News & Events

October 1st, 2015 — In News & Events

12th Annual Brigham-Kanner Property Rights Conference October 1 & 2, 2015

This evening Joseph William Singer, Bussey Professor of Law at Harvard Law School, will be presented with the 2015 Brigham-Kanner Property Rights Prize on the campus of William & Mary in Williamsburg, Virginia.  Professor Singer will be the 12th recipient of this prestigious award which is presented annually to a scholar, lawyer or jurist whose work has advanced the cause of property rights and has contributed to the overall awareness of the important role property rights play in the broader scheme of individual liberty.

Tomorrow, October 2, 2015, William & Mary Law School will host the Twelfth Annual Brigham-Kanner Property Rights Conference.   The Property Rights Conference and Prize are presented by the William & Mary Property Rights Project. This annual Conference is notable for its unique approach which includes bringing together the members of the bench, the bar and academia on Conference panels, among the participants as well as within the prize recipients (the 2011 Prize Recipient Justice Sandra Day O’Connor is a retired Supreme Court Justice and 2014 Prize Recipient Michael Berger is a practicing appellate attorney, property rights advocate and a Member of OCA).  See this list of previous Brigham-Kanner Prize Recipients for more details about the other takings scholars and property rights attorneys who have been awarded the Prize.

The Property Rights Conference and Prize are named in honor of the lifetime contributions made to property rights law by Florida eminent domain attorney, Toby Prince Brigham (now retired) and California appellate and condemnation attorney Gideon Kanner (also now retired).  This year’s Conference will discuss Professor Singer’s property rights scholarship in a panel titled “Property as a Form of Governance” as well as tackle issues relating to “Civil Forfeiture of Property” and “Property Rights in the Digital Age.”  Possibly the most interesting panel to eminent domain lawyers and property owners nationwide is the third panel “Of Pipelines, Drilling, & the Use of Eminent Domain.”  This panel will address the constitutional and legal issues raised by the grant of eminent domain power to pipeline companies and the ownership interests affected by some of the newest methods used to collect fuel – fracking and forced pooling.

While we have attended the Brigham-Kanner Property Rights Conference in years past.  We are unfortunately unable to attend this year, however, a number of OCA Members will be in attendance and we look forward to hearing their thoughts on the discussions as well as following along tomorrow via live blog coverage from OCA Hawaii Member, Robert Thomas, at inversecondemnation.com.

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September 30th, 2015 — In News & Events

Latest Developments Regarding Eminent Domain and the Keystone XL Pipeline

Since President Obama’s veto of a Senate bill authorizing construction of the Keystone XL pipeline in February, speculation regarding the ultimate fate of the pipeline project has continued to swirl. As we fast approach the seven-year anniversary of the Keystone XL pipeline’s original proposal, Congress, the Canadian government, residents along the pipeline’s proposed path and TransCanada (the oil company behind the pipeline) all appear to be getting anxious about the President’s and the State Department’s impending decision on whether to allow the project to move forward.

State Department Continues to Review, TransCanada Fears Rejection

When asked about the status of the Keystone XL Pipeline in August, a White House spokesman stated that the project remains under review by the State Department. Pursuant to a 2004 executive order, pipelines crossing the U.S. border are subject to a government-wide review and a presidential permit. An Associated Press review of cross-border pipeline applications since 2004, concluded that the U.S. government has either approved or rejected every application, except for the Keystone XL, in an average of 478 days.  The Keystone XL application review, on the other hand, has required nearly 5 times as long and been a source of significant public and political debate.

However, at least one source close to the matter at TransCanada believes that a rejection has been preordained. As TransCanada continues to publicly hold out hope for the project, an inside source told the CBC that the U.S. government is “just waiting for the right time” to announce its decision to pull the plug. The source also suggested that TransCanada is consulting attorneys about a possible NAFTA lawsuit should the company’s application be denied.

Nebraska Property Owners’ Challenge of Eminent Domain Law Set for Trial

In July, there was slight progress in the lawsuit landowners filed challenging the constitutionality of the Nebraska law authorizing the use of eminent domain for the Keystone XL pipeline. As we have previously discussed, the lawsuit seeks to prevent TransCanada from using condemnation to obtain easements from private property owners along the pipeline’s planned corridor. A trial date has been set for October 19, during which the District Court of Holt County, Nebraska will hear arguments on the constitutionality of Legislative Bill 1161.

