October 28th, 2015 — In Articles
The Keystone XL Pipeline Isn’t the Only Pipeline Concerning Property Owners
We have talked a lot recently about the ongoing debate and eminent domain issues involving TransCanada’s proposed Keystone XL Pipeline across the western United States. But, this is by no means the only pipeline activity going on in the country. In fact, up and down the East Coast, property owners – many of whom are represented by our eminent domain lawyers – are battling to protect their land against a number of different pipeline projects.
OCA Lawyers Represent Property Owners in PA Mariner East Pipeline Project Litigation
Sunoco is hard at work on a pipeline project that will connect the Marcellus Shale of southwestern Pennsylvania to a processing plant outside of Philadelphia. In order to build its pipeline, Sunoco needs to obtain easements from some 2,500 property owners across the state. Eminent domain lawyers with Owners’ Counsel of America (OCA) have been representing Pennsylvania residents in eminent domain proceedings to prevent Sunoco from acquiring easements across their land for the purpose of constructing the Mariner East Pipeline.
Sunoco has been seeking to compel property owners to quickly sign leases – in some cases within a week. This type of activity is dangerous for property owners, as big corporations often seek to take advantage of individuals without giving them time to speak with attorneys who can help them understand their rights. If your property is in the proposed path of Sunoco’s Mariner East pipeline, we encourage you to contact an OCA attorney in Pennsylvania right away.
OCA Lawyers Represent Property Owners Against Dominion Resources in NC and VA
Rapidly becoming one of the East Coast’s most controversial pipeline projects, the Atlantic Coast Pipeline would connect natural gas resources in West Virginia to sites in Virginia and North Carolina. While the Dominion Resources project has the support of the governors in all three states and business lobbyists in North Carolina, property owners remain rightfully concerned about the impact to their property.
Eminent domain attorneys affiliated with OCA currently represent landowners in eminent domain proceedings against Dominion Resources, which seeks to obtain easements to construct the pipeline on their properties. Lawyers defending property owners in Augusta County, VA recently appeared in court to object to Dominion’s request to enter their private property to perform surveys.
Attorneys for property owners argued that landowners have a right to know when a pipeline representative is coming onto their land. Such notice is important because property owners may keep livestock or other animals, may be planting, harvesting or operating equipment and simply have a right to privacy on their property.
Is your property in the path of the Atlantic Coast Pipeline? Find an OCA attorney in your state.
OCA Lawyers Represent Property Owners Fighting the Sabal Trail Pipeline in GA and FL
Eminent domain lawyers with OCA are also in the process of helping property owners in Georgia and Florida protect their property rights in connection with the proposed Sabal Trail Pipeline. As with the other pipelines, Sabal Trail has been taking aggressive action to try to convince property owners to give up their legal rights. In some cases, they have gone so far as to attempt to perform surveys on private property without following the procedures required by the law of eminent domain.
Residents Fighting Planned Kinder Morgan Pipeline in Massachusetts
Finally, a fourth pipeline project is stirring debate and leading property owners to take legal against the federal government in Massachusetts. The Federal Energy Regulatory Commission (FERC) has authorized the new Kinder Morgan pipeline and permitting is in progress, but property owners facing eminent domain are fighting back to protect their land.
Is Your Property in the Path of a Pipeline? Contact an Eminent Domain Lawyer at OCA
If you are facing condemnation in connection with a planned pipeline, OCA’s experienced eminent domain lawyers are here to help. Our attorneys represent property owners across the country and are dedicated to protecting landowners’ constitutional rights. To speak with an OCA attorney about your case, please contact us today.
October 22nd, 2015 — In Articles
Non-Possessory Takings: North Carolina Supreme Court to Consider Inverse Condemnation in Future Highway Development Case
In a case that has garnered national attention, the North Carolina Supreme Court has agreed to review a court of appeals decision holding that a state statute effected a taking – and thereby implicated the property owners’ Constitutional rights. It is an interesting case — one that could have significant implications for property owners across the country.
