General Articles

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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April 11th, 2016 — In Articles

The Government is on My Property. What are My Rights?

As a United States citizen, the U.S. Constitution, federal laws and the Constitution and laws of your state protect you against government intrusion upon your private property.  While the Fifth Amendment to the U.S. Constitution establishes that government authorities may use the power of eminent domain to take private property, the Fifth Amendment limits the power of eminent domain by requiring that the taking of private property be for a public purpose and that just compensation is paid to the property owner.  Additionally, condemning agencies must follow specific procedures or steps when exercising the power of eminent domain.  While these procedures vary from state to state, there are some basic steps which we discussed in a previous post here (discussing the differences between eminent domain and inverse condemnation).

What if the government simply takes your property? While this may sound far-fetched, if it has happened to you, you know all too well that government agencies do not always play by the rules. In this situation, private property owners can defend their rights through a type of legal action known as “inverse condemnation.”

Inverse Condemnation: How to Protect Your Property Rights

What Constitutes a Taking?

A “taking” of private property occurs when a government agency acquires or appropriates private property for a public use or purpose.  However, the physical seizure of your property does not have to occur to constitute a violation of your Constitutional rights.  Far lesser actions can wrongfully impair your property rights.  From temporarily flooding private property to enacting a zoning ordinance that restricts the use of private land (referred to as a “regulatory taking”), there are numerous ways that government authorities can “take” private property.

Inverse condemnation is not limited to the permanent physical taking of property.  Rather, it can include a temporary taking or occupation of private property, such as flooding, and also includes government regulation which burdens your property in such a way that you can not derive any economical use out of it.  When government regulation significantly burdens private property the inverse condemnation may be referred to as a “regulatory taking.”  Most importantly, in an inverse condemnation or regulatory taking scenario the government has failed to pay just compensation for the private property rights that have been taken.

The Inverse Condemnation Process

When government acquires property without following eminent domain procedures, the affected property owner has the right to bring an inverse condemnation lawsuit against the government entity that has taken his or her property.  When the government skips the steps of the eminent domain process, property owners are often left with no choice but to take legal action against the government.

Each state may follow different procedures and may have differing statutes of limitations – the legal deadline for filing a suit – for inverse condemnation actions. Because your property rights are at stake, we recommend consulting with an experienced inverse condemnation attorney before filing an inverse condemnation or regulatory takings claim.

Taking Action to Protect Your Property

In a typical inverse condemnation case, the property owner seeks to recover just compensation based on the government’s possession or use of their property. In some states, property owners can recover their attorneys’ fees and other expenses as well. In cases involving regulatory takings, property owners may seek money damages, development or zoning permissions or simply may seek to have the offending regulations invalidated.

Inverse condemnation and regulatory takings cases can be quite complicated, particularly because the responsibility falls upon you, the affected landowner, to prove that a taking has occurred (and fighting the government is not easy).  The suit filed by the owner is “inverse” because it is brought by the property owner, not by the government agency having eminent domain power.  This is why the property owner carries the burden of proof that property rights were acquired without the payment of compensation.  (In a direct condemnation action in which the government follows eminent domain procedures, the burden of proof falls upon the condemnor to demonstrate that the acquisition is necessary and that the project has a true public purpose.)

Inverse condemnation cases, however, can be won.  Koontz v. St. Johns River Water Management District is an example of an inverse condemnation victory won by the property owners.  More about the Koontz case here and here.  (Disclosure: OCA filed an amicus brief with the U.S. Supreme Court in support of Koontz.)

Contact the Inverse Condemnation Attorneys at Owners’ Counsel of America

If you believe that the government has violated your Fifth Amendment rights, we encourage you to contact an inverse condemnation lawyer with Owners’ Counsel for more information about protecting your legal rights. Owners’ Counsel of America is a nationwide network of leading attorneys practicing in the areas of inverse condemnation and eminent domain.

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March 28th, 2016 — In Articles

Understanding the Tax Consequences of Condemnation

Tax Day

If your property was taken by eminent domain, you might owe taxes on the just compensation received.












When a government agency or other entity with the power of eminent domain acquires or condemns private property, the private owner is entitled to “just compensation” for the value of the property taken. This compensation – or at least the majority of it – is essentially paid as the purchase price for the condemned property. Eminent domain involves the transfer of real estate title in exchange for the payment of compensation which the Internal Revenue Code (the “Code”) generally treats as an ordinary taxable sale of property.

This means, as you might expect, that the Internal Revenue Service (IRS) considers the just compensation received by a property owner as a “gain” for which taxes should be paid.  While the proceeds from condemned property are generally subject to taxation, the Code contains an important nonrecognition provision in Section 1033 which allows for certain exceptions to taxation for property taken by eminent domain.

