February 20th, 2021 — In News & Events
Destruction of Home During Police Enforcement Operations Not a Compensable Taking
Many people would assume that if a police department or swat team completely destroyed someone’s private residence during an operation to apprehend a fleeing suspect, particularly when that suspect did not have an ownership interest in the residence, the government would be responsible and liable for the destruction under the Fifth Amendment “takings clause” of the United States Constitution. But in two recent court decisions, one from Colorado decided in 2019 entitled Lech vs. Johnson and one from South Dakota decided on February 10, 2021 entitled Hamen v. Hamlin County, Hamen v. Hamlin County, the courts reached a different conclusion. In each, the court ruled that such exercises of the government’s police power cannot constitute a taking of private property warranting the payment to just compensation. In Colorado, the fleeing suspect (who was being chased for shoplifting at a Walmart store) had no ownership or other interest in the home he took refuge in; in other words the owners were innocent bystanders. In the South Dakota case, the police were under the impression that the suspect in a series of crimes was holed up in his parent’s mobile home. He was not and the police did not assert that his parents had any involvement in his criminal activities. For more background about each of these cases, read Robert Thomas’ Inverse Condemnation Blog discussion by clicking here.
February 17th, 2021 — In News & Events
Condemnor’s Quick Take Powers Require That Owner Receive Preliminary Compensation Offer
A recent Supreme Court decision out of Massachusetts illustrates the need to make sure a property owner receives what is deemed preliminary compensation (referred to in the opinion as the “pro tanto payment”) when a condemnor exercises its quick take powers to acquire and take control of an owner’s property before the condemnation action is completed and before the final determination of just compensation has been made. Indeed, the court rules that the preliminary payment must be extended to the property owner even if the owner is contesting the eminent domain case and seeking to have the property returned. In Abuzahra v. City of Cambridge, the City refused to make the preliminary offer of compensation (an amount of $3.7 million) available to the owner Abuzahra because of questions regarding the state of title. However, even after the title issue had been resolved and Abuzahra established he was the rightful recipient of the funds, the City continued to refuse to pay him because he was challenging the taking. To read the opinion in full click here. To understand the concept of “quick take” also called “immediate possession,” refer to OCA’s Dictionary of Key Terms.
February 17th, 2021 — In OCA Blog
Considering the Condemnation of Golf Course Land or Golf Facilities-Not So Fast
OCA’s New York member Michael Rikon writes in his Bulldozers at Your DoorStep Blog about the hazards and risks associated with a condemnor seeking to acquire a golf course or lands associated with a golf facility by eminent domain main. “Not so fast,” Mike advises. Before deciding that such actions are a good idea, the condemnor might wish to critically analyze the concept of highest and best use. To learn more about this concept and the part it plays in assessing a parcel’s development potential and resulting fair market value, read Mike’s article here. You might also wish to check out OCA’s Featured article entitled, “A Landowner’s Guide to Understanding the Concept of Highest and Best Use.”
February 9th, 2021 — In News & Events
New Jersey Eminent Domain Case Involving PennEast Pipeline Heading to U.S. Supreme Court
The U.S. Supreme Court announced on Feb. 3rd that it would hear the appeal on an eminent domain case involving PennEast Pipeline Co.’s efforts to build a 120-mile, 36-in. natural gas pipeline across open space and public lands preserved by the State of New Jersey for recreation, conservation and agriculture purposes. The Federal Energy Regulatory Commission (FERC) approved the project in January 2018. However, the 3rd U.S. Circuit Court of Appeals ruled in 2019 that PennEast could not use federal eminent domain to seize the land. The court held that condemning public lands violates the 11th Amendment which gives sovereign immunity to states, shielding them from private lawsuits.
February 5th, 2021 — In News & Events
Federal Government Drops Several Eminent Domain Claims in South Texas For the Border Wall
The U.S. Attorney’s Office has dropped its legal efforts to immediately take possession of at least three tracts of land in South Texas that had been earmarked for stretches of the border wall, citing President Joe Biden’s plan to pause construction projects. Ryan Patrick, U.S. Attorney for the Southern District of Texas, said in the court filings the executive order Biden signed on his first day in office on Jan. 20 essentially made going forward with the land condemnations moot, at least for now. Efforts to quit other condemnations could be coming soon, court documents indicated. For more information about these actions read here.
February 4th, 2021 — In News & Events
Couple Files Fifth Amendment Lawsuit in Boulder Colorado Over Mineral Moratorium
A couple who own mineral rights within the City of Boulder, Colorado are now suing the city over its oil and gas moratorium on the basis that it violates the Fifth Amendment’s rule against taking private property without just compensation. The couple, John and Valorie Wells, are being represented by the Public Trust Institute. The moratorium originates from an ordinance enacted in June 2013 that prohibits the city manager and staff from accepting or processing any application for oil and gas exploration permits on open space properties. For more information about this case, read this article recently published in Boulder’s Daily Camera.
February 3rd, 2021 — In OCA Blog
Anthony DellaPelle Assumes Leadership Role With Great Swamp Watershed Association
OCA’s New Jersey member and property rights attorney Anthony DellaPelle with the law firm of McKirdy Riskin Olson and Dellapelle out of Morris Township was recently elected as the new Board chairman of the Great Swamp Watershed Association. First formed in 1981 as a grassroots organization the Association has grown to serve over 2,200 members in some 40 municipalities within New Jersey. The principle mission of GSWA is to preserve and protect the water and natural areas under its purview. Five streams in the watershed form the Passaic River, which provides potable water for over a million New Jersey residents. “My main objective while serving as Chair is to have GSWA continue its essential work in protecting the watershed,” DellaPelle stated. “I want to increase awareness of the importance of our goals and efforts not only within the Great Swamp region and headwaters, but also in the downstream areas of the Passaic River as a result of the recent expansion of our mission to extend our geographic reach.”
January 2nd, 2021 — In News & Events
Register Now for the ALI-CLE Eminent Domain and Land Valuation Litigation Conference
Registration is now open for the biggest and best eminent domain and land valuation conference that has taken place annually for nearly 40 years. Given the pandemic it will be held virtually for the first time on January 28th and 29th. For more information about this event and to register click here.
December 31st, 2020 — In News & Events
New Oregon Complaint Alleges Eviction Moratorium Extension Is a Taking
In a complaint filed last week in the U.S. District Court for the District of Oregon against Oregon’s governor (in her official capacity), the City of Portland, and Multnomah County, Plaintiffs assert that “several provisions of law, including state statutes, executive orders, and municipal ordinances” amount to a per se taking of Plaintiffs’ property. More specifically, Plaintiffs alledge that the combination of these measures significantly impairs Plaintiffs’ rental contracts, thereby requiring that just compensation be paid. Visit OCA member Robert Thomas’ Inverse Condemnation Blog for more details about this recent filing and the case itself.
December 18th, 2020 — In News & Events
Hawaii: State Takings Are “Self-Executing” Constitutional Violations (Not Torts Or Breaches Of Contract), Subject To A Six-Year Statute Of Limitations
In DW Aina Lea Dev., LLC v. State of Hawaii Land Use Comm’n, No. SCCQ-19-156 (Dec. 17, 2020), the unanimous Hawaii Supreme Court held that the statute of limitations governing a regulatory takings claim under the Hawaii Constitution’s “takings or damagings” clause is six years. The case started out in a Hawaii state court, and was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim for missing the limitations cut-off. Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question before Hawaii’s highest court was what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. For more about the case read OCA member Robert Thomas’ Inverse Condemnation Blog. To read the opinion itself, click here.