Will Canadian Election Delay Keystone XL Pipeline Decision?

In other pipeline news, Bloomberg reported in August that Canada’s upcoming election for Prime Minister may delay the U.S.’s decision on the pipeline. With the project leading to rising tensions between the U.S. and Canadian governments, a former U.S. ambassador to Canada has suggested that it may be in both nations’ best interests for the U.S. to wait to work with Canada’s newly-elected leader. As has been widely reported, the two primary candidates in the Canadian election have deeply opposing views on the Keystone XL pipeline.

Of course, caught in the middle of all this are the property owners who may face condemnation proceedings if the Keystone XL pipeline is ultimately approved as well as those who have already negotiate easement agreements with TransCanada. Owners’ Counsel of America continues to monitor the political activity, the application review and legal battles that will impact the property rights of individuals in Nebraska and across the country.  To locate an attorney in your state, call us toll-free at (877) 367-6963 or contact us online today.

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September 10th, 2015 — In News & Events

State Legislators Reconsidering Key Eminent Domain Issues in 2015

While the Keystone XL pipeline and other condemnation matters make national headlines, state lawmakers across the country are proposing legislation to protect property owners’ rights. In this article, we review four state legislative efforts that could reshape eminent domain law and property rights in 2015 and beyond.

California Considers Changes to Appraiser Standards

The California legislature has introduced a bill (AB-624) that would allow real estate appraisers to use standards other than the Uniform Standards of Professional Appraisal Practice. The proposed legislation is intended to modernize California’s appraisal regulations and is similar to Texas law as well as legislation being considered in several other states.

The new law would not apply to “federally related” activity, which raises a question as to whether it would allow for use of alternative appraisal standards in eminent domain proceedings. While intended to allow for flexibility to meet market and consumer demands, if it becomes law, AB-624 may lead to disputes among parties litigating real estate valuation.

Idaho Places New Limits on Exercise of Eminent Domain

On March 26 of this year, Idaho’s Governor signed Senate Bill 1044 into law, prohibiting the condemnation of private property for the construction of “trails, paths, greenways or other ways for walking, running, hiking, bicycling or equestrian use, unless adjacent to a highway, road or street.” The law amends Section 7-701A of the Idaho Code, placing these additional limitations on the State and local government’s use of eminent domain.

North Carolina Constitutional Amendment Proposed in Response to Kelo

North Carolina’s State House has proposed an amendment to the state’s constitution limiting the use of eminent domain in response to the U.S. Supreme Court’s controversial decision in Kelo v. City of New London. While the Court held in Kelo that the power of eminent domain can be used to take property from one private owner and transfer to new private owners for purposes of “economic development,” the proposed amendment would allow condemnation only for “public use” but not for “public benefit.”

The proposed amendment would also require that just compensation be paid to affected landowners and establishes the right to demand a jury trial. If both chambers approve, the measure will be placed on the ballot as a referendum in 2016.

Pennsylvania Considering Increase in Compensation for Displaced Property Owners

Pennsylvania legislators are considering a bill to amend the state’s eminent domain statutes increasing compensation provided to displaced property owners for moving and related expenses and replacement housing. House bill 1411 would increase the reimbursement for reestablishing a farm, nonprofit organization or small business at a new site from $12,000 to $25,000 and would increase the amount provided to homeowners from $27,000 to $31,000, under certain circumstances.

Contact an Owners’ Counsel of America Attorney for More Information

Lawyers with Owners’ Counsel of America (OCA) represent property owners in eminent domain proceedings nationwide. For more information about condemnation law, or to speak with an attorney about your situation, locate a lawyer in your state.

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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.

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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.

Owners’ Counsel of America | Experienced Eminent Domain Lawyers Nationwide
OCA’s eminent domain lawyers represent property owners in condemnation cases throughout the country. If you need help protecting your constitutional right to own property, call (877) 367-6963 or send us an email today.