State Objects to Protection of Property Owners’ Rights
The case is Kirby v. North Carolina Department of Transportation, No. OA14-184 (Feb. 17, 2015), and it arose out of a use of the North Carolina Map Act. Enacted in 1987, the Map Act allows the North Carolina Department of Transportation (DOT) to freeze development of private property that it has designated for possible future highway development. Effectively, the law allows the DOT to draw up future highway corridors, designate private property for future highway use and prevent the owner from developing the land if the improvements would get in the way of a tentatively-planned highway.
In Kirby, several landowners challenged the Map Act as a violation of their Constitutional rights. Specifically, they argued that the Act allowed the DOT to effect a non-possessory taking of their property rights without payment of just compensation.
After losing at trial, the landowners filed an appeal. On appeal, North Carolina’s intermediate court held that the DOT could reserve or “land bank” private property under the Map Act, but also said that it must pay the property owners just compensation. The court reversed the trial court ruling and remanded the case for further proceedings to determine the amount of compensation owed to each owner. This was an important win for the property owners.
NCDOT subsequently asked the North Carolina Supreme Court to review the appellate decision, which it has agreed to do. As a result, it remains to be seen whether the landowners will be compensated for the restrictions placed on their property. At Owners’ Counsel of America, we will be monitoring the case closely for further developments.
More on Inverse Condemnation and Eminent Domain
The government does not have to physically take your property nor go through the eminent domain process in order to invoke the Constitutional protections provided by the Fifth Amendment. As argued by the landowners in the Kirby case, various forms of regulatory “non-possessory” or inverse takings can invoke these protections as well.
Under the law of eminent domain, the government can only claim rights in private property for certain, well-defined public purposes. Then, when it acquires such rights in privately-owned land, it is required to compensate the owner for the “taking” of the property. When the government fails to satisfy these requirements, the remedy for affected property owners is to file suit to protect their constitutional rights and demand just compensation or remedies available under the law. The Fifth and Fourteenth Amendments protects against not only the dispossession of private land, but also against government -imposed infringements and restrictions on private property.
The Inverse Condemnation Attorneys at Owners’ Counsel of America Can Help
If you think the government may be violating your private property rights, we want to hear from you. Owners’ Counsel of America is a network of the nation’s leading eminent domain and inverse condemnation attorneys, and we are dedicated to using our collective knowledge and experience to defend private property ownership across the country. To speak with an experienced attorney in your state, call (877) 367-6963 or contact us online today.
October 12th, 2015 — In Articles
Just Compensation, Relocation Expenses and Attorneys’ Fees: Financial Compensation in Eminent Domain
Property owners who have their land condemned by the government are entitled to just compensation. This is a fundamental right established by the Fifth Amendment to the U.S. Constitution and contained in state constitutions as well.
While these constitutional protections are often the greatest source of compensation for property owners in eminent domain cases, they are not the only sources. Depending on the circumstances, various statutes may provide additional financial recourse for individuals and businesses that have their property taken using the power of eminent domain. These statutes often:
- Require payment of more than “just compensation” under certain circumstances
- Entitle property owners to recover their attorneys’ fees for defending their rights in a condemnation suit
- Provide property owners with compensation for their relocation costs.
Calculating Just Compensation
As noted above, when the government exercises its power of eminent domain, it is required to pay just compensation to the owner of the property acquired. This begs the question: Who determines what is “just”?
Generally speaking, the amount of compensation is based upon an appraisal of the property which may account for not only the land to be acquired but also the damages to any remaining property. This is not necessarily the market value or the tax value of the property taken, but rather a value of the property taken valued at its “highest and best use” plus damages to remaining property.
Unless a property owner accepts the government’s first offer, what is “just” may be determined (1) through negotiation between the government, (2) by court-appointed Commissioners, (3) by a Judge, or (4) by a jury.
Some state laws provide that property owners are entitled to more than just compensation, which may include recovery of business damages or loss of “good will”, payment of attorneys’ fees, expert fees and/or costs as well as additional compensation for the property taken.
While state governments have challenged these laws on several occasions, the courts have generally favored the property owners’ statutory rights. For example, a Minnesota court recently upheld a statute that required application of a formula that calculated a greater amount, referring to just compensation as the “minimum constitutional requirement.” A Missouri court recently upheld a statute requiring additional compensation for “Heritage Value” to long-time property owners as well.
