held that this justified an award above and beyond that afforded by the statutory formula.

Of course, in states without attorneys’ fees statutes (such as Hawaii), the property owner may not be able to recover attorneys’ fees. OCA lawyers offer a free initial consultation to property owners facing condemnation or who may be concerned that their property has been affected by government action.  OCA’s eminent domain attorneys will speak with you to gather the facts and will answer your questions about the process and your rights.   There is no fee for this initial consultation.

Contact an Eminent Domain Attorney at Owners’ Counsel of America

Owners’ Counsel of America (OCA) is a network of experienced eminent domain attorneys who represent property owners nationwide. If you are concerned about whether you can afford to hire an eminent domain attorney to represent your property rights in a condemnation proceeding, contact us  to coordinate a free initial consultation.

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December 14th, 2015 — In News & Events

ALI-CLE Eminent Domain and Land Valuation Litigation Course 2016

Eminent domain attorneys, appraisers, engineers and other professionals in the field of eminent domain, property rights and land valuation litigation will gather this January to discuss the hot topics, newest cases and emerging issues impacting eminent domain law and those who practice in this area.  The 33rd Annual American Law Institute Eminent Domain and Land Valuation Litigation course is scheduled to take place January 28-30 at the Hotel Van Zandt in Austin, Texas.

Who Should Attend

This annual conference brings together lawyers, appraisers, right-of-way professionals, and leading academics from around the country to share knowledge and experiences in eminent domain and property valuation law.  The course also offers professionals the opportunity to engage with and learn from those who may be on the other side of the issue – both property owner representatives and condemning agents attend and present in this unique forum.

For those who may be new to the practice, returning from time away or just looking for a refresher, a Condemnation 101 tract is offered on Thursday.  These sessions take a look at the basics of preparing and presenting an eminent domain case.  More experienced professionals may choose from concurrent sessions offering either substantive takings law courses or practical practice pointers.  All of the courses are taught by nationally recognized and experienced professionals.

Course Topics, Speakers and Schedule

A number of eminent domain attorneys with the Owners’ Counsel of America will be presenting at this course as well as condemning authority attorneys, a retired Minnesota Supreme Court Judge and well-known law professor.   A selection of this year’s topics is listed below:

• A review of the First Ten Years of the Roberts Court and the Court’s property rights opinions presented by OCA Honorary Member & Pacific Legal Foundation Litigation Director Jim Burling
• Valuation concerns in pipelines and energy corridor takings discussed by a panel including OCA’s Joseph Waldo of Virginia
• Advice to condemnees from condemnors
• Successful management of relocation matters presented by OCA attorneys Jill Gelineau of Oregon and Jack Sperber of Colorado along with Right-of-way and Relocation specialist Michael Sullivan
• Engineering issues in power line cases with OCA Florida Member Andrew Brigham and Engineer Robert C. Dew, Jr.
• First amendment claims in property rights litigation: free speech, defamation, Freedom of Information Act (FOIA), and Religious Land Use and Institutionalized Persons Act (RLUIPA) claims with Institute for Justice Litigation Director and OCA Honorary Member Dana Berliner
• An interview by OCA’s Robert Thomas with filmmaker Ted Balaker about his upcoming movie “Little Pink House” – a story about the infamous Kelo case

Check out the full schedule online here or view the brochure linked below.

33d Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, Jan. 28-30, 2016, Austin, TX by robert_thomas_5

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November 30th, 2015 — In Articles

How is Property Valued in a Condemnation Proceeding?

When a government agency, utility, energy company or other entity takes private property through eminent domain (known as “condemnation”), the landowner is entitled to the payment of just compensation. This right to just compensation is firmly established in the Fifth Amendment to the U.S Constitution, as well as state constitutions and laws across the country.

But, what does it mean for compensation to be “just,” and who decides what is a just amount? Someone has to place a value on the land taken.  And, when the “taking” involves an easement or regulation, the property owner’s losses may not be strictly tied to the value of the affected property.

Determining What Constitutes Just Compensation

The Fifth Amendment of the United States Constitution provides that private property may not be taken for public use without payment of “just compensation”  to the private owner of the property. A property owner should be fairly and fully indemnified for the loss of the property.  As such, an owner has the right to recover the equivalent in financial compensation of the property condemned.   

Through the payment of just compensation, a landowner is entitled to be restored to the financial position he or she would have been if the property had not been taken. Generally, the measure of damages for property taken by eminent domain is its fair market value.  Fair market value is a practical standard to aid the parties and courts in determining what constitutes just compensation.  Fundamentally, this involves obtaining one or more appraisals of the property being condemned.