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July 23rd, 2015 — In News & Events

OCA and The Counselors of Real Estate Announce a Webinar Today Focused on the Impact of the Controversial Kelo Decision

Today, Owners’ Counsel of America and The Counselors of Real Estate® (CRE) will present our first cooperative webinar: Kelo v. New London: The Grasping Hand and Its Legacy at 12:30 PM (Eastern) / 11:30 AM (Central) / 10:30 AM (Mountain) / 9:30 AM (Pacific) / 6:30 AM (Hawaiian).  Participants can register here.

Our distinguished panel includes:

Anthony DellaPelle, Esq., CRE, Shareholder/Partner, McKirdy & Riskin, PA.
Tony has represented property owners in eminent domain, redevelopment and real estate tax appeal matters for more than 25 years.  He also has significant experience representing landowners in land use, zoning and planning matters.  He is the New Jersey member of OCA and a designated member of The Counselor of Real Estate.

Professor Ilya Somin, Professor of Law, George Mason University School of Law.
Ilya has spoken and written extensively on the topic of eminent domain and public use.  In 2009, he testified on property rights issues at the United States Senate Judiciary Committee confirmation hearings for Supreme Court Justice Sonia Sotomayor.  He is the author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015).

Jack Sperber, Esq., CRE, Partner, Faegre Baker Daniels.
Jack represents property owners and condemning entities in eminent domain proceedings in Colorado and around the country.  Jack regularly writes and lectures at legal conferences and before trade associations.  He has served for many years as one of the planning chairs for the American Law Institute’s national eminent domain conference and is the Colorado representative of OCA and a designated member of The Counselor of Real Estate.

Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert.
Robert is a land use, property rights and appellate attorney focusing on regulatory takings, eminent domain, water rights, and voting rights cases.  He is a frequent speaker on land use and eminent domain issues and regularly publishes scholarly and practical articles in these practice areas.  He is a planning chair of the American Law Institute’s national eminent domain conference and also the Hawaii member of OCA.

“The Supreme Court’s decision in Kelo changed the political physics of property rights,” said Andrew Brigham, Owners’ Counsel of America President and Florida member.  “While the Federal baseline under Kelo permits eminent domain takings for economic development and the transfer of private property to private entities, we have witnessed legislative reforms at the state level which restore private property rights and again allow the marketplace to determine who may benefit from investment-backed expectations.”

OCA is honored to collaborate with The Counselors of Real Estate to plan and host this webinar discussing the impact of the infamous and controversial Kelo decision during the ten year anniversary of the Supreme Court’s decision in the case.

“Kelo v. New London: The Grasping Hand and Its Legacy” webinar will take place today, Thursday, July 23, 2015 at 6:30 AM (HST), 9:30 AM (PDT), 10:30 AM (MDT), 11:30 AM (CST), 12:30 PM (EDT), 5:30 PM (BST) and will be 75 minutes in length.  To register visit here.

We hope that you will join us later today.

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June 25th, 2015 — In Articles

Property Owners’ Frequently Asked Questions About Eminent Domain

When you learn that your property may be condemned, you need information and advice as to how to proceed and what actions to take. Here are a number of common questions and answers which may be helpful.

Q. What is eminent domain?

A. Eminent domain is the power of the government to take private property belonging to its citizen’s for public use, provided just compensation is paid to the owner. It can also be called “condemnation” or, in some states, “expropriation.”

Q. Who can use eminent domain?

A. Local, state and the federal government have the power of eminent domain. The government’s power of eminent domain extends to government agencies, such as your municipality’s public works department, state’s Department of Transportation or the U.S. Forest Service. Some private companies or individuals may also be granted the power to condemn private property to complete certain projects intended to benefit the public. These private companies may include redevelopment authorities, oil and gas companies, railroads or other privately-owned utility companies.

Q. What does “public usemean?

A. Typically, public use has been defined as government projects intended to bring a benefit to its citizens, such as widening roads, building schools, constructing parks and correcting drainage issues. That definition has expanded over the years to include improvement of run-down (“blighted”) neighborhoods and the redevelopment of certain areas with a plan approved by, and usually supervised by, the government.

Q. The government (or a transportation authority, redevelopment agency, utility or energy company) wants to take my property by eminent domain. What can I expect to happen? What are the steps in a condemnation case?

