OCA Blog

November 23rd, 2016 — In Articles

Owners’ Counsel of America Files Brief in Inverse Condemnation Case before U.S. Supreme Court

The Owners’ Counsel of America (OCA) has joined together with other property rights advocates to file an amici curiae brief with the United States Supreme Court in an inverse condemnation case concerning the rails-to-trails conversion of an elevated rail line in New York to a public parkway.  

OCA joined the National Federation of Independent Businesses Small Business Legal Center, Cato Institute, National Association of Reversionary Property Owners, Property Rights Foundation of America, Citizen Advocacy Center and law professors Paula Franzese and James Ely, in filing the brief.  OCA Hawaii Member Robert Thomas and Cato’s Ilya Shapiro worked together as principal authors of the brief.

In the brief, the amici parties argue that words have meaning, especially when used in a document granting an interest in real property.  Further, amici urge the Supreme Court to grant review of Romanoff v. United States, 815 F.3d 809 (Fed. Cir. 2016) and reverse the lower court judgement.

The case involves the conversion of an abandoned elevated rail line to the High Line public park on Manhattan’s West Side. An easement was granted to New York Central Railroad by a previous landowner for the construction of an elevated freight line.  When the railroad abandoned use of the line, the City of New York converted it to a public recreational park.

The Romanoff family purchased the property after the original rail easement was granted.  When the railroad stopped using the line and the City began conversion to the High Line park, the family filed an inverse condemnation action in the Court of Federal Claims to obtain just compensation for the taking of its ownership rights. The Court of Federal Claims determined that the Romanoff family was not entitled to compensation because the railroad transferred its easement rights to the City of New York.  The Romanoff family appealed and a federal appellate court decision concluding that an easement granted to New York Central Railroad in 1932 for “railroad purposes” was broad enough to encompass future recreational use of the elevated railroad upheld the Court of Federal Claims decision.

In Romanoff Equities, Inc. v. United States, No. 15-5034 (Fed. Cir. Mar. 10, 2016), the federal appellate court determined that the words in the original easement “for railroad purposes and for such other purposes as the Railroad Company…may…desire to make” indicate that the easement was a “general” easement which allowed the railroad company to not only use the easement for rail transportation, but for any other use it desired. The Federal Circuit concluded that when the railroad abandoned the use of the line, the original landowner did not regain ownership.  Instead, the Court reasoned that under the “general” easement the railroad could transfer it’s rights in the easement to the City for use as a park.  The family then appealed to the U.S. Supreme Court seeking the Court’s review of the federal circuit’s decisions in this matter.

The amici brief presents four arguments.

  1. Property rights are the basis of a free society and the foundation upon which all civil rights stand;
  2. Under the principle of judicial federalism the federal court should have asked New York’s highest court to decide the scope of the easement under New York law;
  3. The federal courts violated property law principles of certainty and predictability by concluding that the words in the easement for railroad use meant something other than what is written; and
  4. When a court of national jurisdiction considers a novel or unsettled issue of state law, the court should not attempt to guess how the state’s highest court would decide the issue, but rather certify the question to the state’s highest court.

Consult an Inverse Condemnation Lawyer with Owners’ Counsel of America

The eminent domain and inverse condemnation attorneys affiliated with Owners’ Counsel of America (OCA) represent private property owners in eminent domain litigation and property rights matters nationwide. If the government has taken your property rights, an OCA attorney in your state can help defend your legal rights. Contact us for more information online or call (877) 367-6963 for assistance.

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October 5th, 2016 — In Articles

Battle on the Beach: Owners’ Counsel of America Files Amicus Brief in Important Property Rights Case

Recently, the Owners’ Counsel of America filed an amicus brief in a property rights case currently pending in the North Carolina Supreme Court. The case, Nies v. Town of Emerald Isle, No. COA15-169 (N.C. App. Nov. 17, 2015), concerns the ownership and right to use the “dry sand” beach.  OCA joined with Hawaii Law Professor David Callies as amici on the brief.

Who Owns the “Dry Sand” Beach?

The Nies case involves the question or who owns the upland portion of the beach – the “dry sand” beach.  The “dry sand” beach is generally defined as the area between the mean high water mark (where the sand is wet) and the dune or vegetation line.  Emerald Isle claims that all private beachfront land between the dunes and the mean high water mark (MHWM), including property owned by the Nies, is subject to the “public trust.” according to this argument, the Town and public may utilize the “dry sand” area without taking the property or an easement across it using the power of eminent domain or paying just compensation for the taking.

The Nies argue that the deed to their beachfront property lists the seaward boundary to be the mean high water mark (MHWM).  In the Nies view, the “dry sand” beach between the dunes and the MHWM is their private property, which they have the right to use and enjoy and have the right to exclude others from accessing it.

What is the Public Trust Doctrine?

The public trust doctrine is a legal principle that preserves certain natural and cultural resources for public use.   Under the public trust doctrine, these resources are owned by the government and must be protected and maintained for use by the public.  For example, the public trust doctrine holds that the government owns all of the submerged lands under navigable waters.  Case law has held that the public trust doctrine preserves for public use the “wet sand” beach area seaward of the mean high water mark. Under the public trust doctrine, however, the state does not own the “dry sand beach.”

Background of the Case

The property owners filed an inverse condemnation lawsuit in 2011 alleging that the Town of Emerald Isle violated their state and federal constitutional rights by taking their property rights without following eminent domain procedures and paying just compensation for the rights acquired.  The inverse condemnation complaint followed the Town’s enactment of ordinances that established a 20-foot-wide “driving lane” for both public and municipal uses across the dry sandy beach area owned by the Nies family.  The lawsuit argues that these ordinances effectively established an easement across private property without paying just compensation to the owners.