Recovery of Attorneys’ Fees
Some states also have laws entitling property owners to recover their attorneys’ fees for challenging the government’s exercise of eminent domain. These statutes are not absolute – meaning that they don’t apply in every case – but when they do apply they provide valuable benefits to property owners. As an example, Ohio law provides that property owners can recover their attorneys’ fees if the final compensation awarded is 125 percent or more of government’s good-faith offer prior to litigation.
Reimbursement of Relocation Expenses
Along with attorneys’ fees, property owners in condemnation cases often face out-of-pocket costs in the form of relocation expenses. The Uniform Relocation Assistance and Real Property Acquisition Policies Act establishes property owners’ rights to recover relocation expenses at the federal level, though this too is a matter generally addressed at the state level and on a case-by-case basis. Read more in our eminent domain FAQs.
Speak With One of Our Eminent Domain Lawyers at Owners’ Counsel of America
If the government is trying to take your property, the attorneys at Owners’ Counsel of America (OCA) can help you protect your rights and fight to secure the compensation you deserve for the taking of your property. Find an attorney in your state or call OCA at (877) 367-6963 for more information.
September 28th, 2015 — In Articles
Recent New York Condemnation Case Highlights Key Issues for Owners Seeking to Protect Their Property
A recent decision from New York highlights many of the key arguments that eminent domain attorneys can raise on behalf of their landowner clients in cases involving eminent domain. Although the property owners in this case were unsuccessful in their attempt to dismiss the taking, the arguments are instructive for property owners considering taking action to protect their legal rights.
New York City Pursues Harlem Urban Renewal Plan Through Condemnation
While the court issued its Decision and Order August 13, 2015, the case began in 2008 when New York City authorized the Harlem Urban Renewal Plan and sought to condemn four parcels of land in connection with it. The case is In the Matter of City of New York, Fifteenth Amended Harlem-E. Harlem Urban Renewal Plan (East 125th Street), Stage 1.
Under New York’s Eminent Domain Procedure Law (“EDPL”), the City held a public hearing regarding the proposed taking of the 4 properties, made determinations and findings, and then published its findings. .The owners sought to invalidate the City’s determination and findings appealing to New York’s Appellate Division, which denied the Petition to Annul.
The Appellate Division found that the City had complied with the requirements of the EDPL, all due process of law obligations were met, the taking was for a public benefit and that the owners had not put forth a valid argument to invalidate the determination and findings.
The landowners appealed to New York’s highest court, the Court of Appeals, which dismissed their appeal on February 17, 2011, holding that the City’s efforts to obtain the parcels had been fully compliant with the Constitution and EDPL. This date is central in the most recent decision.
For reasons unknown, the City did not file a Petition to Condemn the properties until February 12, 2014 – almost three years after the Court of Appeals’ decision. Upon receiving notice of condemnation, the property owners filed a Verified Answer seeking dismissal of the Petition.
The Property Owners’ Arguments Challenging Eminent Domain
In an attempt to dismiss the taking, condemnation lawyers on behalf of the property owners raised no less than nine different legal arguments. Three of these related to the “public purpose” of the condemnation and the socioeconomic effects it would have on the area:
- The City had failed to articulate a valid public purpose the exercise of eminent domain; Condemnation would harm minority-owned businesses and minority jobs; and
- The proposed housing for which the parcels were needed would promote gentrification without any benefit to the current minority population.
The landowners also alleged that:
- The Petition to Condemn was barred by the EDPL’s three-year statute of limitations;
- The City engaged in “schemes and machinations” and is guilty of “unclean hands;”
- The City failed to comply with the procedural requirements for exercising eminent domain under the EDPL;
- The City had not effected proper notice of the condemnation; and
- Equitable relief based upon foregoing defenses.
Court Rules Against Property Owners Given the Facts of the Case
Despite the efforts of their eminent domain attorneys, the court ruled against the property owners, addressing each one of their arguments in turn. The argument receiving the most attention was the property owners’ claim that the three-year statute of limitations barred condemnation of their property.