A. The laws and procedures relating to eminent domain vary from state to state and can be quite complex. We recommend that you consult with an experienced eminent domain lawyer in your state for specific information about your property rights and to learn more about the condemnation process.

Q. Can eminent domain be used to take my property and give it to another private party?

A. The federal and state constitutions say that property may only be condemned for “public use.” For many years, “public use” meant that property could be taken for things like roads, schools, and public buildings. Later, courts allowed eminent domain to be used for private corporations developing public utilities, like electric companies and railroads. In the 1950’s, eminent domain became increasingly used for “slum clearance.” Once an area was declared to be a slum or “blighted,” property could be taken using eminent domain and then transferred to another private party. More recently, local governments have tried to use eminent domain to transfer land to other private parties. Whether and under what circumstances courts will allow this use of eminent domain is a matter of state law. Several states permit condemnations for economic development, but some do not. You should consult with an experienced eminent domain lawyer in your state to determine if the condemnation threatening your property is legal.

Q. Should I discuss the value of my property with a government representative?

A. No. We recommend that you consult with an experienced condemnation attorney first before discussing anything with the government representative. Compensation by a condemning authority may include special benefits and rights which the property owner needs to know before dealing with the condemning authority. What the property owner gains by using an experienced eminent domain lawyer is a level playing field with the condemning authority.

Q. Why shouldn’t I negotiate on my own?

A. Everything you say or do may be used against you by the condemning authority at different stages of negotiations and litigation. By waiting to select an attorney after talks have been underway, you risk compromising your rights and compensation. Keep in mind that you, as the property owner, are engaging with a condemning authority which has full knowledge of its rights while you have little knowledge of your rights under eminent domain law.

Q. I have plans to develop my property. Should I continue to secure government approvals to develop my land?

A. No. We do not recommend that you attempt to obtain building permits, variances, zone changes, subdivision approvals or curb cuts without consulting experienced eminent domain counsel. A failed attempt to obtain such approvals can be used against you in condemnation litigation and can be extraordinarily harmful to your case.

Q. Should I appeal my real estate tax assessment?

A. Prior to considering an appeal of your real estate taxes, you should consider consulting an attorney experienced in eminent domain litigation. If you do appeal the tax assessment, your opinion of value in the tax appeal may be used against you in the condemnation proceeding and affect the amount of just compensation you receive.

Q. Should I stop caring for and maintaining my property?

A. No. Even if you are facing condemnation, the value of your property is often determined at the time it is actually taken by the government. A lack of maintenance may decrease its value affecting the amount of just compensation you may be entitled to receive.

Q. What should I tell the government real estate appraisers?

A. Very little, if anything. They are not interested in you receiving the highest possible value for your property. They are hired by the governmental agency seeking to acquire your property. Consult with an experienced eminent domain attorney before giving any information to the government appraisers.

Q. What information and documents should I provide the government if they are looking to condemn my property?

A. Nothing, prior to consulting with an experienced condemnation lawyer. As a general rule, do not supply copies of leases, expense records, profit and loss statements, or similar documents to the government or its representatives.

Q. Should I let the government conduct any environmental or other tests?

A. No. Talk to an experienced condemnation attorney first. Some of the tests the condemning authority might wish to do are routine and not invasive. However, some tests require boring large holes into the ground or establishing monitoring wells and may disrupt your use and enjoyment of the property. Further, potential contamination underground or in a building can further complicate the eminent domain proceedings. Contamination on your property could significantly impact your compensation if not handled correctly.

Q. Can I rely upon the government’s relocation personnel to obtain all of my relocation benefits?

A. No, you need to make sure you are fully informed of your monetary and non-monetary rights under relocation laws. In some instances, federal relocation laws apply and in others situations your state relocation law will apply. An experienced condemnation lawyer will insure that your benefits are maximized and will know how to resolve differences without additional litigation.

Q. What is relocation assistance and who qualifies to receive it?

A. Although reimbursement for relocation expenses is related to the eminent domain process, it is handled separately. In 1970, Congress passed the Uniform Relocation Assistance and Real Property Acquisition Policies Act, and amended it in 1987. Although this action provided clarification in some areas, the relocation reimbursement process for state projects still varies according to location, and cases are usually evaluated on an individual basis.