Section 1033: Involuntary Conversions – Nonrecognition of Gains from the Transfer of Condemned Property

As a general rule, when a private property owner voluntarily sells a piece of real estate, he or she has the opportunity to reinvest the proceeds from the sale into like property and avoid paying income tax on the gains from the sale. This rule for voluntary sales exists under Section 1031 of the Code, and is why you generally do not have to pay income tax when you sell your house and use the proceeds to buy a new home.

Section 1033 contains a similar (though not identical) rule for condemned property. Under Section 1033, property owners are eligible for nonrecognition of gains for tax purposes if:

  • Their property is condemned, or there is a “threat of imminence” of condemnation;
  • They replace the condemned property within a specified time period (typically two to three years); and,
  • The replacement property is “eligible property” (similar to the like-kind provision in Section 1031) under Section 1033.

Forms of Compensation Not Eligible for Nonrecognition under Section 1033

While it is important for property owners facing condemnation to be familiar with the exceptions established in Section 1033, they need to understand the limitations as well. Although Section 1033 provides for nonrecognition of certain gains from the forced sale of property in eminent domain, it does not apply to all compensation received pursuant to a condemnation. Some of the forms of compensation that may not be eligible for nonrecognition under Section 1033 include:

  • Interest, including detention damages, delay damages and payments for delay in compensation
  • Lost business profits that would be treated as ordinary income
  • Compensation for destruction of property (under applicable circumstances)
  • Relocation costs and other expenses

In many cases, property owners will receive a lump sum condemnation award, which can make it difficult to allocate the compensation received into different tax buckets. As a result, before when accepting an award of just compensation or a condemnation settlement, it is important to discuss the tax ramifications with an experienced tax advisor or attorney.

Condemnation of private property can sometimes lead to income tax consequences, however, the exceptions for involuntary conversions in Section 1033 of the Code can benefit property owners who are forced to sell their property under threat of eminent domain or through condemnation proceedings.  Losing property in this way can be stressful and confusing.  Likewise, the provisions of Section 1033 can be confusing and complex.  If you are facing condemnation or are navigating eminent domain proceedings, it is crucial that you take action to qualify under the requirements of 1033 and any other specific tax code sections that may apply to your situation.  Consider consulting with a professional tax advisor or an experienced eminent domain attorney to ensure that you understand the tax implications involved in an involuntary conversion of your property due to eminent domain.

Owners’ Counsel of America | Leading Eminent Domain Attorneys Nationwide

Owners’ Counsel of America (OCA) is a network of the nation’s leading eminent domain attorneys who represent private property owners in matters involving eminent domain, inverse condemnation, regulatory takings and property rights claims. If the government is trying to take your property, contact us to speak with an eminent domain lawyer in your state today.

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March 22nd, 2016 — In Articles

Eminent Domain vs. Inverse Condemnation: What’s the Difference?

Owners’ Counsel of America member-attorneys are dedicated to assisting private property owners defend their property rights when those rights are threatened by government intrusion or overreach. We realize that many of terms we discuss here and the concepts involved in eminent domain law are complex and can be confusing.  To shed some light on this “dark corner of the law” we have answered some of the frequently asked questions landowners may have relating to eminent domain and the condemnation process here and here.  In this article, we discuss the differences between eminent domain and inverse condemnation.

Eminent Domain vs. Inverse Condemnation

Eminent Domain

There are two types of government acquisition or “taking” of private property.  One form of property acquisition includes the government’s exercise of its eminent domain power to force the sale of private property for a public project or use.  Eminent Domain – also referred to as “condemnation” – is the power of local, state or federal government agencies to take private property for public use provided the owner is paid just compensation. Sometimes, private corporations such as oil and gas companies, railroads or redevelopment authorities may be granted eminent domain power to construct projects providing a benefit to the public.

The use of eminent domain power to take property is referred to by many terms and varies from state to state as well as internationally.  The acquisition may be referred to as a “condemnation” or “direct condemnation,” “expropriation,” “appropriation” or simply a “direct taking.”  In a direct condemnation or direct taking scenario, the government agency or other entity using the power of eminent domain follows certain procedures to acquire the property, establish the amount of just compensation due for the property taken and provide payment of that compensation to the owner.

The Eminent Domain Process

The eminent domain process and the procedures condemnors must follow differ from state to state.  Further, the federal government and federal agencies may follow a process that is different from that which agencies within your state may follow.  It is important, therefore, to consult with a skilled eminent domain attorney experienced in the state or federal jurisdiction in which your condemnation case will be litigated.

