October 25th, 2021 — In Articles
New ABA Article: Michael Berger, “Whither Regulatory Takings”
OCA Honorary Member Michael Berger has authored a new article entitled, “Whither Regulatory Takings.” In it he compares the law that looks to the Fifth Amendment as the guardian against overly stringent government regulation to the everyday legal outcome of most property owners making a regulatory taking claim: recovery denied. As Mr. Berger writes, “For the uninitiated it has become very difficult for a property owner to prevail in a regulatory taking case. Indeed, two commentators likened such litigation to a “high-stakes game of craps.” This statement explains Justice Thomas’s comment that if the Court really does not believe in regulatory takings, it “should say so.” To read Mr. Berger’s outstanding article in its entirety click here.
October 28th, 2020 — In Articles
Mike Rikon and Jon Houghton Discuss A Recent New York Case Addressing the Practice of Advance Payments and Sandbagging
In an article published in the New York Law Journal Owners’ Counsel of America Members Mike Rikon and Jon Houghon discuss the recent decision in Staten Island Land Corp and how it seeks to address the problem of advance payments and sandbagging in the State of New York. As they explain in the article, under New York’s quick take statute, the government can take title to property which it seeks to condemn by making an advance payment based on the government’s ‘highest approved appraisal’ before the final determination of just compensation has been made, which payment can subsequently be used by the owner to purchase replacement property. However, what happens if the condemning authority tenders a second (and much lower) appraisal at trial (a tactic called sandbagging) that results in a final just compensation determination well below the advanced payment? In such situations, the landowner can be forced to repay the deficiency amount, something that is difficult to do if the owner has already reinvested the money in replacement property. Read here on how the Staten Island case seeks to remedy this obvious injustice.
October 14th, 2020 — In Articles
Nailing Down Knick and Governmental Takings in Louisiana by OCA Member Randall A. Smith
Owners’ Counsel of America member Randall Smith writes in a new article published in the October/November issue of the Louisiana Bar Journal about the unique interplay between Louisiana’s expropriation laws and the U.S. Supreme Court’s recent landmark decision in the Knick case. The article focuses on what Knick may mean for Covid-19 claims against local governments in the wake of mass shutdowns and other regulatory measures that are currently impacting businesses and property interests, both in Louisiana and nationwide. The article also highlights a case currently before the 5th Circuit involving enforcement of a $28,764,685 just compensation and interest judgment against Bernard Port that Randall Smith obtained for his client Violet Dock Port, as a result of the taking of its’ port facility in 2010. To read the Bar Journal article in full click here.
August 15th, 2020 — In Articles
Your Private Property Rights in Minnesota Amidst COVID-19 by Mark Savin, Howard Roston and Ben Tozer
The COVID-19 pandemic has caused substantial uncertainty for businesses. As of March 24, 2020, the President has declared an emergency under the Stafford Act and the Minnesota Governor has declared a peacetime emergency. Given the situation, the government may order businesses to close or take goods, equipment and space that may be needed for the government’s response. While the government has the power to take such extraordinary actions, that may not eliminate the Constitutional protections for private property owners. The Fifth Amendment to the United States Constitution provides that, “private property [shall not] be taken for public use without just compensation.” The Minnesota Constitution similarly provides that, “private property shall not be taken for public use without just compensation therefore, first paid or secured.”
If the government issues an order that shuts down businesses in order to “flatten the curve,” it is unlikely that such action will provide a successful takings claim against the government. On the other hand, taking private property or acquiring space —such as condemning a motel to use in isolating coronavirus patients as recently happened in the State of Washington or acquiring privately-owned medical equipment needed to respond to the emergency —may present successful claims for just compensation under the U.S. and Minnesota Constitutions. A practical approach is required as we expect courts to recognize that the government must respond promptly to this emergency. While the COVID-19 pandemic presents unique questions, we have experience protecting private property rights during emergency situations.
To read article in full click here.