The trial court agreed with the Town finding that the Town was not liable for a regulatory taking when it allowed the public to drive on the dry sand beach.  The Nies family appealed to the North Carolina Court of Appeals.  Again, siding with the Town, the Court of Appeals held that the public has the right to access all dry sand beaches in North Carolina. While oceanfront owners hold title to the dry sand beach, the Court of Appeals concluded that their title does not give landowners the right to deny the public access to the dry sandy beach.  The Nies family appealed to the North Carolina Supreme Court which granted discretionary review.   The Pacific Legal Foundation (PLF) represents the Nies family.

OCA’s Amicus Brief: If the Government Moves the Public Shoreline Onto Private Property, It’s a Taking

OCA urges the NC Supreme Court to reverse the Court of Appeals decision.  OCA’s brief argues the Court of Appeals permitted the Town of Emerald Isle to press into public service the portion of the Nies family’s property above the MHWM as a road and park. OCA believes the Court of Appeals decision conflicts with existing North Carolina law. OCA urges the N.C. Supreme Court to confirm that the public trust doctrine only relates to land below the MHWM and cannot be extended by legislation or by a court to the dry sand beach.  Should the Court of Appeals decision stand, the government can avoid its constitutional obligations to condemn private property for public use and pay just compensation to the affected landowners.

This issue is not limited to North Carolina, but has surfaced around the country in states such as Michigan, Indiana, New Jersey and Florida.  therefore, OCA feels that this issue is not only important to the citizens of North Carolina but to all Americans.

Contact an Inverse Condemnation Attorney with Owners’ Counsel of America

The eminent domain and inverse condemnation attorneys affiliated with Owners’ Counsel of America (OCA) represent private landowners in condemnation proceedings and property rights matters. If the government has impacted your property rights, an OCA attorney in your state can help you protect your legal rights. Contact us for more information online or call (877) 367-6963.

[Proposed] Brief of Amici Curiae Owners’ Counsel of America and Professor David L. Callies, Nies v. Town of… by robert_thomas_5 on Scribd

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July 18th, 2016 — In Articles

While One State Seeks to Limit Powers, Another Seeks to Reinvigorate Use of Eminent Domain

Since the infamous 2005 Supreme Court Kelo decision, many have watched as state and federal legislators across the country consider a variety of laws relating to eminent domain and property rights. Some of these laws have specific purposes – such as the APPROVAL Act that Arkansas’s congressional delegation proposed in 2015 – while others are intended to more broadly restrict or expand the government’s power to condemn private land. Two recently-proposed bills on opposite sides of the country fall into this latter category, albeit with diametrically opposite aims.

Constitutional Amendment Proposed in North Carolina to Limit Use of Eminent Domain

In North Carolina, legislators have proposed a constitutional amendment in the form of House Bill 3 that would prohibit the exercise of eminent domain for anything other than a “public use.” In Kelo v. City of New London, the U.S. Supreme Court ruled that the government could condemn private property and transfer that property to another private party for purposes of “economic development.” Since then lawmakers who support private property rights have been fighting to scale back this significant and controversial expansion of the power of eminent domain.

House Bill 3 is the North Carolina House of Representatives’ fifth attempt to curtail the effects of Kelo v. City of New London. Along with limiting the exercise of eminent domain to condemnations for “public use,” the proposed amendment would also entitle property owners to request that a jury determine the amount of just compensation to be paid for the taking of their private property.

California Bill Would Reauthorize “Redevelopment Agencies” Capable of Exercising Eminent Domain

Prior to California’s budget crisis in 2012, hundreds of state-funded “redevelopment agencies” routinely used the power of eminent domain to condemn private property for purposes of reinvigorating blighted areas throughout the state. The California State Legislature and Governor Jerry Brown dissolved these agencies amid the state’s budget crisis, but Assembly Members Luis Alejo and Eduardo Garcia have now introduced Assembly Bill 2492 in an attempt to revitalize the state’s redevelopment agency program.

Among other goals, Assembly Bill 2492 aims to:

  • Reauthorize the establishment of redevelopment agencies with the power to condemn private property;
  • Redefine what constitutes “blight” for purposes of identifying possible redevelopment projects; and,
  • Support the sale or lease of land acquired through eminent domain for private use.

This is despite the fact that the California Legislative Analyst’s Office found in 2011 that there was, “no reliable evidence that [the redevelopment agency] program improves overall economic development.”

It will be interesting to see whether either of these bills is able to gain traction during the 2016 legislative calendar. We will continue to provide updates for any significant developments.

Contact an Eminent Domain Attorney with Owners’ Counsel of America

Owners’ Counsel of America (OCA) is a network of leading eminent domain attorneys nationwide. If a government agency is attempting to take your private property, an OCA attorney in your state can help you fight to protect your legal rights. For more information or to request an initial consultation, please contact us online or call (877) 367-6963 today.

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July 14th, 2016 — In Articles

North Carolina Supreme Court Holds Map Act Unconstitutional

In an important victory for property owners, the North Carolina Supreme Court recently held that key provisions of the state’s Map Act are unconstitutional. As a result of the Court’s ruling June 10, 2016, affected property owners will be entitled to just compensation for the state’s regulatory taking of their properties. Additionally, landowners throughout the state may seek just compensation in the event that the North Carolina Department of Transportation (NCDOT) prevents them from improving their land in order to reserve property for future roadway development projects.

Read our prior coverage here of Kirby v. North Carolina Department of Transportation, No. 56PA14-2 (N.C. June 10, 2016) (opinion).  Additional commentary from OCA Hawaii Member, Robert Thomas, is available here.

State Authorities Cannot Indefinitely Restrain Use of Private Property Without Payment of Just Compensation

Signed into law in 1987, North Carolina’s Roadway Corridor Official Map Act (referred to as the “Map Act”) authorized the North Carolina Department of Transportation (NCDOT) to designate protected “corridors” in which it reserved the right to build roadways in the future. For property owners’ whose property fell within these corridors, this meant that the NCDOT could prevent them from developing, building upon, or subdividing their property. In the words of the North Carolina Supreme Court, this had the effect of “allow[ing] the state to hinder property rights indefinitely for a project that may never be built.” Slip. op. at 13.