There are some basic steps, which may be similar across the country, such as:

  • The government or agency having the power of eminent domain identifies a public project or use which may require the the acquisition of private property
  • The government, agency or company (also known as “condemnor”) notifies the potentially affected property owners that their property is needed for this purpose
  • The condemnor may make an offer to purchase, request a dedication of private property or may try to negotiate a price for the sale of the property
  • If negotiations are not successful, the condemnor will file suit to acquire the property using the power of eminent domain in exchange for just compensation
  • Depending upon the state-specific procedures, an independent commission, a sitting judge or a civil jury will determines the amount of just compensation due to the owner for the loss of the property and possibly for damages, if any, to remaining property.  In some states, the loss of business good will or profits may also be a component of just compensation and some states also provide for the recovery of attorneys fees, appraisal fees, and/or defense costs.  (We have written about the financial compensation available to property owners in eminent domain here and about attorneys fees.)

Inverse Condemnation

The second type of taking is referred to as inverse condemnation.  A taking of property by inverse condemnation occurs when the government acquires or appropriates private property without following eminent domain procedures and without paying just compensation.  An inverse condemnation taking may or may not be a physical acquisition of private property.  If land has been acquired by the government or other condemning authority without following the proper procedures, the landowner has the right to file an inverse condemnation claim against the government to recover just compensation for the property taken.

Inverse condemnation is not limited to the permanent physical taking of property.  Rather, it can include a temporary taking or occupation of private property, such as flooding, and also includes government regulation which burdens your property in such a way that you can not derive any economical use out of it.  When government regulation significantly burdens private property the inverse condemnation may be referred to as a “regulatory taking.”  Most importantly, in an inverse condemnation or regulatory taking scenario the government has failed to pay just compensation for the private property rights that have been taken.

The Inverse Condemnation Process

When government acquires property without following the eminent domain procedure, the affected property owner has the right to bring an inverse condemnation lawsuit against the government entity that has taken his or her property.  The suit filed by the owner is “inverse” rather than “direct” because it is brought by the property owner, not by the government agency or other entity having eminent domain power.  Therefore, the property owner carries the burden of proof that property rights were acquired without the payment of compensation.  This differs from a direct condemnation following eminent domain procedures which places the burden of proof upon the condemnor to show that the acquisition is necessary and that the project has a true public purpose.

As in the eminent domain process discussed above, each state may follow different procedures and may have differing statute of limitations for inverse condemnation. Because your property rights are at stake, we recommend consulting with an experienced inverse condemnation attorney before proceeding with an inverse condemnation or regulatory takings claim.

Owners’ Counsel of America: Skilled Eminent Domain and Inverse Condemnation Lawyers

If you are a property owner facing eminent domain or if you believe that you may have a potential inverse condemnation claim, learn more about how to protect your rights by contacting a lawyer with Owners’ Counsel of America.

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March 8th, 2016 — In Articles

State and Federal Legislators Considering Changes to Eminent Domain Laws

Recently, state and federal lawmakers from across the country have introduced a number of legislative changes in the areas of private property rights and eminent domain. In this article, we highlight some of the latest (potential) legislative developments.

Arkansas Congressional Delegation Proposes Federal APPROVAL Act

Last year, Senator Boozman and Congressman Womack from Arkansas proposed the Assuring Private Property Rights Over Vast Areas to Land (APPROVAL) Act, which is designed to, “restore states’ rights to approve or reject an electric transmission project prior to the federal government exercising its power to take private property.” More specifically, the APPROVAL Act would require the U.S. Department of Energy to obtain state-level approval (and, under applicable circumstances, tribal government approval) prior to approving the use of eminent domain for transmission projects nationwide. At last check, the APPROVAL Act remains under consideration in the Senate.

Pennsylvania Considering Increased Compensation for Condemnees

As we have previously discussed, eminent domain laws in many states provide property owners the opportunity to recover more than just the Constitutional guarantee of “just compensation” when the government condemns their property. For example, in Pennsylvania (as in other states), property owners are entitled to reimbursement for their relocation expenses. This is in addition to attorneys’ fees, appraisal fees, and other costs that are reimbursable under certain circumstances.

Such reimbursements are often subject to caps. In Pennsylvania, the caps on relocation expenses are currently set at $12,000 for businesses and farm operations; $27,000 for homeowners; and $6,300 for residential tenants. A proposed law under review in both the House and Senate would increase these caps to $25,000; $31,000; and $7,200, respectively.

Georgia House Passes Bill (Temporarily) Halting Use of Eminent Domain for Pipeline Construction

On February 29, a bill establishing a moratorium on the use of eminent domain to acquire private property for the construction of petroleum pipelines passed Georgia’s House with a vote of 165-2.  If it becomes law, HB 1036 would prohibit the use of eminent domain to force private landowners to grant easements for the purpose of constructing new petroleum pipelines through July 2017.  Believed to be aimed at stalling or blocking the proposed $1 billion Palmetto Pipeline, which is the first petroleum artery to be constructed in Georgia in nearly two decades, the bill establishes a 13- member commission of elected officials and experts  to study Georgia’s procedures for awarding corporations eminent-domain power.