However, as we have previously discussed, the appraisal of property for purposes of a condemnation proceeding will not necessarily be the same as its appraisal for other purposes, such as for purposes of obtaining bank financing. As a result, working with an attorney and appraiser who have specific experience in eminent domain matters will be critical to ensuring that you receive just compensation for your condemned property.

Conducting Appraisals for Condemned Property

Generally speaking, appraisers in eminent domain cases use three different approaches to value real property that is being condemned. These are:

  • The market data (comparable sales or sales comparison) approach
  • The cost approach
  • The income capitalization approach

The market data approach is most common. With this approach, the appraiser will analyze recent sales of properties that are comparable to the property being condemned in terms of size, location, zoning and other factors. The appraiser will then perform an adjustment to account for specific details and may weigh comparables differently in order to come up with a market value for the subject property.  The market data approach theorizes that a property that is similar in size, style, age, improvements, location, and all other characteristics should have a value similar to other comparable properties in the area around the same date of sale.

The cost approach will generally be used to appraise unique and special-use properties, however, it may also be the best method to appraise condemned property when market data may be scarce. The cost approach method estimates the replacement value of a property by determining the cost of its components – the land and improvements.  Rather than valuing a property as a whole, the cost approach establishes the value by adding the separate values of the land and improvements together.

The income capitalization approach is generally employed with income-producing properties, such as rental properties and some commercial properties.  The income capitalization approach estimates the property’s value by evaluating how much income a property is capable of producing.  This approach is the most technical of the three approaches.  This approach considers three principals: anticipation, supply & demand and substitution.

  • Principle of Anticipation – A buyer of property will base the purchase on an expectation of the future benefits. Value is defined as the present worth of future benefits, or, how much a buyer will pay today for something that he believes he will get in the future.
  • Principle of Supply and Demand – The value of property is a function of supply and demand. For example, the rent an owner can set for property will depend on the amount of similar properties and the demand for such property in that area.
  • Principle of Substitution – Rent levels are based on a comparison of the rental rates of surrounding properties and the possibility that a tenant could select an alternative or substitute property.

“Equitable Principles of Fairness”

Ultimately, the goal in eminent domain proceedings is to arrive at a fair market value for the condemned property. There are few hard-and-fast rules, and the U.S. Supreme Court has stated that satisfying the Fifth Amendment’s requirement for just compensation “derives just as much content from the basic equitable principles of fairness . . . as it does from technical concepts of property law.” United States v. Fuller, 409 U.S. 488, 490 (1973). As a result, if you are questioning a valuation of your condemned property, it is in your best interest to seek experienced legal representation.

Owners’ Counsel of America | Experienced Eminent Domain Attorneys Nationwide

For more information about seeking just compensation in eminent domain proceedings, contact an eminent domain attorney with Owners’ Counsel of America for a free initial consultation. Call our office at (877) 367-6963 or locate an attorney in your state today.

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November 9th, 2015 — In News & Events

New Jersey Beachfront Residents Represented by OCA Attorney Sue to Prevent Use of Eminent Domain

In October, a group of New Jersey beachfront homeowners brought suit against the New Jersey Department of Environmental Protection (DEP) seeking to prevent the agency’s use of eminent domain. Represented by eminent domain lawyer and OCA New Jersey representative Anthony DellaPelle, the property owners argue that the DEP’s plan to construct protective sand dunes on their properties would prevent them from taking their own precautions to avoid damage to their homes and land.

The homeowners argue that DEP’s plans include only the construction of the sand dunes with no plans for long-term maintenance on structures the agency has indicated will likely last only 5 years, yet the agency seeks perpetual easements across their properties.  Further, the owners assert that given the perpetual nature of the easements, they would no longer have the ability to build their own storm protection systems instead becoming reliant on the government to protect their private property.

Rather than take this risk, nine property owners have asked the Ocean County Superior Court to enter a declaratory judgment prohibiting the agency from obtaining easements on their land. As their attorney Mr. DellaPelle told NBC New York, “It’s not hard to envision a battle over funding when the next storms wash away the sand . . . [the] homeowners do not want to be dependent on the government to protect their homes.”

As one homeowner noted in a recent Asbury Park Press article, the beachfront property owners inthis community have coordinated and paid for the construction and maintenance of a rock wall, which they credit with minimizing the damage their community suffered as a result of superstorm Sandy.  These property owners feel confident in the current storm protection that they have chosen for their properties, but are less confident in the strengthen, longevity and reliability of the DEP’s sand dune project.