After the NCDOT exercised its powers under the Map Act for purposes of planning the Eastern and Western Loops of the Northern Beltway in Winston-Salem (without compensating the affected property owners), the property owners filed suit alleging violations of their constitutional rights. The trial court sided with the DOT; however, the appellate court ruled that the property owners were entitled to just compensation. The NCDOT then asked the North Carolina Supreme Court to weigh in, and the state’s highest court confirmed the decision of the Court of Appeals.

The Case Will Be Remanded for Calculation of Just Compensation

While the NCDOT argued that its use of the Map Act was a lawful exercise of the state’s police power and not a regulatory taking,  the North Carolina Supreme Court disagreed.  Affirming the decision of the Court of Appeals, the Supreme Court found that the Map Act amounted to an improper “cost-cutting mechanism” that restricted affected property owners’ constitutional rights. “The Map Act’s indefinite restraint on fundamental property rights is squarely outside the scope of the police power.” Slip op. at 13. In other words, while the NCDOT could restrict the landowners’ use of their property, it could not do so without payment of just compensation.

The court held that “[t]he language of the Map Act plainly points to future condemnation of land in the development of corridor highway projects, thus requiring NCDOT to invoke eminent domain.” Slip op. at 12. Therefore, “[b]y recording the corridor maps at issue here, which restricted plaintiffs’ rights to improve, develop, and subdivide their property for an indefinite period of time, NCDOT effectuated a taking of fundamental property rights.” Slip op. at 15.Accordingly, the Supreme Court remanded the case to the trial court for calculation of the value lost as a result of the NCDOT’s inverse condemnation, taking into consideration:

  • The value of the property owners’ lands prior to recording of the protected corridor map;
  • The restrictions on the property owners’ fundamental rights; and,
  • Any effect of the reduced ad valorem taxes resulting from the unconstitutional taking.

Owners’ Counsel of America | Leading Eminent Domain Attorneys Nationwide

If the government is seeking to condemn your property or restrict the use of your land without just compensation, a local eminent domain lawyer with Owners’ Counsel of America may be able to help you protect your constitutional rights. To speak with an eminent domain lawyer in your state, search our national directory or call (877) 367-6963 today.

Kirby v. North Carolina Dep’t of Trans., No. 56PA14-2 (N.C. June 10, 2016) by robert_thomas_5 on Scribd

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June 30th, 2016 — In Articles

Dictionary of Key Terms

Below are general definitions of key terms that are often used in eminent domain and other taking cases. Please note that the precise definition of any of the following terms may differ depending upon the state or jurisdiction applicable to the relevant matter.

Abandonment

The right of a condemning authority to withdraw or dismiss a condemnation action after it has been filed, usually because the condemnor has determined that it does not want to pay the final just compensation award. In many states, condemning authorities have an automatic right to abandon a condemnation action, meaning they do not have to seek the approval of the court to do so. Other states may impose specific retrictions or conditions on the right of abandonment, including even that the condemnor must reimburse the landowner for various out of pocket expenses and attorney fees. Still other states will not allow a condemning entity to abandon a condemnation action under specific circumstances, such as when a statute precludes abandonment, or the landowner can show that it reasonably relied to its detriment on the condemnation case going forward, or the condemnor has taken immediate possession of the landowner's property. To learn more about the concept of abandonment read OCA's Featured Article entitled, "Can The Government Abandon An Eminent Domain Taking?"  

Answer or Responsive Pleading

A written pleading filed by the landowner responding to the Petition or Complaint of the condemning authority in which the landowner answers each allegation by either denying, admitting or admitting in part and denying in part. The Answer generally also identifies the landowner’s legal defenses to the taking.

Benefits

In situations where a public project may bestow benefits on a landowner’s remaining property, the condemning authority may seek to quantify such benefits and then use them to reduce the total amount of just compensation to be paid. In most jurisdictions benefits must be deemed “specific” in nature, rather than “general” in order to reduce just compensation. While benefits are typically used to reduce damages to remaining property, in some jurisdictions benefits may also be used to reduce the compensation paid for the property being taken.

Blight

Blight is a legal term used to determine whether a neighborhood or commercial area qualifies for redevelopment through urban renewal. Often it is used to describe physical conditions of structures and buildings that are deteriorated, dilapidated, or decayed. Unfortunately,  because there is no uniform definition of blight, and because it is often open to subjective interpretation, and finally because statutes characterizing what is and what is not blight differ from state to state— there is significant room for mischief and even abuse in how blight determinations are made. As examples of how subjective and even vague blight determinations can be, here are a list of some of the commonly considered factors that can provide the foundation for a blight finding: (1) defective or inadequate street layouts (2) broken windows (3) cracked sidewalks (4) faulty lot designs (5) title defects (6) lack of parks or open spaces (7) lack of storm drainage or other utility facilities etc. For more information about this subject, read "Can My Property Be Taken for Urban Renewal Purposes and Transferred to a Private Redeveloper Even If It’s Not Blighted?" within the Featured Article section of OCA's website. 

Burden of Proof

A term that defines the duty placed upon a party to prove or disprove by appropriate evidence all disputed facts in a case necessary to prove a claim. In a traditonal eminent domain case most disputed facts relate to the amount of just compensation to be paid for the taking. Depending upon the jurisdiction where the case is tried, the burden of proof on the issue of compensation may be on either the landowner or the condemning authority. Another issue where the burden of proof may be important relates to whether the property is being taken for a proper public use or purpose. In some states, the condemning authority bears the burden of proof on this issue. The standard of proof refers to the amount of evidence the party needs to provide in order for the judge or jury to reach a particular determination. In most eminent domain cases, the burden of persuasion that applies is called “a preponderance of the evidence.”