Under New York’s EDPL section 207, condemnors are required to begin condemnation proceedings within three years of “entry of a final order or judgment on judicial review.” Other states have similar statutes of limitations as well.
Given that the Court of Appeals dismissed the property owners’ appeal on February 17, 2011, the court held that the City complied with the statute of limitations by filing its petition for condemnation on February 12, 2014. However, under a different set of facts, the court stated that it was “clear” that the City’s condemnation petition would have been improper.
As this case demonstrates, under the right circumstances, property owners may have grounds to challenge the exercise of eminent domain.
Thank you to the blog “Bulldozers at Your Doorstep” produced by Manhattan-based eminent domain law firm Goldstein, Rikon, Rikon & Houghton for highlighting this case in their August 24, 2015 post here. [Disclosure: Michael Rikon of the firm is the OCA Member for New York.]
September 21st, 2015 — In Articles
More Answers to Property Owners’ Frequently Asked Questions about Eminent Domain
The concepts – and even terminology – involved in eminent domain law are complex and can be confusing. To help property owners understand the condemnation process, we have published answers to many frequently asked questions (FAQs). In this article, we provide answers to some additional FAQs that might be helpful to property owners.
The answers provided are for informational purposes only, and should not be construed as legal advice. For a free initial consultation, please contact an Owners’ Counsel eminent domain lawyer to discuss your situation.
Q. If I receive a condemnation notice, does that mean that the government has already taken my property?
A. No. Generally, a condemnation notice is provided to inform you that the government intends to take your property through eminent domain. In many states, a condemning authority must follow certain procedures before it can acquire your property using the power of eminent domain. These procedures often require that the government provide a property owner with notice of the proposed public project and of the need to acquire your property. If you have received a condemnation notice, you still have the opportunity to consult with an experienced eminent domain lawyer to learn how you can defend your property and enforce your statutory and constitutional rights.
Q. If the government has already taken my property, is it too late to take action?
A. Probably not, however, it will depend upon the facts of your case. If your property has been acquired by the government, contact an eminent domain lawyer for a thorough case evaluation. Lawyers with OCA regularly represent property owners seeking to maximize just compensation for property acquired by eminent domain and in situations where the government may have taken property without filing condemnation proceedings, such as inverse condemnation and regulatory takings claims.
Q. What is an “easement,” and how does it relate to eminent domain?
A. Sometimes, a condemning agency does not need to acquire property outright, but only needs to obtain certain rights to use it. In these cases, the agency may seek to acquire a property right known as an “easement” using the power of eminent domain. An easement allows the government (or in some cases, a private entity) to convert a portion of your property for public use.
A recent, high-profile example of a company seeking easements through eminent domain is TransCanada’s efforts to make way for the Keystone XL pipeline. TransCanada is currently fighting with property owners in Nebraska to obtain the rights it needs to build its new pipeline across America.
Q. What should I look for in an eminent domain lawyer?
A. Eminent domain laws are complex, are constantly changing and are unique in each state and in the Federal Court system. As a result, when the government or a private entity threatens to take your private property, you need a lawyer who is experienced in and dedicated to this area of the law.
The lawyers in OCA’s nationwide network are committed to representing property owners in eminent domain and property rights litigation. OCA lawyers have successful track records representing private owners in condemnation and property rights proceedings. Their results highlight their skills and abilities. If you would like more information about an OCA attorney’s results, please contact us.
Speak with an OCA Eminent Domain Lawyer Today
Owners’ Counsel of America (OCA) attorneys are dedicated to representing private landowners who are facing the condemnation of their property through eminent domain. For more information about your property rights or what to do if you are facing an eminent domain taking, we encourage you to get in speak with an OCA attorney about your case, call (877) 367-6963 or contact us online.
September 5th, 2015 — In Articles
Can I Afford to Hire an Eminent Domain Attorney?
You have received a notice from the government informing you that your property is needed for a public project. The notice suggests that the government will use its power of eminent domain to take your property, if you can not reach an agreement on the price that the government should pay you for your land. The idea of challenging the government to defend your property, protect your rights and make sure that you are compensated fairly can be overwhelming and may even seem out of reach. You might wonder if you can afford to hire an experienced condemnation attorney to guide you through the eminent domain process and defend your property rights.
