News & Events
February 17th, 2021 — In News & Events
Condemnor’s Quick Take Powers Require That Owner Receive Preliminary Compensation Offer
A recent Supreme Court decision out of Massachusetts illustrates the need to make sure a property owner receives what is deemed preliminary compensation (referred to in the opinion as the “pro tanto payment”) when a condemnor exercises its quick take powers to acquire and take control of an owner’s property before the condemnation action is completed and before the final determination of just compensation has been made. Indeed, the court rules that the preliminary payment must be extended to the property owner even if the owner is contesting the eminent domain case and seeking to have the property returned. In Abuzahra v. City of Cambridge, the City refused to make the preliminary offer of compensation (an amount of $3.7 million) available to the owner Abuzahra because of questions regarding the state of title. However, even after the title issue had been resolved and Abuzahra established he was the rightful recipient of the funds, the City continued to refuse to pay him because he was challenging the taking. To read the opinion in full click here. To understand the concept of “quick take” also called “immediate possession,” refer to OCA’s Dictionary of Key Terms.
February 9th, 2021 — In News & Events
New Jersey Eminent Domain Case Involving PennEast Pipeline Heading to U.S. Supreme Court
The U.S. Supreme Court announced on Feb. 3rd that it would hear the appeal on an eminent domain case involving PennEast Pipeline Co.’s efforts to build a 120-mile, 36-in. natural gas pipeline across open space and public lands preserved by the State of New Jersey for recreation, conservation and agriculture purposes. The Federal Energy Regulatory Commission (FERC) approved the project in January 2018. However, the 3rd U.S. Circuit Court of Appeals ruled in 2019 that PennEast could not use federal eminent domain to seize the land. The court held that condemning public lands violates the 11th Amendment which gives sovereign immunity to states, shielding them from private lawsuits.
February 5th, 2021 — In News & Events
Federal Government Drops Several Eminent Domain Claims in South Texas For the Border Wall
The U.S. Attorney’s Office has dropped its legal efforts to immediately take possession of at least three tracts of land in South Texas that had been earmarked for stretches of the border wall, citing President Joe Biden’s plan to pause construction projects. Ryan Patrick, U.S. Attorney for the Southern District of Texas, said in the court filings the executive order Biden signed on his first day in office on Jan. 20 essentially made going forward with the land condemnations moot, at least for now. Efforts to quit other condemnations could be coming soon, court documents indicated. For more information about these actions read here.
February 4th, 2021 — In News & Events
Couple Files Fifth Amendment Lawsuit in Boulder Colorado Over Mineral Moratorium
A couple who own mineral rights within the City of Boulder, Colorado are now suing the city over its oil and gas moratorium on the basis that it violates the Fifth Amendment’s rule against taking private property without just compensation. The couple, John and Valorie Wells, are being represented by the Public Trust Institute. The moratorium originates from an ordinance enacted in June 2013 that prohibits the city manager and staff from accepting or processing any application for oil and gas exploration permits on open space properties. For more information about this case, read this article recently published in Boulder’s Daily Camera.
January 2nd, 2021 — In News & Events
Register Now for the ALI-CLE Eminent Domain and Land Valuation Litigation Conference
Registration is now open for the biggest and best eminent domain and land valuation conference that has taken place annually for nearly 40 years. Given the pandemic it will be held virtually for the first time on January 28th and 29th. For more information about this event and to register click here.
December 31st, 2020 — In News & Events
New Oregon Complaint Alleges Eviction Moratorium Extension Is a Taking
In a complaint filed last week in the U.S. District Court for the District of Oregon against Oregon’s governor (in her official capacity), the City of Portland, and Multnomah County, Plaintiffs assert that “several provisions of law, including state statutes, executive orders, and municipal ordinances” amount to a per se taking of Plaintiffs’ property. More specifically, Plaintiffs alledge that the combination of these measures significantly impairs Plaintiffs’ rental contracts, thereby requiring that just compensation be paid. Visit OCA member Robert Thomas’ Inverse Condemnation Blog for more details about this recent filing and the case itself.