Business Losses or Business Damages

Compensation claims relating to the negative impact that an eminent domain taking may have on a particular business or business operation. Although most states currently do not allow a landowner to recover business damages or losses as part of the just compensation that must be paid for a taking, a few states do provide for such recovery. To find out more about each state's position on business impact claims talk with an OCA lawyer or view the state laws under Locate an OCA Lawyer.

Commission or Board

Some jurisdictions allow the amount of just compensation to be determined by a body of individuals sometimes called a Commission or a Board. Commissioners are generally appointed by the court. In most jurisdictions, some type of investigation or voir dire process is undertaken to ensure that the Commissioners are independent, impartial and unbiased as it concerns the parties and issues in the case.

Comparable Sales

A valuation methodology generally used by appraisers in determining fair market value that involves considering recent selling prices of properties similar to the subject property in terms of a number of factors, e.g. location, use, size, zoning, geography, etc. The comparable sales approach is sometimes called the market approach. To learn more about comparable sales in an eminent domain case, read "A Landowner's Guide to Understanding the Comparable Sales Approach" under Featured Articles.

Condemnation Clause

A provision in a lease that generally describes the legal rights and obligations of the parties (typically the landlord and tenant) should the leased property (or any portion of the leased property) become the subject of an eminent domain taking or proceeding. There is no form Condemnation Clause that applies in every situation and it is incumbent upon the parties to a lease to fashion a clause that is specific to their unique circumstances and consistent with the eminent domain law and practice within the jurisdiction at issue. For more on Condemnation Clauses and leases read the OCA Featured Article entitled "What's In Your Condemnation Clause? Landlord and Tenant Issues That Often Arise When Leased Interests are Impacted By Eminent Domain Takings. 

Damages or Severance Damages

Damages which may result when only part of an owner's property is condemned. The purpose of damages is to compensate an owner for any loss in value of the remaining property due to the acquisition.  Damages are also sometimes referred to as 'severance' damages or 'damages to the remainder.' In many condemnation cases damages to the remainder can exceed the value of the property being taken. When there are wide disparities between the condemning authority's valuation position and that of the landowner's, oftentimes the disparity is attributed to a difference of opinon on the existence, degree and amount of damages caused by the acquisition. To learn more about the concept of damages, read the Featured Article entitled, "The Payment of Damages As Part of Just Compensation." 

Date of Value

Just compensation is to be determined as of a specific date, which is generally referred to as the “date of value.” The condemnation statues in each jurisdiction will typically address how the “date of value” is to be determined or established.

Defenses

The legal challenges that a landowner may mount against the condemning authority's condemnation action. In an eminent domain case typical landowner 'defenses' include assertions that: the condemning entity lacks the legal authority to condemn the property, the condemnation is not for a proper public use or purpose, there is a lack of necessity for the taking, and/or the condemnor has not negotiated in good faith for the property being taken prior to filing the condemnation action. The ultimate success and viability of these are other defenses that the landowner may raise against the condemnation action depends largely on the specific facts of the case and the law applicable in the jurisdiction where the case is being tried.

Depositions

The taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. In a condemnation case depositions are typically taken of the landowner, the appraisers, and other expert witnesses. For more information about a property owner's deposition, read "The Landowner's Deposition in An Eminent Domain Case" in the Featured Articles section.

Discovery

A pre-trial procedure in a condemnation case in which each party, through the rules of civil procedure, seeks to obtain evidence from the other party by means of depositions or various pleadings, such as interrogatories, requests for production of documents, and requests for admissions.

Easement

A legal interest in property that gives the beneficiary the right to use the property for a specific use or purpose. The scope and nature of the easement is generally defined by its written terms. While the easement holder is entitled to use the property in accordance with the terms of the easement, legal title to the land itself remains with the owner. Easements can be written to be exclusive, non-exclusive, temporary and permanent. Depending upon the type of easement, the location of the easement, and the terms defining its' usuage, easements can either have minimal impacts on the property they encumber or extensive impacts. See the separate definition of a Temporary Easement herein.

Eminent Domain

Eminent domain” (also referred to as “condemnation” or “appropriation” in some states) is the government’s power to take private property subject to payment of just compensation. Federal, state and local government agencies can exercise the power of eminent domain. In certain circumstances, government agencies can grant private companies the authority to exercise eminent domain as well.

Fair Market Value

The price at which the property would sell or change hands on the open market between a willing buyer and a willing seller, neither being under any compulsion or duty to buy or to sell. For more information about this term refer to OCA Featured Article, "What Does Fair Market Value Mean in Determining Just Compensation?"

Fee Interest

A property rights term used to describe the maximum ownership interest in real property that is allowed under the law. The fee interest is also sometimes called the fee simple interest.

Fifth Amendment

The Fifth Amendment to the U.S. Constitution creates a number of rights relevant to both criminal and civil legal proceedings. However, most relevant to takings law is the portion of the amendment which reads: "No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." These words, which are echoed in many state constitutions, provide citizens with certain fundamental rights when it comes to their property and property rights and ensures that private property cannot be taken without due process of law, without a proper public use being met, and without the payment of just compensation.

Good Faith Offer

The valuation offer made to the property owner by the condemning authority as part of the negotiations that occur prior to the filing of the condemnation action. Most state statutes require that the condemnor's offer and the negotiations which follow meet a good faith standard. One way condemnors may seek to show that the offer is made in good faith is by having it supported by an independent appraisal. To learn more about negotiations in an eminent domain case, read "Negotiating With the Condemning Entity From a Position of Strength and Knowledge" in the Featured Article under Landowner Resources.

Highest and Best Use

In most jurisdictions landowners are not limited to a value based on the current use of their property in establishing just compensation. Instead, the property is to be valued considering the most advantageous use, which is often referred to as the “highest and best use” of the property. To meet the standard of “highest and best use” the use must be: (1) physically possible; (2) legally permissible; (3) financially feasible; and (4) maximally productive. See also a "Landowner's Guide to Understanding the Concept of Highest and Best Use" in Featured Articles under Landowner Resources.

