News & Events
October 28th, 2016 — In News & Events
Owners’ Counsel Participates in International Property Rights Conference
During a ceremony at The Peace Palace in The Hague on October 21, the 2016 the 2016 Brigham-Kanner Property Rights Prize was awarded to Peruvian economist Hernando de Soto, President of the Institute of Liberty and Democracy. An advocate for the formal recognition of private property ownership as a solution to global poverty, de Soto has been recognized internationally for his work. The Prize was awarded following the conclusion of the 13th Annual Brigham-Kanner International Property Rights Conference in which a number of OCA attorneys participated.
International Property Rights Conference at the World Court and Seat of International Law
The 13th Annual Brigham-Kanner Property Rights Conference took place October 19-21, 2016 in The Hague, The Netherlands. The Conference is sponsored by the William & Mary Law School Property Rights Project and was presented in cooperation with the Grotius Centre for International Legal Studies of Leiden Law School. This is the second time the Conference was hosted outside of the United States. In 2011, the Conference took place in Beijing, China. (Read more about the 2011 Conference here.)
Annually, William & Mary’s Property Rights Project recognizes the outstanding contributions of a single individual to the field of property rights scholarship by awarding the Brigham-Kanner Property Rights Prize during the Conference. Both the Conference and Prize are named in recognition of retired eminent domain and property rights attorneys Toby Prince Brigham and Gideon Kanner for their lifetime contributions to preserving the important role that property ownership plays in protecting individual liberties and civil rights.
Scholarly Discussions on Intellectual Property Rights
During the international three-day symposium, nine Owners’ Counsel lawyers spoke on a number of panels and a variety of topics, including rising seas and property rights, international property rights jurisprudence, protection of cultural and heritage property and intellectual and non-tangible property rights.
Property rights attorney and OCA Hawaii Member, Robert Thomas, and fellow panelists examines the relationship of property to individual liberty and to the political structure of nations. Thomas also participate in a second panel that explored international perspectives relating to property rights and intellectual property and non-material resources.
“Intellectual property and intangible assets are the new frontier of property rights,” explained Thomas. “Property law has traditionally recognized rights in the fruits of one’s physical labor, and we’re seeing seeing this extended to the fruits of creative efforts. The legal recognition of this type of property ownership and the protection of those rights on the international stage is a growing concern in today’s global marketplace.”
An International Debate on Sea Level Rise, Equality and Private Property Rights
Minneapolis-based OCA attorney, Mark Savin, joined a panel that debated issues pertaining to climate change, sea level rise, storm protection and private property rights. “With catastrophic weather events impacting coastal communities in recent years, the discussion of who should bear the cost of public safety measures such as dune restoration, levees and seawall repair is of fundamental importance,” said Savin.
OCA members and eminent domain attorneys, Andrew Brigham of Florida, and Joseph Suntum of Maryland, joined a panel that was tasked with exploring the relation between private property rights, equality and freedom. At the center of their discussion was the question of whether the protection of private property rights becomes a barrier for equality and freedom or whether property rights encourages economic, political and social stability and liberty.
International Property Rights Jurisprudence, Eminent Domain for Private Gain and the Promotion of Global Peace
Mike Rikon, OCA New York representative, and Jill Gelineau, OCA Oregon representative spoke on a panel focused on international property rights jurisprudence. The panelists discussed how the property rights opinions of international courts have strengthened democracy and reduced global conflicts. Panelists also reviewed the role of the International Court of Justice in settling national boundary disputes, the reparations and criminal forfeiture provisions of the International Criminal Court, and the property rights opinions of the European Court of Human Rights.
Missouri OCA member and eminent domain lawyer, Robert Denlow, spoke on a panel tasked with addressing the challenges society faces in recognizing and protecting cultural and historical property during times of peace and unrest. Pacific Legal Foundation attorney and OCA Honorary member James Burling addressed the proper uses of eminent domain and the controversy over the use of eminent domain power for private-sector economic development and other purposes. Joseph Waldo, Virginia condemnation attorney and OCA Honorary member, spoke on a panel discussion centered on the role of property rights in alleviating poverty, combating unrest and promoting the development of market-based economies.
In the years since the Conference awarded the first Brigham-Kanner Property Rights Prize in 2004, it has become an important national event attended by scholars and practitioners interested in property law and theory. The Conference has honored some of the nation’s foremost property law thinkers including Frank I. Michelman, Richard A. Epstein, James W. Ely, Robert C. Ellickson, Richard E. Pipes and Retired Associate Justice of the United States Supreme Court Sandra Day O’Connor. This year’s recipient, Hernando de Soto, is the first international honoree to review the Brigham-Kanner Prize.