August 15th, 2020 — In Articles
Natural Gas Pipeline Easements: An Overview of the Takings Jurisprudence by Andrew Brigham
Although the eminent domain power is an attribute of the sovereign, there are instances in which a private licensee is delegated the power for the acquisition of easements necessary to establish a lineal corridor. For the purposes of this article, our examination of the jurisprudence associated with the acquisition of lineal corridor rights takes place in the “laboratory” of the federal district courts in Florida. For it is there that a new interstate pipeline project, known as the Sabal Trail Natural Gas Pipeline, resulted in the filing of approximately 263 condemnation cases for a lineal corridor of some 247 miles needed to construct a thirty-six-inch-diameter pipeline capable of transmitting up to one billion cubic feet of natural gas a day.
In review of these cases, some of which are yet pending appeals before the Eleventh Circuit, we are able to observe how private property rights are regarded when it is a private company wielding the eminent domain power to acquire easement rights, which make servient the estates of owners to a use of property that purportedly diminishes the value of their remainder property due to fear or stigma. Likewise, because some of these cases actually proceeded to jury trial on the measure of compensation, a rare look is afforded as to exactly how, as gatekeeper, a trial judge must often balance between admitting evidence that furthers the owner’s entitlement to a measure of compensation, which includes loss or severance damages resulting from fear or stigma, but preclude evidence where under Federal Rule of Evidence 403 the probative value is outweighed by unfair prejudice or jury confusion. Within this context, evidence as to the existence of fear or stigma is relevant and admissible, while evidence as to the reasonableness of fear or stigma is irrelevant and inadmissible. Topics discussed in this article include:
(a) the progression of federal courts in condemnation cases under the Natural Gas Act to grant “immediate possession” in lieu of a delegated “quick-take” power;
(b) the federal courts’ application of state law instead of federal law as the choice of law that controls the measure of compensation;
(c) the federal courts’ decision to use jury trials instead of commission trials to determine the measure of compensation;
(d) the condemnor’s use of Daubert challenges to exclude or limit testimony and evidence that is related to severance damages resulting from fear or stigma;
(e) the condemnor’s objection to the testimony of the property owner as to the quantification of severance damages resulting from fear or stigma;
(f) whether jury trials result in a “fair” and “just” determination of the measure of compensation.
To read this article in full please refer to the Brigham Kanner Property Rights Journal, [Vol. 8:121]
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.
July 23rd, 2019 — In Articles
Knick v. Township of Scott, Pennsylvania: Federal Courthouse Doors Now Open to Taking Claimants by OCA Member James Masterman
On June 21, 2019, the U.S. Supreme Court, in a 5-4 majority opinion written by Chief Justice John Roberts “restor[ed] takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.”Knick v. Township of Scott, 139 S. Ct. 2162 (2019). The Fifth Amendment’s “nor shall private property be taken without just compensation” is the clause Chief Justice Roberts references and is the bedrock protection afforded private property in the Bill of Rights, ensuring that full, fair, and just compensation is paid when a taking occurs. If rights guaranteed landowners in the Bill of Rights had so eroded that restorative action, and not merely interpretative, was necessary, there ought to be little dispute at the highest court. To the four justices who dissented, however, the Knick decision “smashes a hundred-plus years of legal rulings to smithereens.” Knick, 139 S. Ct. at 2183 (Kagan, J., dissenting). What could possibly have caused such a hot dispute in the fairly tepid world of eminent domain? Read on.
July 18th, 2019 — In Articles
The Nasty, Brutish, and Short Life of Agins v. City of Tiburon
By OCA Members Gideon Kanner and Michael Berger
IF THE DUKE OF YORK’S MEN THOUGHT they were being made to perform useless, repetitive tasks to no worthwhile end, they were in about the same condition as the American lawyers who were practicing tak- ings law in the 1970s and 1980s. During that period of time, hordes of lawyers representing the competing sides in regulatory taking cases were sent, figuratively, charging up the hill to the Supreme Court (which, to make the analogy complete, sits on top of Capitol Hill in Washington, D.C.) in an effort to do intellectual battle over the issue of remedies in regulatory taking cases. That issue was whether such takings call for constitutionally mandated “just compensation” as specified in the Fifth Amendment, or only for judicial invalidation of the constitutionally overreaching regulation. Read on.