April 16th, 2020 — In News & Events
OCA Files Amicus Brief in Case Involving Destruction of Residence by Local Police
After being chased by police for stealing clothing from a Walmart, a man barricaded himself in a house in Greenwood Village, Colorado. Over a 19 hour period, using explosives and a battering ram attached to an armored personnel carrier, the local police department’s SWAT team intentionally destroyed the landowner’s house to force the fugitive to surrender. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to just compensation under the Fifth Amendment of the United States Constitution for the intentional destruction of their house. The Tenth Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. To read more about the background of the case click here. To review OCA’s Amicus Brief on a cert petition to the United States Supreme Court click here.
April 16th, 2020 — In Uncategorized
PA Supreme Court Rejects Takings Challenge To COVID-19 Shut-Down Orders
In one of the first comprehensive court opinions on an issue of national interest, the Pennsylvania Supreme Court rejected business owners’ challenges to the recent shut down orders issued by Governor Tom Wolf in response to COVID-19 on various legal grounds. Ruling that the orders were supported by a compelling public health rationale and were not a regulatory taking of property because they were temporary in nature, the court upheld them. For a full review and analysis of the opinion, click here.
April 15th, 2020 — In News & Events
Webinar on Safety vs. Freedom: Are There Limits to Lockdowns?
OCA Hawaii member Robert Thomas joined Keli’i Akina, President and CEO of the Grassroot Institute of Hawaii on April 14th for an important Webinar on Safety vs. Freedom in the time of COVID-19. For those who missed the webinar, you can view a list of the important topics covered as well as a recording of the entire webinar by clicking here.
April 7th, 2020 — In News & Events
Can the Government Commandeer My Hotel to Fight COVID-19?
OCA Affiliate member Ivy Cadle of Baker Donelson asks in his recent posting, “With the COVID-19 pandemic in full swing, can the government take private hotel rooms to expand the capacity to care for individuals with or exposed to the virus?”
Governmental entities at every level are taking unprecedented steps to fight the COVID-19 pandemic as they work to slow transmission of the virus and to prevent health care facilities from reaching overcapacity. Given that many health care facilities are nearing capacity already, it is easy to envision a world where governmental entities could appropriate private property to help respond to the crisis until the efforts are able to “flatten the curve.”
The federal government has already taken the formal steps to allow the appropriation of private property. When President Trump declared a national emergency under the Stafford Act on March 13, 2020, he authorized the administrator of the Federal Emergency Management Agency (FEMA) to exercise the right of eminent domain to acquire both physical facilities and supplies. Even though FEMA is required to compensate owners, the Stafford Act also allows for an immediate right of possession. Accordingly, FEMA could immediately appropriate buildings, land, food, medicine, testing supplies and medical equipment, parts, fuel, etc. Read more.
March 20th, 2020 — In News & Events
Private Property Owners May Soon Find Themselves on the Front Lines of Government Efforts to Combat the Coronavirus
On March 13, 2020, President Trump declared a national emergency under the Stafford Act in an effort to combat the spread and transmission of COVID-19 (commonly referred to as the coronavirus). Relevant to property owners across the country, the Stafford Act allows the administrator of the Federal Emergency Management Agency (FEMA) to exercise the right of eminent domain to immediately acquire, not only the physical facilities it needs (like buildings and land), but also supplies, such as medicine, food, equipment, respirators, and other parts and supplies. In short, the Stafford Act gives FEMA broad eminent domain powers to take what is necessary to address this national emergency.
Below are three recent postings by OCA members concerning the potential consequences of such actions on the statutory and constitutional protections afforded property owners who may be subjected to the power of eminent domain under the Stafford Act. While we must all try to protect each other from the spread of COVID-19, it is important that those facing the potential taking of their property and property rights to fight this pandemic are properly counseled and represented by attorneys experienced in eminent domain takings. OCA lawyers are the leading eminent domain lawyers in the country who are dedicated to the defense and protection of private landowners nationwide.
Anthony DellaPelle: “Can The Covid-19 Pandemic Allow the Government to Seize My Property?”