August 31st, 2016 — In News & Events
Hawaii Supreme Court Accepts Certiorari in Eminent Domain Case; Owners’ Counsel and NFIB Filed Amici Brief
On August 22, the Supreme Court of Hawaii accepted the Application for Writ of Certiorari filed July 10, 2016 by the landowner in County of Kauai v. Hanalei River Holdings, Ltd., No. SCWC-14-0000828. The Owners’ Counsel of America (OCA) joined with the National Federation of Independent Business (NFIB) Small Business Legal Center to file an amici curiae brief in the case urging the Court to review and overturn the appellate court’s decision.
Background of the Case
This eminent domain case involves three privately owned parcels on Kauai which the County seized for the expansion of a beachfront public park. The court of appeals concluded that Hawaii law requires two parcels to touch in order for a jury to consider them part of a larger parcel. Here, the Petitioner’s property was separated from the other parcel he claimed to use and the two were not physically connected. Petitioner argued that he used the two lots together as a boat yard and that the taking of one parcel damaged his use of the other.
The Landowner’s Application for Review
The Landowner applied to the Supreme Court of Hawaii seeking the court’s review on three questions. (See the Landowner’s Application for Writ of Certiorari here.)
- Must two parcels physically abut in order for the jury to consider whether they are part of a larger parcel?
- Where there are multiple properties being condemned from different owners, does statutory interest on a conditional deposit only accrue after each condemnee establishes an entitlement to its portion of the deposit?
- Does Haw.Rev.Stat. § 101-19 enable a condemnor to withdraw a portion of its estimate of just compensation after deposit with the Court and after taking possession of the property?
The Court has agreed to review all of the questions presented.
OCA & NFIB Amici Brief: The Appellate Court Got it Wrong
The OCA & NFIB brief addresses the first question presented: whether two parcels must physically touch in order for a jury to consider them part of a larger parcel. The brief contends that the court of appeals erred in its analysis of County of Kauai v. Hanalei River Holdings, Ltd., No. CAAP-14-0000828. Amici urge the Hawaii Supreme Court to agree to review the erroneous decision of the court of appeals and overturn it as faulty and contrary to Hawaii law. The OCA-NFIB brief argues that parcels do not need to touch to establish a unified use for property to be considered part of a larger parcel.
“Two parcels do not need to touch in order for an eminent domain jury to consider whether they are components of a larger parent tract,” said Robert H. Thomas, Esq., a Director with Damon Key Leong Kupchak Hastert in Honolulu. Thomas, OCA Hawaii Member, authored the brief on behalf of OCA and NFIB.
“The court of appeals was simply wrong in it’s decision that parcels ‘must touch,'” Thomas explained. “The published opinion is precedential and will have grave consequences for Hawaii property owners in future eminent domain and property rights matters.”
Just Compensation is not One-Size-Fits-All
The determination of just compensation and damages in an eminent domain case is not one-size-fits-all rule, but rather requires the application of legal rules that accommodate the facts specific to each case. The court of appeals decision in the Hanalei case establishes a hardline rule that would force courts to ignore the unique facts of a case.
“We are in the midst of the Honolulu rail, the largest transportation project in Hawaii’s history, and the condemnation of private property will be necessary,” explained Thomas. “The Hawaii Supreme Court must ensure that the law correctly guides lower courts and protects the rights of property owners who are entitled to just compensation—‘the full and perfect equivalent’ of the property taken.”
We will continue to follow this case as the Court will hear oral argument.
Contact a Condemnation Attorney with Owners’ Counsel of America
Owners’ Counsel of America (OCA) is a nationwide network of leading condemnation attorneys dedicated to representing private owners in eminent domain and property rights matters. If a government agency is attempting to take your private property, an OCA attorney in your state can help you protect your legal rights. For more information, please contact us online or call (877) 367-6963.
August 1st, 2016 — In News & Events
Owners’ Counsel Attorneys Chair New National Eminent Domain Seminar
The practice of eminent domain is becoming more and more dependent upon occurrences on the national level. Now more than ever, eminent domain lawyers must be knowledgeable about activity outside their own jurisdictions. Join OCA attorneys from around the country in Las Vegas this September 29 and 30 for a two-day program presented by CLE International focused on helping attorneys to stay informed about the most important developments in eminent domain litigation all across the country.
Panel discussions will include:
- Key Eminent Domain Issues in Highway Projects
- Organized Resistance to the Big Transmission Line Projects
- Valuation Issues in Pipeline Takings
- Partial Takings
- Just Compensation
- Attorney Fees
- Municipal Takings of Private Water Companies
- Special Purpose Properties
- Practical advice on litigation strategy and trial tactics from both lawyers and judges
Program Co-Chairs are Darius Dynkowski of Ackerman, Ackerman & Dynkowski, Bloomfield Hills, Michigan, Kermitt Waters and Autumn Waters of The Law Offices of Kermitt Waters, Las Vegas, Nevada. For a complete schedule and registration information, click here.