December 18th, 2020 — In News & Events
Hawaii: State Takings Are “Self-Executing” Constitutional Violations (Not Torts Or Breaches Of Contract), Subject To A Six-Year Statute Of Limitations
In DW Aina Lea Dev., LLC v. State of Hawaii Land Use Comm’n, No. SCCQ-19-156 (Dec. 17, 2020), the unanimous Hawaii Supreme Court held that the statute of limitations governing a regulatory takings claim under the Hawaii Constitution’s “takings or damagings” clause is six years. The case started out in a Hawaii state court, and was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim for missing the limitations cut-off. Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question before Hawaii’s highest court was what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. For more about the case read OCA member Robert Thomas’ Inverse Condemnation Blog. To read the opinion itself, click here.
December 11th, 2020 — In News & Events
Virginia Supreme Court Rules No Taking in Oystermen Case
In an opinion just released by the Virginia Supreme Court involving OCA members Joshua Baker and Joe Waldo titled Johnson v. City of Suffolk, the court ruled that Virginia oystermen did not present a viable takings claim to obtain compensation when the City of Suffolk and its Sanitation District dumped raw sewage into the Nansemond river and declared a “condemnation zone” (i.e., no oyster harvesting). Specifically, the court concluded that the leases of Commonwealth-owned bottomlands in the Nansemond River did not confer a property interest worthy of constitutional protection. We are obviously disappointed in this ruling and await word as to whether the defendants intend to appeal. For more about the case and the opinion, read Robert Thomas’ Inverse Condemnation Blog.
December 10th, 2020 — In News & Events
Dwight Merriam Chosen By Connect Real Estate News As One of Only 50 Lawyers for 2020 Award
In recognizing Dwight Merriam for its first annual New England Trailblazers publication last year, Connecticut Law Tribune called the four-decade legal veteran “a major figure in American planning law.” Based in Weatogue, CT, Merriam represents land owners, developers, governments, and individuals in land use matters. The Connecticut Law Tribune says Merriam is “one of just a handful of nationally-recognized true planner-lawyers, fully credentialed in both professions.” It was Merriam’s desire to advocate for individual rights that drew him away from pursuing a career in planning to one in the law during his formative years, according to the Tribune.
Merriam is a Fellow and Past President of the American Institute of Certified Planners; a former Director of the American Planning Association; a former chair of APA’s Planning and Law Division; a former chair of the American Bar Association’s national Section of State and Local Government Law; the Connecticut member of Owners’ Counsel of America; a former Fellow of the Royal Institute of Chartered Surveyors; a Fellow of the American Bar Foundation; a member of the Rocky Mountain Land Use Institute National Advisory Board; a Fellow of the Connecticut Bar Foundation; a Counselor of Real Estate; a member of the AARPI, and a Fellow of the American College of Real Estate Lawyers.
Merriam has taught land use law at the University of Memphis, the University of Bridgeport, Vermont Law School, the University of Connecticut School of Law, and the Quinnipiac University School of Law. Merriam has published more than 200 articles and 13 books. He is lead author of the leading casebook in his field, Planning and Control of Land Development, and co-editor of the leading treatise in the field, Rathkopf’s The Law of Zoning and Planning 4th.
October 30th, 2020 — In News & Events
Announcing OCA and PLF Joint Webinar on Shutdowns, Closures, Moratoria, and Bans
Since the beginning of the pandemic we have seen Governors and State Legislatures across the country implement an array of policies in an attempt to contain the virus and its socioeconomic impacts. Many of these policies effectively broadened the scope of government power while placing a heavy burden on property owners and businesses already struggling during the COVID 19 pandemic. Jim Burling from Pacific Legal Foundation and Robert Thomas from Owners’ Counsel of America will explore these COVID related policies and legal challenges. Topics to be covered include:
- The constitutional implications of emergency orders restricting property and business owners
- The rights and legal status of property and business owners impacted by emergency orders
- Past, current and upcoming litigation challenging emergency orders