Under current law, pipeline companies such as Palmetto Pipeline operator Kinder Morgan must apply with the Georgia Department of Transportation for authorization to use eminent domain.  Citing a failure to prove “public convenience and necessity,” GDOT denied the company’s application in May 2015. Kinder Morgan appealed the denial and on March 1, 2016 a Fulton County Superior Court Judge upheld the denial.

South Carolina to Consider “A Reform of Eminent Domain” in 2016

In an opinion piece published in a local newspaper called Bluffton Today, South Carolina State Representative Bill Herbkersman said that residents can expect the state’s lawmakers to consider “a reform of eminent domain” in 2016. According to State Representative Herbkersman:

“Unfortunately, [the] private condemnation process has been, from time to time, used in what many of us think are questionable circumstances.

“Our reforms will tighten up the language so as to make absolutely certain that the condemned property is for public use, and that it will never be diverted to private control.”

Herbkersman’s comments regarding “private condemnation” may reference the U.S. Supreme Court’s controversial decision in the case of Kelo v. City of New London. It was in Kelo that the Court first held that government authorities can us eminent domain to transfer property from one private owner to another if doing so will serve the public purpose of “economic development.” An issue that has faced near-constant scrutiny since the Court’s decision almost 11 years ago, this has recently become a hot-button issue in the 2016 Presidential race as well.

Or, Herbkersman may have been referencing S. 868 which passed the South Carolina Senate on March  3. Similar to their neighbors to the South, South Carolina legislators introduced S. 868 to block Kinder Morgan’s use of eminent domain to acquire easements across private property for the proposed Palmetto Pipeline.

We will continue keep you updated as these and other laws work their way through the state and federal legislatures.

Contact an Eminent Domain Lawyer at Owners’ Counsel of America

If you would like more information about federal eminent domain laws or the laws in your state, contact an attorney with Owners’ Counsel of America today. You can also call us directly at (877) 367-6963, or send us an email to learn more.

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March 3rd, 2016 — In Articles

I Received a Condemnation Notice. What are My Rights?

If you received a condemnation notice or a notice that your property may be needed for a public project, it means that a federal, state or local government authority is seeking to acquire your property (or an interest in your property) using the power of eminent domain.

Eminent domain is the power granted to the government and governmental agencies to seize private property for public use. This power is not absolute and as a property owner, you have a number of important legal rights. However, protecting these rights can be a challenge. For private owners who suddenly find that their properties sit in the way of public (and, in some cases, private) projects, the threat of condemnation can be a very real concern. As a result, if you have received a notice of condemnation, it is in your best interest to speak with an experienced eminent domain lawyer as soon as possible.

Your Rights After Receiving a Condemnation Notice

As the owner of a private property, your rights are protected by state law, federal law and the U.S. Constitution – specifically, the Fifth Amendment.

Private property owners’ rights include the following:

  • Public purpose – The Fifth Amendment requires that the government only condemn private property for a public purpose. While “public purpose” is not clearly defined, there are some guidelines outlining reasons the government can – and can’t – take private property.
  • Due process – Under the Fifth and Fourteenth Amendments, all citizens are entitled to due process of law, before the government can take their property. With respect to eminent domain, landowners are entitled to notice of and to be heard before the government can deprive them of their property. The notice must provide reasonable information that would provide affected landowners and other interested parties adequate time and opportunity to respond.
  • Just compensation – The Fifth Amendment also requires the condemning authority to pay just compensation for property taken using the power of eminent domain. The requirement that landowners receive just compensation for property acquired by eminent domain provides the owner a financial payment in exchange for the loss of his or her property to the use of the public.  When a portion of a property is taken, the owner may be entitled to compensation for the value of the part taken as well as any damages to remaining property.
  • Expense reimbursements – State laws across the country provide opportunities for landowners to recover some or all of their attorneys’ fees, relocation costs, appraisal or survey fees and other expenses incurred as a result of the government’s exercise of eminent domain.
  • Dispute – Perhaps most importantly, if the government attempts to condemn your property, you have the right to consult with an attorney and to fight back. An experienced eminent domain lawyer will be able to help you identify all possible grounds to challenge the government’s exercise of eminent domain, will assist you in obtaining just compensation for your property and will help you navigate the complex procedures and deadlines of eminent domain litigation.

Unfortunately, government agencies can exceed their authority in attempting to condemn private property. For owners who do nothing, this can result in serious violations of their Constitutional rights and potentially costly losses to their property. For owners who fight back, the process can be a struggle, but the outcome is generally worth the investment.

Contact an Eminent Domain Lawyer with Owners’ Counsel of America

From preventing an unconstitutional taking to ensuring the payment of just compensation, there are numerous issues to consider when you receive a condemnation notice. To learn more, read our FAQs or contact an attorney with Owners’ Counsel of America in your state today.

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