Owners’ Counsel of America attorneys offer a free initial consultation to property owners who are facing condemnation or are concerned that their property has been negatively affected or damaged by a government action. OCA lawyers will speak with an owner to gather the facts surrounding the proposed taking and learn about the land and any improvements or businesses on the property. Our attorneys will explain the condemnation process and inform you of your rights under the law. While no fees will be charged for this initial consultation, an OCA lawyer will evaluate your case and answer your questions.
OCA attorneys are dedicated to the defense of private property rights and to maximizing just compensation while minimizing the impact of the taking. Our lawyers are prepared to challenge the government to defend your property and protect your rights.
Each state has specific eminent domain legislation and procedures which can influence how attorney’s fees and litigation costs are charged (per hour, contingency fee, flat fee) and which party (condemnor/government or condemnee/landowner) is responsible for paying those fees and costs. An OCA attorney can explain how attorney’s fees and costs are calculated and will explain any provisions under the law that provide for reimbursement for either fees and/or costs to a landowner who defends his or her property in an eminent domain proceeding.
If your property has been affected by a public project or is threatened with condemnation, contact an OCA lawyer in your state for a free case evaluation and explanation of the eminent domain process, including how attorney’s fees and costs are determined. Don’t allow the belief that lawyers are too expensive or the fear that you can’t afford a skilled attorney prevent you from defending your property rights and fighting for just compensation.
September 4th, 2015 — In Articles
Property Owners’ Frequently Asked Questions About the Keystone XL Pipeline
If you own property on the proposed route of the Keystone XL Pipeline, it is important to understand your legal rights. Below are answers to some frequently asked questions about the Keystone XL Pipeline. You can also read our answers to frequently asked questions about eminent domain.
What is the Keystone XL Pipeline?
The Keystone Pipeline is an oil pipeline system that runs from the Western Canada Sedimentary Basin in Alberta to refineries and distribution centers in Illinois, Oklahoma and Texas. Commissioned in 2010, the pipeline has been subject to intense debate with regard to its environmental impact, long-term viability, and impact on property owners across America.
While the original Keystone Pipeline was completed in 2010, the Keystone XL Pipeline project has been proposed to construct a second, route from Alberta to Texas passing through Montana, South Dakota and Nebraska. Keystone XL will connect with the Keystone Pipeline in Steele City, Nebraska, and
How Does Eminent Domain Fit Into the Keystone XL Pipeline Discussion?
Eminent domain is the power held by federal, state and local governments to take (or “condemn”) private property for public use. However, the government also has the authority to grant the powers of eminent domain to private corporations undertaking projects for the benefit of the general public.
Viewing the Keystone XL Pipeline as an important public works infrastructure project, Montana and South Dakota have authorized the exercise of eminent domain to acquire the private property needed for the pipeline’s construction. A Nebraska district court judge issued a temporary injunction on February 12, 2015, halting TransCanada’s efforts to acquire easement rights from Nebraska landowners for the Keystone XL pipeline through eminent domain proceedings.
The use of eminent domain is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution. The Takings Clause of the Fifth Amendment places two requirements on the Federal Government’s exercise of eminent domain power: (1) the property must be acquired “for public use,” and, (2) the taking authority must pay “just compensation” to the owner of the property acquired. The Fourteenth Amendment extends the limits of the Takings Clause to state and local governments’ use of eminent domain.
Can TransCanada use Eminent Domain to Take Private Property for the Keystone XL Pipeline?
Yes. TransCanada has been granted eminent domain power to acquire private property for the construction of the Keystone XL Pipeline in Montana and South Dakota. However, there have been numerous legal challenges to TransCanada’s use of eminent domain and private property owners’ constitutional rights.
Subject to regulatory and government approvals, utility companies – including foreign utility companies such as TransCanada – can exercise eminent domain in order to undertake large-scale infrastructure projects benefitting the public.