Immediate Possession a/k/a Quick Take

While the government typically must pay just compensation before condemning private property, in certain circumstances state laws authorize a “quick-take” procedure which allows agencies to take private property prior to the final determination of just compensation. In most cases, the taking authority must pay its estimate of just compensation to the owner upon acquiring the property. The parties will then follow specific state procedures to determine the final award of compensation. This may include a bench trial before a judge or a hearing before impartial commissioners who will determine the amount of compensation. Or, in some jurisdictions, a jury will be empaneled to hear evidence and determine the amount of compensation due to the owner.

Instructions or Jury Instructions

Statements of the law that are given by the court to a jury at the conclusion of the valuation trial, but before closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations. Most states have adopted specific instructions that are to be given in eminent domain cases.

Inverse Condemnation

Government agencies must follow certain procedures in order to exercise the power of eminent domain. When they fail to follow these procedures and take private property without payment of just compensation, property owners can seek to enforce their right to just compensation under the Fifth Amendment through an action for “inverse condemnation.” To learn more about the concept of inverse condemnation read OCA's Featured article entitled "Inverse Condemnation-A Short Primer."

Just Compensation

Under the U.S. Constitution and state laws, in order to condemn private property, the government must pay the property owner “just compensation.” However, determining what amount of compensation is “just” isn’t always easy, and property owners will often need to take legal action to enforce their right to just compensation.

Larger Parcel

A determination (usually made by an appraiser) of what constitutes the extent of the owner's property that should be the focus of the appraisal assignment for purposes of determining the value of the property being taken and damages to any remaining property. Assessing what constitutes the "larger parcel" usually involves an analysis of several factors, the most common of which are: unity of ownership, unity of use, and physical contiguity. The "larger" parcel test can sometimes create wide discrepancies in valuation conclusions if the appraisers disagree on what the "larger parcel" should be.

Lis Pendens

A notice filed by the condemning authority with the governmental office charged with housing deeds and other property documents. The recorded lis pendens notifies all interested parties that the owner's property is in the process of being acquired for a public use so that anyone dealing with the property is aware of the pending action. Generally, the filing of the lis pendens is one of the first indicia that the condemnor seeks to  exercise control and authority over the landowner's property. When the eminent domain proceeding is completed, a condemning authority will usually file a release of the lis pendens.

Motion in Limine

A motion filed by a party in a condemnation case which asks the court for an order or ruling limiting or preventing certain evidence from being presented by the other side at trial. The purpose of the motion is to prevent the interjection of matters which are irrelevant, inadmissible or prejudicial.

Necessity Determination

A determination made as to whether there is a 'need' or 'necessity' to take the property which is the subject of the condemnation action. The extent to which courts and judges will allow an inquiry into the 'necessity' for the taking varies from state to state. In some states a landowner may challenge the condemnor's necessity finding; other states may allow such an inquiry, but only if bad faith or fraud can be proven; still other states may not allow any inquiry into the necessity for taking the property.

Owner's Testimony

In most jurisdictions, the property owner in a condemnation case is entitled to provide an opinion of value of his or her property. Whether an owner should give such an opinion is an important topic of discussion between the owner and the owner's eminent domain cousel. To understand more about this issue read "Owner Valuation Testimony in an Eminent Domain Case," under Featured Articles under Landowner Resources.

Petition or Complaint

A written pleading filed by the condemning authority to initiate the filing of the condemnation action against the landowner. The Petition or Complaint generally includes the legal basis and authority for filing the case, as well as other relevant facts and details about the parties, the property, the project necessitating the taking, and the nature and scope of the taking itself.

Police Power

The capacity of the various states to regulate certain matters and behaviors in order to enforce order for the betterment of the health, safety, and general welfare of the state's inhabitants. With respect to property rights, sometimes "police power" actions and regulations can go too far, in which event they may constitute a taking under the Fifth Amendment to the U.S. Constituion for which just compensation must be paid.

Post-Judgment Interest

In most jurisdictions, just compensation for the property being taken by eminent domain includes the payment of  "post-judgment interest" by the condemning authority. This interest is applied to the final just compensation award from the date it is rendered or entered as a judgment against the condemning authority and the date of actual payment. The percentage of interest that a landowner may be entitled to as post-judgment interest may differ from state to state. See also "Pre-Judgment Interest."

Pre-Condemnation Damages

In most instances a condemnor will not be held liable for any damages a propery owner may experience under the threat of condemnation or during the pre-planning stage that may be associated with a public project and the consideration of which properties to acquire for its construction. However, in cases where the threat of condemnation has lingered over property for an extended period of time (sometimes called a condemnation "cloud") causing significant uncertainty and damages, a property owner may be entitled to bring a cause of action for "pre-condemnation" damages or inverse condemnation. Such cases are heavily based on the facts and consultation with an experienced eminent domain attorney is recommended.

Pre-Judgment Interest

In most jurisdictions, just compensation for the property being taken by eminent domain includes the payment of  "pre-judgment interest" by the condemning authority. This interest is generally applied to the difference between what was offered or made available to the landowner by the condemnor prior to the commencement of the case and the actual value of the property, as determined at trial. The percentage of interest that a landowner may be entitled to as pre-judgment interest may differ from state to state. See also "Post-Judgment Interest."

Project Influence Rule

A rule or standard to be applied in a condemnation case which refers to a positive or negative change in the market value of the property being condemned as a consequence of the public project for which all or a part of the property is being taken.