NJ Homeowners Allege Unconstitutional and Unlawful Exercise of Eminent Domain

In fighting against the sand dune project, the homeowners argue that the DEP has not been properly authorized to exercise the power of eminent domain. In New Jersey, state agencies can only condemn private property pursuant to legislative authority. However, in this case, DEP is attempting to acquire easements across not only the plaintiffs’ properties – but the land of thousands of property owners along the coast – pursuant to an Executive Order signed by Governor Chris Christie in 2013.

Further, landowners allege that DEP has sought to obtain these “perpetual and assignable easement[s] and right[s] of way” without payment of any compensation to the affected property owners. Additionally, landowners contend that the agency seeks to turn a portion of the plaintiffs’ private oceanfront property into a “public beach.”

An Easement is a Form of “Taking” Requiring Valid Public Use and Payment of Just Compensation

As we have previously discussed, an easement is a form of “taking” by the government even though it does not involve the transfer of ownership of the affected land. An easement can significantly impair the value and use of a piece of property, and private property owners are protected against such impairment by the Fifth Amendment. In the case of these New Jersey homeowners, DEP’s plan to construct sand dunes and designate a portion of their land as a public beach area appears likely to have a significant impact on the value (and even the potential long-term safety) of their properties.

These homeowners are fighting to protect their property rights against the unlawful exercise of eminent domain as well as from an unreliable, short-term government-sponsored storm protection plan that would prevent them from taking steps to protect their private property. We will keep you updated as the case progresses.

Ritter, et al. v. New Jersey Dept. of Environmental Protection, Filed Complaint w Docket Number_ 10 26 15

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November 2nd, 2015 — In Articles

Easements and Restrictive Covenants: When the Government Takes Without Taking

When most people think about eminent domain and the condemnation of private property, they imagine the government acquiring a citizen’s private property and converting it to a public use. While this is often the case, it is not the only way that the government can acquire private property.

Governments may claim “non-possessory” rights in private land. Such rights allow the government to either (i) use, or (ii) place restrictions on a landowner’s use of private property.

Understanding Easements and Restrictive Covenants

Two of the most common types of non-possessory property interests are easements and restrictive covenants.

Easements

When the government (or, in some cases, a private entity) needs access to private property, it may exercise its power of eminent domain to do so.   .  In broad strokes, an easement is the legal right of one party to use or access someone else’s property, whether that be over, under or through the land. Easements are limited to certain, specified purposes. So, if the government or a private entity wishes to use eminent domain to obtain an easement on your property, it must spell out how, where, and why it intends to use your land.

TransCanada’s efforts to clear the way for the Keystone XL Pipeline provide a good example.  Over the past several years, TransCanada’s attorneys have been seeking to obtain easements on private property in Nebraska and across the West so that TransCanada can lay its pipeline if and when it receives government approval. Other examples of easements obtained by government agencies through the eminent domain process include easements for:

  • Utilities – such as water, sewer or electrical transmission lines;
  • Sidewalks, driveways or other access above or below ground; or
  • For construction purposes – a temporary use of the private property during the construction of a public project.

Restrictive Covenants

While an easement provides a right to use someone else’s land, a restrictive covenant places limits on how an owner can use his or her own property. A recent case out of New York provides an interesting example.

Blue Island Development, LLC v. Town of Hempstead, is an inverse condemnation case that arose out of land use restrictions placed upon a proposed condominium development on Long Island. Blue Island Development acquired a piece of waterfront land improved with an old oil storage facility.  Blue Island intended to remediate the contamination and construct condominiums.  The developer petitioned for a zoning change so that it could convert the property’s use into condos. The Town of Hempstead granted the change, but conditioned its grant upon the developer agreeing to sell (rather than lease) all of the individual units. This is an example of a restrictive covenant.

Other examples of restrictive covenants include:

  • A prohibition on building on private property;
  • A restriction on constructing buildings above a certain height; or
  • Limiting the purposes for which land can be used.

Challenging Easements and Restrictive Covenants

Like condemnations that involve taking ownership of private property, landowners have the ability to challenge the government’s exercise of eminent domain to acquire easements and actions to establish restrictive covenants or control land use.

For example, in the case discussed above, Blue Island sought a modification of the covenant which the Town subsequently denied.  Blue Island filed an action for administrative relief and declaratory judgement alleging the denial of a modification to the covenant effected an unconstitutional taking of private property.  In its complaint Blue Island argued that the restrictive covenant was improper because:

  • It did not advance a legitimate government interest; and
  • It denied Blue Island an economically viable use of its land.

If you are facing an eminent domain action seeking to acquire easement rights or your use of your property has been frustrated by land use  restrictions or a restrictive covenant, an experienced attorney will be able to help you fight to protect your constitutional rights. To speak with an eminent domain attorney, call (877) 367-6963 or request a consultation online today.