Have the Courts Prevented any Eminent Domain Takings Relating to the XL Pipeline?
Yes. Earlier this year, OCA Nebraska Member Bill Blake wrote about a case in Nebraska in which the judge issued a temporary injunction disrupting the progress of the Keystone XL Pipeline. There have been similar court cases along the pipeline’s route as well.
Of course, not all property owners’ challenges have been successful. For example, in 2012 a Texas farmer lost her bid to avoid condemnation to make way for the Keystone XL Pipeline.
What Should I Do if I Receive a Condemnation Notice Relating to the Keystone XL Pipeline?
If you receive notice that TransCanada is seeking to condemn your property for the Keystone XL Pipeline, contact an eminent domain attorney to learn more about the eminent domain process and how to protect your property rights. Owners’ Counsel of America is a network of experienced eminent domain attorneys dedicated to defending the rights of private property owners across the country.
Contact Owners’ Counsel of America Today
For more information about protecting your property against the exercise of eminent domain, contact Owners’ Counsel of America today.
September 2nd, 2015 — In Articles
Understanding Your Rights in Inverse Condemnation and Regulatory Takings Cases
The Fifth Amendment to the U.S. Constitution establishes that the government must pay property owners just compensation for the taking of private property for a public purpose. Most government takings involve the condemnation of private property using the power of eminent domain. In a typical eminent domain case, the government issues a notice in advance of the taking and in most jurisdictions makes an initial offer to purchase the needed property.
The property owner, therefore, has an opportunity to protect his or her property rights and obtain just compensation. Owners’ Counsel of America (OCA) attorneys represent property owners in eminent domain and inverse condemnation proceedings nationwide.
What if the condemning authority acquires your property without following eminent domain process? Suddenly you realize that the government is using your property without your consent and without compensating you. What should your next step be?
Inverse Condemnation and Property Owners’ Constitutional Rights
In such situations, property owners can seek remedy with the courts for the taking of their property. This process is generally known as “inverse condemnation.” In inverse condemnation actions, property owners file a claim in court to enforce their rights under the Fifth Amendment. Depending on your state jurisdiction, a statute of limitations may apply. It is imperative that an owner seeks assistance from a qualified and experience attorney to insure a successful resolution to an inverse condemnation claim.
What Constitutes a “Taking”?
A taking of private property can be a direct and obvious action by government, such as the construction of a public building on private land, or may be less clear, such as a local ordinance or regulation that deprives the property owner of all economically beneficial use of the property without compensation.
In a more obvious 2014 inverse condemnation case handled by OCA attorneys, the State of Mississippi started constructing a municipal harbor and parking lot on a Katrina-ravaged restaurant owner’s property – but the start of a government works project is not necessary to give rise to a claim for inverse condemnation. For example, property owners may be entitled to compensation in cases involving:
- Temporary flooding of private property
- Prohibiting use of groundwater for irrigation
- Passing a government regulation, such as a zoning ordinance, that deprives the property owner of economically beneficial use of the property
This latter example is known as a “regulatory taking.” In regulatory takings cases, property owners may be able to seek invalidation of the subject regulation in addition to pursuing a claim for just compensation. The procedures and laws regarding regulatory takings claims vary from state to state and can be extremely complicated. If you believe that the use of your property has been negatively affected by a government regulation, seek the guidance of an experienced property rights attorney.
What Do You Do if the Government Has Taken Your Private Property?
If you believe that you have been denied just compensation for the taking of your property your property has been damaged by a government regulation, it is important to act quickly to enforce your rights and meet any statute of limitations that may apply in your state. OCA’s nationwide inverse condemnation lawyers can help you protect your rights and obtain just compensation.
Contact the Inverse Condemnation Attorneys at Owners’ Counsel of America
The attorneys at OCA are dedicated to representing property owners in inverse condemnation and regulatory takings claims against the government. To discuss your case with an experienced property rights lawyer in your state, please contact us today.