Public Use

The government can only condemn private property and authorize the exercise of eminent domain for a “public purpose” or “public use.” Traditionally, this has meant for purposes such as widening roads, utility projects, building schools and other government buildings, and conservation. However, over the past decade, the definition of what constitutes a “public use” has widened substantially, to include, in some cases, private redevelopment projects and increased tax revenues. To learn more about the "public use" clause and how it is interpreted in an eminent domain case read the article  "Public Use and Public Purpose" within the Featured Article section of Landowner Resources.

Reasonable Probability

An evidentiary standard that is generally applied in determining the “highest and best use” of property when not all relevant factors exist as of the date of value. For instance, if the property is not zoned consistent with its claimed highest and best use, but there is a reasonable probability that it would be rezoned for that use, that highest and best use may be admissible. Similarly, if the property has not received all necessary permits for a particular use, but there is a reasonable probability that the permits would be issued, the permitted use may be admissible to establish value.

Regulatory Taking

Physically taking private property is not the only way that the government can deprive property owners of their rights. When a government agency enacts a zoning ordinance or other regulation that diminishes the economic value of a piece of property, this is known as a “regulatory taking.” Like physical takings, regulatory takings require payment of just compensation.

Remainder or Residue

That part of the landowner’s property which remains with the landowner after the property being taken by the condemnor. To qualify as a remainder parcel, generally there needs to be a unity of ownership, use, and physical contiguity between the remainder and the property being taken. Jurisdictions differ on the factual basis for determining whether these three unity factors exist.

Temporary Easement

An easement taking by a condemning authority that allows usuage of the landowner's property for a defined period of time, at the end of which the easement terminates and full usuage returns to the landowner. Like other easement interests, the nature, scope and duration of a temporary easement is defined by its' written terms. Depending upon the language and terms used, as well as the location of a temporary easement, it can either have minimal impacts on property or extensive impacts. As a result, it is important that any temporary easement being requested by a condemning authority be evaluated properly so that the compensation for its use can be appropriately determined. Based on the potential impacts of a temporary easement,  it is not uncommon for the landowner or the landowner's attorney to seek to negotiate the terms of the easement with the condemning authority. Temporary easements are generally, but not always, used to aid in the construction of the condemnor's project, in which event they are sometimes called Temporary Construction Easements.

Uneconomic Remnant

Any portion of the owner's property remaining after a partial acquisition which is of little to no value due to its size, shape or condition. In some jurisdictions uneconomic remnants are required to be taken by the condemning authority on the basis that they constitute a total taking of the owner's property.

Additional Information on Eminent domain

Our website is full of resources for individuals and businesses threatened with the loss of their private property rights. For more information on the law of eminent domain and inverse condemnation, you can read:

Speak With an Eminent Domain Lawyer at Owners’ Counsel of America

Owners’ Counsel of America (OCA) is a network of leading eminent domain lawyers throughout the United States. If the government is attempting to take your property, we encourage you to contact an OCA lawyer in your state for a free consultation. Locate your OCA lawyer online or call us at (877) 367-6963 to connect with an eminent domain lawyer today.

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June 7th, 2016 — In Articles

California Court Rules that Obstructing a Private View Does Not Amount to Inverse Condemnation

A recent case out of the California Court of Appeal illustrates two important aspects of the law of inverse condemnation in The Golden State. Inverse condemnation involves the government appropriating private property rights without adhering to the Constitutional and legal requirements for the exercise of eminent domain (including payment of just compensation). You can read more about the differences between eminent domain (also referred to as “condemnation”) and inverse condemnation here.

Boxer v. City of Beverly Hills

The case of Boxer v. City of Beverly Hills arose out of the City’s decision to plant a stand of coastal redwood trees in a public park. According to the official record, the City had promised to keep the trees trimmed, but it allegedly failed to do so. When the trees grew tall enough to block a group of homeowners’ views of the Beverly Hills, the Hollywood Hills, downtown Los Angeles, and other area landmarks, the homeowners sued the City for inverse condemnation.

The trial court denied the homeowners’ claims, and the Court of Appeal confirmed the denial, finding that the obstruction of the homeowners’ views did not constitute a “taking” for purposes of inverse condemnation. However, both courts referenced prior cases noting that obstruction of view may factor into the calculation of just compensation when an unlawful taking has occurred.

Obstruction of View Does Not Constitute a “Taking”

California law recognizes three types of takings that can give rise to a claim for just compensation. These are: (i) physical invasion of private property in a tangible manner; (ii) physical damage to private property without physical invasion; and (iii) an intangible intrusion that burdens private property in a way that is “direct, substantial, and peculiar to the property itself.”

In the case of the coastal redwood trees planted by the City of Beverly Hills, the California Court of Appeal ruled that none of these three tests were satisfied. The trees neither physically invaded the homeowners’ properties nor caused physical damage to their properties, so the only question was whether the obstruction of homeowners’ views constituted a sufficient “intangible intrusion.”

Noting that the consequences of an intangible intrusion must be, “‘not far removed’ from a direct physical intrusion,” in order to warrant a claim for inverse condemnation, the Court of Appeal ruled that the diminution in the value of the homeowners’ property did not, itself, constitute a compensable taking.

But, View Obstruction May Factor Into Just Compensation

While these homeowners lost their case, it is important to note that the obstruction of view can play a role in inverse condemnation claims under appropriate circumstances. Specifically, the California Court of Appeal noted that while diminution in value (due to a view obstruction) is not enough to support a claim for inverse condemnation on its own, when a property owner has a legitimate takings claim, the loss of a view can be “an element of the measure of just compensation.”

Contact Owners’ Counsel of America to Speak with an Inverse Condemnation Attorney in Your State

Owners’ Counsel of America (OCA) is a nationwide network of leading inverse condemnation attorneys who help private property owners fight to protect their rights. If the government is interfering with your property rights and you would like to speak with an attorney, call us at (877) 367-6963 or contact an OCA attorney in your state today.