If you have been displaced due to federal or federally funded projects, an experienced condemnation lawyer can insure that your benefits are maximized.

Q. Why should I consult with an eminent domain lawyer?

A. Eminent domain proceedings are complex and can involve complicated issues such as the property’s highest and best use, the calculation of just compensation and the damages a property has suffered due to the taking. Property condemnation can also be a confusing and stressful process. Having a qualified condemnation lawyer on your side to assist as you navigate the process is not only helpful, but possibly essential. The government will have experienced eminent domain counsel on its side. To protect your rights, shouldn’t you?

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April 16th, 2015 — In News & Events

Virginia Supreme Court Rules in Favor of Landowners in Eminent Domain Case: Condemnor’s Initial Appraisal is an Admission of Value

This morning the Virginia Supreme Court issued its opinion in Ramsey v. Commissioner of Highways, No. 149029, finding that the Virginia Department of Transportation’s (VDOT) initial pre-condemnation appraisal is not a confidential offer of settlement, but rather, an admission of value that should be considered as evidence at trial.

OCA filed an amicus brief in support of the landowners, John and Janet Ramsey, arguing that the most important evidence in an eminent domain trial, the value of the property, should not be withheld from the jury.  More about OCA’s brief is here and our earlier discussion about this case is here.

In this condemnation case, VDOT commissioned an appraisal of the Ramsey property before offering to purchase it in advance of condemnation.  The owners refused the state’s offer and the state filed suit.  The landowners hired Virginia eminent domain law firm Waldo & Lyle to represent them in the proceedings.  (Note: Joe Waldo of Waldo & Lyle is the OCA Virginia representative.)

Prior to trial the state commissioned a second appraisal using a different appraiser who relied, in part, on the initial appraisal report.  Nevertheless, the second appraisal was much lower that the initial appraisal.

The landowners sought to admit the initial appraisal into evidence at trial.  However, the state argued that its pre-take appraisal was offered as an attempt to settled and, therefore, inadmissible.  The trial court agreed and barred its admission, limiting testimony and cross examination to only the minor issue upon which the second appraiser relied (an estimate of value relating to landscaping destroyed by the take).

The jury’s verdict came in below the initial appraisal and $14,675 under the estimate of compensation VDOT deposited into the registry shortly after filing the lawsuit.  A judgment was entered requiring the landowners to refund the $14,675 plus nearly 3 years of interest to the DOT.  The landowners appealed.

The opinion written by Justice Cleo E. Powell states:

The record demonstrates that the landowners were given the Savage appraisal, showing that the value of their entire property was $500,000, prior to the time any offer to purchase was made and/or settlement negotiations were initiated.  The landowners rely on United States v. 320.0 Acres of Land, 605 F.2d 762 (5th Cir. 1979) for the proposition that the Savage appraisal was admissible into evidence as pre-condemnation party admissions by the Commissioner.  In 320.0 Acres of Land, the landowners sought to introduce into evidence the 42 U.S.C.§ 46512 statements of just compensation given to them by the Federal agency seeking to condemn their property.  The Fifth Circuit noted that the § 4651 statements were admissible because “[t]echnically, at the time the statements are provided, there is no disputed claim, and hence no settlement negotiations of a disputed claim.”  320.0 Acres of Land, 605 F.2d at 824-25.  The Fifth Circuit held that “if § 4651 statements of just compensation are provided a prospective condemnee, they are admissible at a subsequent compensation trial as an admission, once it becomes known that at trial the Government is valuing the property at a lower figure.”  Id. at 825.  See also Department of Transp. v. Frankenlust Lutheran Congregation, 711 N.W.2d 453, 462 (Mich. Ct. App. 2006)(“[A] landowner may, if the condemning authority seeks to establish a lower valuation for the property at trial, introduce evidence of the higher, precondemnation valuation for the purpose of rebutting the authority’s lower valuation.”).  We agree with this logic, which is consistent with the language adopted by the General Assembly.

Slip Op at 5 & 6.

The opinion reverses the trial court judgment and remands the case back to the trial court for further proceedings.