August 31st, 2015 — In Articles
U.S. House of Representatives Re-Introduces Bill Limiting the Government’s Exercise of Eminent Domain
United States Congressman Jim Sensenbrenner (R-Wis.) has re-introduced a bill in the House of Representatives that would place limits on federal, state and local governments’ exercise of the power of eminent domain. If passed, the Private Property Rights Protection Act (PPRPA) would provide a financial disincentive for state and local government agencies seeking to condemn private property for purposes of “economic development.”
Bill Proposes Prohibitions on Use of Eminent Domain for Economic Development
Calling condemnations of private property for economic development an “abuse” of the power of eminent domain, the PPRPA establishes that any state or local government using its power of eminent domain for such takings would become ineligible for federal funds for two years following a court’s determination that the PPRPA has been violated.
In addition, the law prohibits the federal government from using eminent domain for economic development purposes. Under the Act, landowners and tenants harmed by economic development takings have a private right of action to enforce any provision of the Act in court and may also seek a preliminary injunction or temporary restraining order to prevent condemnation of their property, if appropriate. The PPRPA focuses specifically on condemnations for “economic development,” defined as:
“[T]aking private property, without the consent of the owner, and conveying or leasing such property from one private person or entity to another private person or entity for commercial enterprise carried on for profit, or to increase tax revenue, tax base, employment, or general economic health . . .”
The Act also provides examples of eminent domain that are specifically excluded from its definition of “economic development,” these include:
• Roads, hospitals, airports, military bases and other public properties
• Privately-owned public projects, such as railroads
• Acquiring abandoned property
• Clearing defective chains of title
• Use by utility companies, as in the case of the Keystone XL Pipeline
It should be noted that prior versions of the PPRPA have failed to attain the necessary support to become law. However, if the 2015 bill is successful, it will represent a landmark victory for the rights of private property owners across America.
The Private Property Rights Protection Act and Kelo v. City of New London
The original PPRPA was a response to the 2005 U.S. Supreme Court case of Kelo v. City of New London. In Kelo, the Supreme Court held that the power of eminent domain could be used to take property from one private owner and transfer to another private entity if the transfer would benefit “economic development.”
More specifically, the Court allowed the condemnation of land and homes owned by private citizens for use by Pfizer in the development of a $300 million research facility that has never been built.
Since the Supreme Court’s decision in Kelo, the use of eminent domain for economic development has been a hot button issue with lawmakers and property owners throughout the country. Read more about the fallout from Kelo v. City of New London.
Contact an Eminent Domain Lawyer at Owners’ Counsel of America
Owners’ Counsel of America is a network of experienced attorneys who are dedicated to defending the rights of private property owners. To find an eminent domain attorney in your area, call (877) 367-6963 or contact us online today.
August 14th, 2015 — In Articles
It’s Been 10 Years Since Kelo v. City of New London. Where are We Now?
On June 23, 2005, the U.S. Supreme Court handed down one of the most controversial property rights decisions in recent history. The Court’s 5-4 decision holding that New London, CT could condemn 15 homes and transfer ownership to a private entity for the purpose of encouraging “economic development” sent a shockwave through the property rights landscape and ignited a decade’s worth of debates, court battles and legislative efforts in response to the ruling. With June 2015 marking the 10-year anniversary of Kelo v. City of New London, let’s take a look back at how we got to where we are today.
Looking Back: The Supreme Court’s Landmark Decision in Kelo v. City of New London
The case of Kelo v. City New London arose out of a redevelopment plan proposed by the city which centered around the local government’s power to use eminent domain to acquire private property for a public purpose. The City of New London, CT condemned and seized private residential property in a working-class neighborhood near the waterfront in order to convey the property to Pfizer for the construction of a $300 million research facility.
Dana Berliner, Litigation Director at the Institute for Justice and one of the attorneys who represented Ms. Kelo and her neighbors before the Supreme Court noted that the abuse of eminent domain power by governments for the benefit of “essentially private projects” had become rather routine and one which many felt there was “little point in fighting.”
However, Ms. Berliner, along with fellow IJ attorney Scott Bullock, Ms. Kelo and her neighbors mounted a spirited challenge that caught the attention of the media and the public. The case catapulted the debate to the forefront of the media and our daily discussions. Did the government really have the right to seize private property from its citizens for the benefit of and use by major corporations?