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May 25th, 2016 — In Articles

Owners’ Counsel of America Files Amici Brief with The Cato Institute in SCOTUS Property Rights Case

On January 15, 2016, the Supreme Court of the United States announced that it will hear the regulatory takings case of Murr v. Wisconsin, No. 15-214, an appeal out of the Wisconsin Court of Appeals. Wisconsin’s intermediate court ruled that a property owner’s separate but adjacent parcels should be considered as a single property for purposes of determining if an uncompensated taking has occurred, despite the fact that doing so substantially deprived the owner of the value of one of the independent parcels. Owners’ Counsel of America (OCA) and The Cato Institute (Cato) are asking the Supreme Court to reach a different conclusion.  

OCA and Cato Seek to Establish Bright-Line Rule to Protect Property Owners’ Rights

Murr v. Wisconsin arose out of the Murr family’s attempt to obtain a variance and necessary government permissions in order to sell one of their lots, which was vacant, and to make upgrades to an existing cabin located on the neighboring parcel. St. Croix County denied the variance request, citing a local ordinance that prohibited individual development or sale of adjacent lots owned by the same party, except under certain limited circumstances. The ordinance had been passed after the Murrs acquired the parcels in question.

The Murr family subsequently sued the State of Wisconsin and St. Croix County, arguing that the denial of their request amounted to a regulatory taking without just compensation. Specifically, they argued that the prohibition on selling the vacant lot independently deprived them of “all, or practically all” use of the lot.

The trial court disagreed – finding that the vacant lot retained some economic value – and the Wisconsin Court of Appeals affirmed in Murr v. State of Wisconsin, No. 2013AP2828 (Dec. 23, 2014). Critical to the Court of Appeals’ decision, however, was its choice to treat the Murrs’ two separate lots as a single “parcel as a whole.” As a result, considering the retained value of the lots “as a whole,” any loss of value with respect to the vacant lot (which was now only half of the “parcel”) was not enough to require payment of just compensation.

OCA and Cato’s Brief Argues Against Combining Separate Properties to Create a “Parcel as a Whole”

In the amici curiae brief, OCA and Cato ask the Supreme Court to establish a bright-line rule against combining separate properties owned by a single party into one “parcel as a whole.” Establishing such a rule would prevent decisions like the Wisconsin Court of Appeals’ decision in Murr v. Wisconsin, and would clarify the regulatory takings test that the Supreme Court originally established in a case in 1978.

It was in this 1978 case, Penn Central Trans. Co. v. New York City, that the Supreme Court held that the factors for establishing a regulatory taking must be applied to the “parcel as a whole.” However, nothing in the Penn opinion dictates application of this principle in the manner in which it was applied in Murr v. Wisconsin. The Wisconsin Court of Appeals’ decision unnecessarily and improperly impairs the rights of private property owners, and OCA and Cato’s brief argues for a different result. (For more about the Murr case visit here and here.)

Contact OCA to Speak with a Property Rights Attorney in Your State

If you would like more information about the Murr case, or would like to speak with an attorney about protecting your private property rights, feel free to contact Owners’ Counsel of America. We are a network of the country’s leading property rights attorneys, committed to preserving private property rights nationwide. To get in touch, call us toll-free at (877) 367-6963 or send us a message online today.

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May 10th, 2016 — In Articles

Department of Energy Moves Forward With First-Of-Its-Kind Exercise of Authority While Bill to Protect Property Owners Remains Pending

Last year, Representative Steve Womack (R-AR) and Senator John Boozman (R-AR) proposed matching versions of the Assuring Private Property Rights Over Vast Access to Land Act (the “APPROVAL Act”) in the House and Senate. The APPROVAL Act would limit the U.S. Department of Energy’s authority under Section 1222 of the Energy Policy Act of 2005 by requiring approval from a state’s governor and public service commission for any Section 1222 energy transmission project before the federal government may use the power of eminent domain to take private property.

While the APPROVAL Act would have impact nationwide, Representative Womack and Senator Boozman proposed the legislation in direct response to the Department of Energy’s announcement of a plan to partner with a private company, Clean Line Energy, to route a new interstate transmission line through Arkansas. The Arkansas Public Utility Commission had previously denied Clean Line Energy’s request for approval for the line, finding that the project did not serve the best interests of the State.

As a result, the Department of Energy’s attempt to use Section 1222, in the words of Representative Womack, “potentially usurp[s] the state’s role, ignoring the lack of necessity for transmission in the region, and setting a dangerous precedent for the future of federal authority.”

Department of Energy Moves Forward with the Plains & Eastern Clean Line Project

While the APPROVAL Act remains pending in Congress, the Department of Energy is moving forward with the Clean Line Energy partnership. On March 25, 2016, it announced that it would use its authority under Section 1222 to undertake the “Plains & Eastern Clean Line Project” and construct a new transmission line that will stretch from Oklahoma to Tennessee, through Arkansas. This is the first ever exercise of the Department of Energy’s authority under Section 1222.

Arkansas Delegation to Challenge the Department of Energy’s Exercise of Authority Under Section 1222

With the Plains & Eastern Clean Line Project expected rely upon the federal government’s power of eminent domain, members of the Arkansas Congressional delegation are continuing to push back against the Department of Energy’s plan. In a joint statement released on March 25, they stated, “We now will begin the process of careful review over [the Department of Energy’s] decision . . .. Section 1222 of the Energy Policy Act of 2005 establishes specific conditions that must be met before this authority is used, and we expect the Department to release all details of their review so that our staff and Congressional investigators will be able to continue the process of oversight.”

The statement continued, “It is our firm belief that the [Department of Energy] has overstepped its bounds, and reversing this decision through the passage of the APPROVAL Act remains a top priority.”

Is Your Property in the Path of the Plains & Eastern Clean Line Project? An Eminent Domain Attorney With Owners’ Counsel of America Can Help

If you have received a condemnation notice related to the Plains & Eastern Clean Line Project, an eminent domain attorney with Owners’ Counsel of America (OCA) can help you fight to protect your private property. To schedule a consultation, call us at (877) 367-6963 or locate an OCA attorney in your state today.