With today’s opinion, VDOT’s practice of reducing its statement of just compensation before trial should end with the understanding that “the Government is not completely free to play fast and loose with landowners telling them one thing in the office and something else in the courtroom.” (U.S. v. 320 Acres of Land, 605 F.2d at 825.)

Ramsey v. Commissioner of Highways, Virginia Supreme Court Opinion (April 16, 2015)

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March 26th, 2015 — In News & Events

Owners’ Counsel of America Files Amicus Brief Supporting Landowner in Eminent Domain Case Before Oregon Supreme Court

The Owners’ Counsel of America (OCA) together with the Central Oregon Builders Association (COBA) and Oregonians In Action (OIA) filed an amicus brief supporting the property owner in State of Oregon v. Alderwoods (Oregon), Inc., case number S062766. The brief asks the Oregon Supreme Court to confirm a long-standing rule that owners of property directly adjacent to a road have a right to direct access to that road. The brief seeks to reverse a Court of Appeals decision which erroneously affirmed a trial court ruling depriving the landowner of the right to a jury trial to determine the issue of just compensation in this eminent domain case.

In State of Oregon v. Alderwoods (Oregon), Inc., 265 Or App 572, 336 P3d 1047 (2014), twelve judges of the Oregon Court of Appeals split 6-6 resulting in an affirmance by an equally divided court of the trial court’s decision to withhold from the jury evidence of the reduction in Alderwoods’ property’s value resulting from the Oregon Department of Transportation’s (ODOT) taking of two driveways which provided direct access to the property from SW Pacific Highway (Highway 99W), in Tigard, Oregon. Alderwoods appealed to the Oregon Supreme Court, which agreed to review the case.

The brief was authored by Jordan R. Silk and D. Joe Willis of the Pacific Northwest regional law firm Schwabe, Williamson & Wyatt. Schwabe attorneys Kelly M. Walsh and Jill S. Gelineau (OCA Oregon Member) also contributed to the brief.

Speaking on behalf of amici, Joe Willis explained that “[t]he fractured analyses of the Court of Appeals’ concurring opinions ignore established principles of Oregon and federal constitutional law. If the Oregon Supreme Court affirms the Court of Appeals and agrees that juries are barred from considering evidence that property loses value when direct access to adjacent highways is cut off, the property rights of every landowner in Oregon are in jeopardy.”

In an effort to improve Highway 99W, The Oregon Department of Transportation (ODOT) brought an eminent domain action against Alderwoods seeking to take all “rights of access, if any” to the highway.  A month after filing the condemnation suit, ODOT notified the property owner that it was eliminating the driveways through a separate administrative action because they did not meet current safety standards.

Alderwoods’ property had two driveways providing direct access to Highway 99W that had existed since the 1930s. These driveways were eliminated by ODOT and replaced with a curb and sidewalk as part of the highway improvement project.  At trial ODOT requested the court bar the admission of any evidence that the loss of the driveways devalued the remaining property.  The court agreed and prohibited the landowner from presenting this evidence to the jury.

“Under Oregon common law, owners of properties abutting a state highway or county road have a right of direct access to that road,” explained Gelineau.

“In this case, ODOT indicated in its original eminent domain petition that it would condemn Alderwoods’ rights of access, if such rights existed,” continued Gelineau. “However, the State attempted to use its administrative power to extinguish those rights by not allowing the existing driveways to remain on the property to avoid condemning them outright and paying the landowner just compensation.”

The amici brief filed by OCA, COBA and OIA argues that the six concurring Judges of the Court of Appeals erred in their analysis of this case. Amici contend that the concurring opinions incorrectly applied regulatory takings law to a direct eminent domain proceeding resulting in the erroneous decision. The brief argues that Judge Wollheim’s dissent—joined by five other judges—correctly concluded that the common law right of direct access to an adjacent public highway from private property is well settled and a right which cannot be damaged or taken without the payment of just compensation.

“We believe that Judge Wollheim’s dissenting opinion articulates the proper analysis for this case,” said Robert H. Thomas the Hawaii member of OCA, who assisted in connection with the brief. “We urge the Oregon Supreme Court to adopt the reasoning set forth in the dissenting opinion and remand this case to allow a jury to decide upon the amount of just compensation owed to Alderwoods.”