While the Fifth Amendment of the U.S. Constitution — “nor shall private property be taken for public use, without just compensation” — requires the payment of just compensation for the taking of private property using the power of eminent domain, the prospect that corporations in cooperation with local government could take private property for their private use was too much for many people to swallow.
Despite IJ’s valiant efforts, the Supreme Court ruled in favor of the City of New London. Citing the public’s interest in economic growth and the public benefits (such as job creation and increased tax revenue) that could flow from private development projects such as Pfizer’s proposed research facility, the Court held that the municipality did not violate the public use component of the Fifth Amendment in seeking to promote “economic development.”
Major Developments (or the Lack Thereof) Since Kelo v. City of New London
In the 10 years since Kelo, there have been several developments in the law of eminent domain as it relates to “economic development.” However, broadly speaking, Kelo remains the law of the land.
• A Patchwork Quilt is No Way to Protect Constitutional Rights – As Ms. Berliner wrote recently, “states have filled the vacuum of federal constitutional protection” that remained following the Kelo decision. A total of 47 states have increased protections for private property owners against the abuse of eminent domain for private development. However, in three states (Arkansas, Massachusetts, and New York), as well as the District of Columbia and U.S. territories (such as Puerto Rico, Guam and the U.S. Virgin Islands), owners are left with little protections since Kelo. Despite the steps that 47 states have taken to increase protections, the fact remains that each state responded differently and what we have currently is a patchwork quilt of varied protections or lack thereof across the country. This adds to the complexity of the eminent domain law and landowners’ need for qualified and experienced counsel when threatened by the government’s use of eminent domain.
• Supreme Court Refuses to Consider Kelo Challenges – While the Supreme Court has weighed in on a number of property rights cases that have sought review since Kelo, it has specifically refused to consider Kelo-like challenges to the public use component of the Fifth Amendment’s Takings Clause. In the 2013 case of Ilagan v. Ungacta, Owners’ Counsel of America (OCA) and other property rights advocates and legal scholars petitioned the Court to clarify a key aspect of its decision in Kelo — the general distinction between authorized “economic development” condemnations and unconstitutional “pretextual takings.” However, the Supreme Court declined to hear the case, leaving this important question unanswered. Read more about OCA’s involvement in Ilagan v. Ungacta and our efforts in other landmark property rights cases here and here.
• Proposed Federal Legislation – In 2015, Congressman Jim Sensenbrenner (R-Wis.) re-introduced the Private Property Rights Protection Act (PPRPA) on the floor of the House of Representatives. Several iterations of PPRPA – which, in its current form, would impose economic sanctions and provide a private right of action against governments that exercise eminent domain for economic development – have received consideration in years past. Additionally, Congressman Tom Reed (R-NY) introduced the Defense of Property Rights Act this year in response to recent actions taken by government relating to Marcellus Shale exploration and drilling. Reed’s bill seeks to provide an option for compensation for property owners unfairly harmed by government action and to change the judicial process owners must take in seeking to remedy government regulation of their property. At this time, no federal bills seeking to protect private property rights since Kelo have become law. OCA continues to monitor and will weigh in on any Federal legislation seeking to protect the right of private property ownership.
• Economic Development Qualifies as a Public Purpose Even if the Government Can Not Prove the Benefit Will Materialize – Despite the City’s Supreme Court Victory, the Project Never Came to Fruition. No buildings have been constructed on the site of the condemned homes, nor in the larger project area. In fact, the planned beneficiary of the proposed redevelopment project, Pfizer, not only pulled out of the project, the company pulled out of the city altogether. The Fort Trumbull neighborhood where Susette Kelo and her neighbors lived is now a vacant field home to weeds and feral cats. As law professor Ilya Somin wrote on the 10th anniversary of the Kelo decision, the Court held that virtually any potential public benefit qualifies as a public use, even if the government cannot prove that the anticipated benefit will ever materialize.
As these and other developments have demonstrated, despite widespread support for clarification or outright reversal of the Supreme Court’s decision, 10 years later, Kelo v. City of New London remains firmly entrenched in U.S. law of eminent domain.
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