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April 25th, 2016 — In Articles

Two Judges Approve Use of Eminent Domain for New Jersey Dunes

As we have previously discussed, beachfront property owners in New Jersey are currently in a battle with the state’s Department of Environmental Protection over the department’s efforts to condemn portions of their property for a beach-widening and dune-building project along the New Jersey shore. While the Department of Environmental Protection asserts that the project is necessary to protect the shore from future storms similar to 2012’s Hurricane Sandy, the property owners counter that there are better alternatives available.

They also assert – among other arguments – that the Department of Environmental Protection has refused to offer just compensation for its exercise of eminent domain.

Courts Provide Limited Authorization for Exercise of Eminent Domain

In a setback for some of the property owners, on March 28, 2016, a Superior Court judge in Ocean County ruled that the Department of Environmental Protection has the authority to acquire easements necessary to the project through the power of eminent domain. According to the judge’s ruling, the Department of Environmental Protection, “is authorized under the broad delegation of authority to protect the fragile coastal system to take property for public beach purposes and for shore protection purposes.”

Another Superior Court judge issued a similar ruling in a related case on April 11, 2016.

However, the rulings do not represent a complete loss for the property owners. The rulings only affect two of the numerous cases pending with regard to the proposed project, and the March 28 ruling did not affect plaintiffs in Bay Head and Mantoloking who had argued that a rock wall extended after Hurricane Sandy in 2013 provides greater protection than the proposed new dunes. In addition, attorneys representing the property owners affected by the March 28 decision have said that they are considering an appeal.

While Some Residents Granted Easements for No Compensation or a Nominal Fee, Others are Fighting for Their Rights

Governor Chris Christie began pushing for the project in the wake of Hurricane Sandy, seeking to build protective dunes along New Jersey’s entire 127-mile shoreline. Around that time, many residents granted easements for the project while accepting little or no compensation for the loss of their property rights.

But, according to news reports, a total of 165 residents have refused to give up their rights. These residents are seeking to enforce their right to just compensation, and have disputed the Department of Environmental Protection’s argument that their compensation should be limited due to nature of the project. Specifically, the Department is seeking to rely on a Supreme Court decision which held that the need for a storm protection barrier is an important factor in determining just compensation.

The property owners and their attorneys disagree with the Department of Environmental Protection’s interpretation of that case, and are continuing to fight against what they argue is the department’s unjust attempt to exercise its power of eminent domain. As noted above, this issue is just one of many involved in the ongoing litigation.

Owners’ Counsel of America | Eminent Domain Attorneys for Property Owners Nationwide

Owners’ Counsel of America (OCA) is a network of leading eminent domain attorneys nationwide. If the government is attempting to condemn your property, we encourage you to contact us to schedule a consultation. Call (877) 367-6963 or contact us online to speak with an eminent domain attorney in your state today.

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April 18th, 2016 — In Articles

Property Owners Entitled to Just Compensation for Intentional Flooding of Their Land

In some inverse condemnation cases (in which the government takes private property without properly exercising its power of eminent domain), the taking involves some sort of constructive use, such as the building of a road, sidewalk, utility infrastructure or park. These uses are most often intended to be permanent – and whether the taking involves a transfer of ownership or establishment of an easement or right-of-way, the private landowner loses some or all of his or her property rights for good.

But, what happens when the government comes onto private property, temporarily floods it, and then leaves? Does this constitute a taking requiring payment of just compensation? The U.S. Supreme Court thought so 2012, and a California appellate court recently agreed.

Temporary Intentional Flooding Constitutes a Taking

The 2012 case, Arkansas Game & Fish Commission v. U.S. (in which Owners’ Counsel of America filed an amicus curiae brief in support of the property owner), involved the federal government’s repeated flooding of forest land owned by the Arkansas Game and Fish Commission. The lower court had ruled that the flooding did not constitute a taking based exclusively the fact that it was temporary in nature. The Arkansas Game and Fish Commission appealed, and the Supreme Court overturned the lower court’s decision.

Writing for the unanimous Court, Justice Ruth Bader Ginsberg stated:

Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence . . . of a compensable taking.

Other factors the Supreme Court considered relevant to the determination of whether a landowner is entitled to just compensation for intentional flooding were:

  • The degree to which the flooding is foreseeable or intended by the government;
  • The character of the land;
  • The landowner’s “reasonable investment-backed expectations” regarding use of the land; and,
  • The severity of the interference with the landowner’s use caused by the flooding.

In the California case, Pacific Shores Property Owners Ass’n v. Dep’t of Fish and Wildlife, No. C070301 decided Jan. 20, 2016, the specific issue involved was the Department of Fish and Wildlife’s decision to reduce protections afforded to flood-prone private property – therefore resulting in increased flooding. The Department of Fish and Wildlife argued that it’s policy to provide a reduced level of flood protection wasn’t a taking, and that it would have had to cause more flooding than would naturally occur without protection in order to be liable for just compensation. The court disagreed concluding that the Department was strictly liable for its intentional flooding of private property.

In holding that the Department’s actions constituted an inverse condemnation, the court likened the case to prior cases in which intentionally diverting water onto private property had been held to constitute a taking. As in these cases and the Supreme Court case discussed above, even though the flooding was temporary, it was still a taking under the Fifth Amendment.  As a result, the affected property owners were entitled to the payment of just compensation.

Has the Government Flooded Your Property? Contact Owners’ Counsel of America

Owners’ Counsel of America (OCA) is a nationwide network of the country’s leading eminent domain and property rights lawyers. If the government has flooded your land, an inverse condemnation attorney with OCA can help you assess and enforce your legal rights. For more information about OCA, or to speak with an attorney in your state, call (877) 367-6963 or contact us online today.

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