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October 28th, 2015 — In Articles

The Keystone XL Pipeline Isn’t the Only Pipeline Concerning Property Owners

We have talked a lot recently about the ongoing debate and eminent domain issues involving TransCanada’s proposed Keystone XL Pipeline across the western United States. But, this is by no means the only pipeline activity going on in the country. In fact, up and down the East Coast, property owners – many of whom are represented by our eminent domain lawyers – are battling to protect their land against a number of different pipeline projects.

OCA Lawyers Represent Property Owners in PA Mariner East Pipeline Project Litigation

Sunoco is hard at work on a pipeline project that will connect the Marcellus Shale of southwestern Pennsylvania to a processing plant outside of Philadelphia. In order to build its pipeline, Sunoco needs to obtain easements from some 2,500 property owners across the state. Eminent domain lawyers with Owners’ Counsel of America (OCA) have been representing Pennsylvania residents in eminent domain proceedings to prevent Sunoco from acquiring easements across their land for the purpose of constructing the Mariner East Pipeline.

Sunoco has been seeking to compel property owners to quickly sign leases – in some cases within a week. This type of activity is dangerous for property owners, as big corporations often seek to take advantage of individuals without giving them time to speak with attorneys who can help them understand their rights. If your property is in the proposed path of Sunoco’s Mariner East pipeline, we encourage you to contact an OCA attorney in Pennsylvania right away.

OCA Lawyers Represent Property Owners Against Dominion Resources in NC and VA

Rapidly becoming one of the East Coast’s most controversial pipeline projects, the Atlantic Coast Pipeline would connect natural gas resources in West Virginia to sites in Virginia and North Carolina. While the Dominion Resources project has the support of the governors in all three states and business lobbyists in North Carolina, property owners remain rightfully concerned about the impact to their property.

Eminent domain attorneys affiliated with OCA currently represent landowners in eminent domain proceedings against Dominion Resources, which seeks to obtain easements to construct the pipeline on their properties. Lawyers defending property owners in Augusta County, VA recently appeared in court to object to Dominion’s request to enter their private property to perform surveys.

Attorneys for property owners argued that landowners have a right to know when a pipeline representative is coming onto their land. Such notice is important because property owners may keep livestock or other animals, may be planting, harvesting or operating equipment and simply have a right to privacy on their property.

Is your property in the path of the Atlantic Coast Pipeline? Find an OCA attorney in your state.

OCA Lawyers Represent Property Owners Fighting the Sabal Trail Pipeline in GA and FL

Eminent domain lawyers with OCA are also in the process of helping property owners in Georgia and Florida protect their property rights in connection with the proposed Sabal Trail Pipeline. As with the other pipelines, Sabal Trail has been taking aggressive action to try to convince property owners to give up their legal rights. In some cases, they have gone so far as to attempt to perform surveys on private property without following the procedures required by the law of eminent domain.

Residents Fighting Planned Kinder Morgan Pipeline in Massachusetts

Finally, a fourth pipeline project is stirring debate and leading property owners to take legal against the federal government in Massachusetts. The Federal Energy Regulatory Commission (FERC) has authorized the new Kinder Morgan pipeline and permitting is in progress, but property owners facing eminent domain are fighting back to protect their land.

Is Your Property in the Path of a Pipeline? Contact an Eminent Domain Lawyer at OCA

If you are facing condemnation in connection with a planned pipeline, OCA’s experienced eminent domain lawyers are here to help. Our attorneys represent property owners across the country and are dedicated to protecting landowners’ constitutional rights. To speak with an OCA attorney about your case, please contact us today.

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October 22nd, 2015 — In Articles

Non-Possessory Takings: North Carolina Supreme Court to Consider Inverse Condemnation in Future Highway Development Case

In a case that has garnered national attention, the North Carolina Supreme Court has agreed to review a court of appeals decision holding that a state statute effected a taking – and thereby implicated the property owners’ Constitutional rights. It is an interesting case — one that could have significant implications for property owners across the country.

State Objects to Protection of Property Owners’ Rights

The case is Kirby v. North Carolina Department of Transportation, No. OA14-184 (Feb. 17, 2015), and it arose out of a use of the North Carolina Map Act. Enacted in 1987, the Map Act allows the North Carolina Department of Transportation (DOT) to freeze development of private property that it has designated for possible future highway development. Effectively, the law allows the DOT to draw up future highway corridors, designate private property for future highway use and prevent the owner from developing the land if the improvements would get in the way of a tentatively-planned highway.