November 18th, 2019 — In News & Events
Eminent Domain and Land Valuation Litigation 2020
American Law Institute Continuing Legal Education (ALI CLE) has announced that Eminent Domain and Land Valuation Litigation 2020 will be held on January 23-25, 2020 in Nashville, TN. The only CLE event for eminent domain practitioners with a national focus and reach, this conference features new topics, customizable content, and valuable networking opportunities, all in the heart of Music City. Many OCA members will be in attendance, both as faculty members and attendees. Don’t miss this opportunity to learn about developing issues in eminent domain, inverse condemnation and regulatory takings. Practice area experts will be coming from across the country to represent the diverse stakeholders in these disputes, including land owners and government agencies and other condemning bodies. Judges, appraisers, consultants, and law professors will round out the prestigious group of over 60 speakers sharing their knowledge and experience with attendees.
September 27th, 2019 — In News & Events
Homeowner Gets $380K After NJ Tried to Take Half His Oceanfront Property for Just $750
A New Jersey homeowner has been awarded $380,000 for the taking of part of his property for a storm protection project after being offered $750 for the same property by the State. In a trial that ended Thursday, Kevin Klingert was awarded the money for the loss of about half his oceanfront property in Brick Township. OCA Member attorney Anthony Della Pelle says about 75 similar cases remain pending in Ocean County from homeowners challenging compensation offered by the state. “They took approximately half the property to build a 22-foot dune, but the property had existing dunes, created by the owner, that were 19 and a half feet high already,” Della Pelle said.
September 23rd, 2019 — In News & Events
OCA Files Amicus Brief in North Carolina Map Act Case
Many will recall the infamous Map Act that was adopted in North Carolina during the 1990’s. As a result the North Carolina Department of Transporation (NCDOT) recorded corridor maps that restricted the use of property in the path of several future road projects similar to negative easements. Although the North Carolina General Assembly repealed the maps in 2016, the North Carolina Supreme Court ruled that these restrictions amounted to takings by inverse condemnation. NCDOT is now initiating actions to physically take some of the properties to build roads and highways. The legal issue now presented is how to value these properties in determining just compensation after they have been impacted by the Map Act for years? OCA’s recently filed Amicus Brief (which you can read here) seeks to assist the North Carolina Supreme Court in addressing this issue to ensure that all impacted landowners receive proper just compensation.
August 27th, 2019 — In Articles
No Severance Damages for You, You Have a Special Benefit by OCA Member Mike Rikon
In his Condemnation and Tax Certiorari column, OCA New York Member Michael Rikon discusses partial acquisitions in condemnation cases and writes: “Within the area of consequential damages, we must explore, not only the loss in value suered by the remaining property, but the possible benefits to that remainder which are the result of the improvement for which the part taken was acquired. To further complicate things, the question arises, do we consider special benefits to the remainder as distinguished from general benefits? Read more here.
August 23rd, 2019 — In News & Events
Nebraska Supreme Court Rules on Transcanada’s XL Pipeline Route by William Blake
The Nebraska Supreme Court has affirmed the decision of the Nebraska Public Service Commission’s (PSC) to approve a route through Nebraska for the XL Pipeline, completing one of the final steps before construction of the controversial project can begin. A copy of the full decision can be read here.
The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska. First announced in 2008, it has remained the focus of controversy and litigation for eleven years. During that time, the project underwent two route changes through Nebraska, after acquisition of a majority of the needed corridor easements had already occurred. Several condemnation actions were dismissed as premature, until a final route was approved.
In 2017 the PSC, an administrative regulatory body with the power to determine whether a major oil pipeline route is in the public interest, approved a route. Transcanada had requested approval of its second proposed route, but that route met with substantial opposition. In November, 2017, the PSC approved a different route, closely paralleling the route of Transcanada’s earlier Keystone pipeline. A number of farmers and ranchers along the approved route, joined by several native American tribes and environmental groups, appealed the PSC’s decision to the Nebraska Supreme Court.
Although the appeal was thought to be placed on the fast track, over a year and a half later, the Nebraska Supreme Court finally entered its unanimous ruling. Rejecting the appellants’ various arguments, the court held that the question of whether a pipeline will be in the public interest of Nebraska is a question peculiarly left to determination by the PSC, and that a route application includes alternative routes. Of interest to condemnation lawyers, the court stated that the case did not relate to condemnation proceedings. Rather, the PSC permit is an antecedent issue that is not part of a condemnation proceeding under the power of eminent domain.
For now, this long-awaited decision appears to remove the Cornhusker State from the middle of the legal battle.
Contributed by OCA Nebraska Member William Blake