June 29th, 2016 — In Articles
OCA Files Amicus Brief In Support of Property Owners in NC “Public Trust Doctrine” Case
Along our country’s shores, a historical legal principle known as the “public trust doctrine” allows members of the public to access the beach beyond either the mean high or low water mark, even where this section of the beach (as well as the land above the water mark) is private property.
This is the law in most states; and, until recently, it was clear that the public trust doctrine did not – and was not intended to –provide local governments the authority to interfere with landowners’ rights in the “dry sand” areas of their private property.
However, a case currently pending in the North Carolina Supreme Court is threatening to change that. In Nies v. Town of Emerald Isle (No. 409PA15), two lower courts have held that private “dry sand” property is also subject to the public trust. This is an unprecedented application of the public trust doctrine, and one that Owners’ Counsel of America (OCA) and property rights advocates around the country are fighting vigorously to have overturned.
The Case of Nies v. Town of Emerald Isle
The case arose after the Town of Emerald Isle, a small town on a barrier island on North Carolina’s Atlantic shore, passed an ordinance in 2010 that created a 20-foot wide “unimpeded Town vehicle lane” on all dry sand areas seaward of the first line of dunes. The “unimpeded” nature of the vehicle lane meant that even the property owners who owned the beachfront land on which the new lane existed could not occupy this portion of their private property.
Then, in 2013 the Town passed another ordinance that allowed members of the public to drive on all privately-owned “dry sand” areas. This effectively turned the Nies’s (and other owners’) private beachfront property into parking lots for the public.
The Nies family sued, alleging that the 2010 and 2013 ordinances amounted to takings without the payment of just compensation (the family had owned their land prior to 2010). The Town fought back, and cited the public trust doctrine as authority for making public use of the family’s land.
Despite the fact that the public trust doctrine had never previously been used in such a fashion – and in fact had only ever been used below the mean high water mark and in North Carolina’s state-owned beach areas – the trial court and the North Carolina Court of Appeals both sided with the Town of Emerald Isle.
OCA’s Amici Brief
On May 23, 2016, Owners’ Counsel of America and professor David L. Callies filed an amici brief urging the North Carolina Supreme Court to reverse the lower courts’ decision. The brief asks the Supreme Court to reconfirm that the public trust doctrine does not extend beyond the mean high water mark, and that any public use of private “dry sand” beach areas thus remains subject to the law of eminent domain. Such an interpretation of the public trust doctrine would be consistent with the doctrine’s application in other states around the country.
You can read OCA’s brief below.
Owners’ Counsel of America | Leading Eminent Domain Attorneys Nationwide
If you would like more information about Nies v. Town of Emerald Isle, or if the government is attempting to take your private property without payment of just compensation, contact Owners’ Counsel of Americaby phone (877) 367-6963 or online. To locate an OCA attorney in your state visit our website here.
June 13th, 2016 — In News & Events
Eminent Domain Attorneys with Owners’ Counsel of America Earn CRE® Designation
The Owners’ Counsel of America wishes to congratulate eminent domain attorneys Joseph P. Suntum of Maryland and William G. Blake of Nebraska who were recently awarded the CRE® designation from the Counselors of Real Estate®. A Counselor of Real Estate (CRE) provides intelligent, unbiased real estate advice that achieves the best results for a client or employer. Joe and Bill join the more than 1,100 CREs worldwide, including 5 other OCA attorney-members (Casey Pipes – Alabama, Jack Sperber – Colorado, Dwight Merriam – Connecticut, Anthony DellaPelle – New Jersey, and Michael Rikon – New York).
Founded in 1953, the Counselors of Real Estate® is the membership organization established exclusively for real estate advisors who provide intelligent, unbiased, and trusted advice for a client or employer. Membership in The Counselors of Real Estate is available on an invitation-only basis after a thorough review process has been conducted. CREs come from a wide array of professional backgrounds – from valuation, consulting, law, brokerage and asset management to development, investment, lending and corporate real estate. They are service providers, owners, capital providers, fiduciaries, academics and public servants. As the most respected real estate specialists in the industry, CREs work on the most complex and important projects, effectively run real estate businesses, and are known for innovation and creative problem solving.
A former Assistant Public Defender for Montgomery County, Joseph Suntum has achieved significant success over the last 20 years representing property owners throughout Maryland and the District of Columbia in eminent domain and land valuation litigation. Decades of trial experience coupled with an intimate knowledge of the law of eminent domain and the science of real property valuation, have equipped him to vigorously defend his clients’ private property rights and secure just compensation in condemnation proceedings.