In Kirby, several landowners challenged the Map Act as a violation of their Constitutional rights. Specifically, they argued that the Act allowed the DOT to effect a non-possessory taking of their property rights without payment of just compensation.

After losing at trial, the landowners filed an appeal. On appeal, North Carolina’s intermediate court held that the DOT could reserve or “land bank” private property under the Map Act, but also said that it must pay the property owners just compensation. The court reversed the trial court ruling and remanded the case for further proceedings to determine the amount of compensation owed to each owner. This was an important win for the property owners.

NCDOT subsequently asked the North Carolina Supreme Court to review the appellate decision, which it has agreed to do. As a result, it remains to be seen whether the landowners will be compensated for the restrictions placed on their property. At Owners’ Counsel of America, we will be monitoring the case closely for further developments.

More on Inverse Condemnation and Eminent Domain

The government does not have to physically take your property nor go through the eminent domain process in order to invoke the Constitutional protections provided by the Fifth Amendment. As argued by the landowners in the Kirby case, various forms of regulatory “non-possessory” or inverse takings can invoke these protections as well.

Under the law of eminent domain, the government can only claim rights in private property for certain, well-defined public purposes. Then, when it acquires such rights in privately-owned land, it is required to compensate the owner for the “taking” of the property. When the government fails to satisfy these requirements, the remedy for affected property owners is to file suit to protect their constitutional rights and demand just compensation or remedies available under the law. The Fifth and Fourteenth Amendments protects against not only the dispossession of private land, but also against government -imposed infringements and restrictions on private property.

Read more about how property owners can protect their Constitutional rights.

The Inverse Condemnation Attorneys at Owners’ Counsel of America Can Help

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October 22nd, 2015 — In News & Events

OCA & NFIB Amici Brief: Cities Can’t Force Homebuilders To Provide More Than Fair Share Of Affordable Housing

Last week, OCA and the National Federation of Independent Business (NFIB) Small Business Legal Center filed an amici curiae brief with the United States Supreme Court urging the protection of private property rights from overreaching government regulation. The brief requests the Court agree to review the California Supreme Court’s decision in California Building Industry Association v. San Jose, No. 15-330 (September 16, 2015).

Background of the Case

This case stems from the City of San Jose’s Ordinance No. 28689, which requires developers of residential projects with more than 20 units to choose either to designate 15% of those units for sale at below-market prices to buyers with qualifying income levels, or construct affordable housing at a different location, give the City land or cash.

  • California Building Industry Association (CBIA) challenged the validity of the ordinance ordinance and sought injunctive relief.
  • A trial court struck down the ordinance concluding that the ordinance is an “exaction,” and that the City had not first undertaken the required studies to show that the affordable housing crisis in Silicon Valley is caused by the developers of new homes.
  • The California Court of Appeal, reversed the trial court and upheld the ordinance, concluding that because the ordinance did not require a developer to give up land or money, it is a zoning restriction, not an exaction and, therefore, subject to the “rational basis” test not to the heightened scrutiny applied by the trial court.
  • The California Supreme Court agreed, holding that the purpose of the requirement is to promote affordable housing, not to mitigate the impacts of market priced housing, which is an exercise of San Jose’s police rather than a development exaction.

OCA & NFIB Amici Brief Urges the Protection of Private Property Rights

The amici brief filed by the NFIB and OCA asks the Supreme Court to review this important property rights case and argues:

  • San Jose is not simply regulating private property, but has effectively pressed it into public service to alleviate the city’s critical need for affordable housing.
  • Although the ordinance does not demand the outright dedication of land, it does require the owner to set aside a certain number of units at below-market value, essentially requiring those units to be dedicated to public use.
  • The city’s inclusionary zoning ordinance should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine established by Nollan, Dolan, and Koontz, which hold that before the government can condition permission to build on the developer providing benefits, the government must show that what the developer proposes contributes to the problem, and that the condition will mitigate that impact and is proportional.
  • This case provides an opportunity for the Court to clarify that legislatively imposed exactions are subject to review under unconstitutional conditions doctrine.

“While the city’s requirement does not demand land, it clouds the owner’s title for up to 55 years with an encumbrance that prohibits its sale at market value,” stated OCA Hawaii Member, Robert Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and a contributor to the NFIB-OCA brief. “In reality, it is as if the City were demanding land, and this raises the same anti-extortion concerns that fuel the requirements set forth in the Supreme Court’s decisions in Nollan, Dolan, and Koontz.”

“An ‘out-and-out plan of extortion’ forced upon citizens is just as repugnant when imposed by the legislature as when it is carried out by a government agency,” said Thomas.

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