Oregon v. Alderwoods_ Brief – Amicus Curiae – FILED 3-26-2015

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March 20th, 2015 — In News & Events

Amici Brief Supporting California Property Owners in Eminent Domain Case Argues the Sky Will Not Fall if the State Follows Procedures

The Owners’ Counsel of America (OCA) and the National Federation of IndependentBusiness (NFIB) Small Business Legal Center have filed an amici curiae brief in support of Sacramento-San Joaquin Delta property and business owners in Property Reserve, Inc. v. Superior Court, case number S217738. The brief calls upon the California Supreme Court to uphold a Third District Court of Appeal decision which held that the California Department of Water Resources’ (DWR) request to enter private property to undertake geological and environmental activities such as boring holes and installing permanent structures were not the “innocuous” or “superficial” activities permitted under California law. The Court of Appeal concluded that the level of intrusion on private property requested by DWR would be a taking, and that in order to undertake those activities, the DWR must follow eminent domain procedures.

“The Third District Court of Appeal concluded, and we agree, that the government’s eminent domain power must be used ‘in strict conformity to the constitutional protections and procedures that limit its operation’,” explained Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii member of OCA, one of the authors of the OCA-NFIB brief. “In a similar case in 1923, the California Supreme Court held that loyalty to constitutional protections is more important than the government’s ability to operate free of constitutional restraints, and all we’re asking the Court to do in this case is reaffirm that long-standing principle.”

The DWR has proposed a conservation and resource management plan called the Bay Delta Conservation Plan (BDCP). According to its website (https://baydeltaconservationplan.com/), the BDCP includes a multi-million dollar water delivery project planned to divert water from the Sacramento-San Joaquin Delta to the southern regions of the state.

As part of its planning, the DWR requested permission to enter private property under California’s entry statutes (Cal. Civ. Pro. Code § 1245.010 et seq.) before filing suit to take the property by eminent domain. DWR requested permission to perform geological and environmental studies on approximately 240 parcels owned by more than 150 owners. The trial court granted DWR’s request to complete the environmental activities providing DWR deposit with the court an amount of money to compensate for any damages to or interference with the use of the properties.

The court, however, denied DWR’s request to conduct geological testing prior to acquiring the properties through California’s eminent domain procedures. The trial court concluded that the geological activities amounted to a taking or damaging of property and ruled that the entry statutes are unconstitutional if used to authorize DWR’s taking or damaging of private property. It further found that the entry statutes did not comply with article I, section 19, subdivision (a) of the California Constitution (Section 19(a)) – the constitutional provision limiting the use of eminent domain.

Both parties appealed the trial court’s order. In Property Reserve, Inc. v. Superior Court, No. C067758 (Mar. 13, 2014), the Court of Appeal ruled in favor of the property owners finding that the geological activities, which included entering the land, boring holes and installing permanent structures is a taking or damaging of property which requires the State to follow statutory eminent domain procedures. The appellate court also found that DWR’s proposed environmental activities would constitute a temporary taking and cannot be authorized by the entry statutes. DWR sought review by the California Supreme Court.

“Essentially, the appellate court ruled that there is no substitute for eminent domain when there’s been a taking,” said Edward G. Burg, a partner with Manatt, Phelps & Phillips, LLP in Los Angeles and the California member of OCA, who joined Mr. Thomas on the brief. “No matter how small the interest, if the government takes property, it must condemn and pay for it first, and provide all of the protections the eminent domain process has.”

The amici brief filed by the NFIB Small Business Legal Center and OCA argues two points. Amici contend that any significant physical invasion of private property is a taking requiring the payment of just compensation and compliance with eminent domain procedures. The brief disputes the State’s assertions that its adherence to established eminent domain procedures would interfere with its ability to function or to complete this and other projects. Rather, amici argue, at worst complying with eminent domain procedures might be inconvenient for the government, but will not make the project impossible.

“There is no reason to think that this project will grind to a halt should the Court reaffirm the bedrock constitutional principle that the government must condemn and pay just compensation when its invasive activities are of such magnitude that they interfere with an owner’s property rights,” stated Thomas. “The sky will not fall if the California Supreme Court continues to require what the Constitution has always demanded.”

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