Over more than 35 years of practice, William Blake has amassed a wealth of experience in eminent domain, real estate and commercial disputes litigating cases across Nebraska. He is frequently invited to speak, locally and nationally, on issues relating to the condemnation of real property and private property rights and is recognized for his many written works regarding the law of eminent domain. Mr. Blake is the Editor of “The Law of Eminent Domain”, First Chair Press, (2012) published for the American Bar Association and is the author of “Just Condemnation in Nebraska: a Manual for Owners.”
OCA congratulates both Joe Suntum and Bill Blake on their numerous professional achievements and on their recent CRE® designation.
May 3rd, 2016 — In News & Events
California Supreme Court Hears Oral Argument Today in Important Eminent Domain Case
Beginning at 9:00 AM (Pacfic) today, the California Supreme Court will live-stream oral arguments in an important eminent domain and property rights case, Property Reserve, Inc. v. Superior Court, case number S217738. This is the case in which the Third District Court of Appeal held that a request made by the California Department of Water Resources (DWR) 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’s “entry statute.” (See our previous post here.)
The Court of Appeal found 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. OCA together with the the National Federation of IndependentBusiness (NFIB) Small Business Legal Center filed an amici curiae brief in support of Sacramento-San Joaquin Delta property and business owners who objected to the DWR’s proposed testing and pre-condemnation activities. (The OCA-NFIB brief is linked below.)
OCA agrees with the conclusion made by the appellate court – that the government’s eminent domain power must be used “in strict conformity to the constitutional protections and procedures that limit its operation.” The amici brief filed by NFIB and OCA argues two points:
- That any significant physical invasion of private property is a taking requiring the payment of just compensation and compliance with eminent domain procedures; and
- That adherence to established eminent domain procedures would not interfere with the State’s ability to function or to complete this and other projects. At worst complying with eminent domain procedures might be inconvenient for the government, but would not make this or other projects impossible.
OCA will be watching the outcome of this case as the Court’s decision here may have nationwide impacts.
April 29th, 2016 — In News & Events
OCA Members Anthony DellaPelle & Edward McKirdy Honored Among Top 100 New Jersey Super Lawyers for 2016
Owners’ Counsel of America wishes to congratulate OCA Members Anthony F. DellaPelle and Edward D. McKirdy, partners with McKirdy & Riskin, PA, on the honor of being included in the Top 100 2016 New Jersey Super Lawyers, a distinction both have earned annually since 2009. Anthony DellaPelle is the New Jersey member of Owners’ Counsel of America (OCA) and serves on OCA’s Board of Directors. Edward McKirdy is an Emeritus Member of OCA, having represented the State of New Jersey for over a decade in OCA’s nationwide eminent domain lawyer network.
Both DellaPelle and McKirdy have dedicated their practice to representing property owners in eminent domain and related real estate valuation litigation. Since 1967, McKirdy & Riskin, has focused on helping New Jersey property owners—large corporations, family-owned businesses and individuals—in eminent domain, redevelopment, property tax and other real estate valuation matters.
Super Lawyers Top 100 list highlights the 100 attorneys in a state who obtained the highest point totals in a given year throughout the Super Lawyers nomination process. Super Lawyers rates attorneys from more than 70 practice areas, including eminent domain lawyers, who have attained a high degree of peer recognition and professional achievement. More about the Super Lawyers selection process is available here.
Read more in our news release here.
April 12th, 2016 — In News & Events
Eminent Domain Film, Battle For Brooklyn, to be Screened at Jacksonville Documentary Film Festival
“Nobody’s gonna remember how long it took. They’re only gonna look and see that it was done.”
– New York Mayor Michael Bloomberg, on the use of eminent domain to build the Barclays Center sports arena and mixed-use development in Brooklyn
While attending an eminent domain CLE In 2011, we previewed a “rough cut” of a documentary film chronicling the story of Brooklyn property owner, Daniel Goldstein, and his neighbors as they struggled to save their homes, businesses and community in the heart of Brooklyn from being taken by eminent domain for the Atlantic Yards Project, a massive real estate development project including 16 skyscrapers and a basketball arena for the New Jersey Nets. This award winning film, Battle for Brooklyn, made the Academy Awards Shortlist for Best Documentary in 2012 and will be screened at the Jacksonville Documentary Film Festival, Sunday, April 17, 2016 at 1:00 PM at Sun-Ray Cinema.
About the Film BATTLE for BROOKLYN
“Battle for Brooklyn” is a close-range look at a community’s seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. The film is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community
The film follows Daniel Goldstein, a property owner turned activist, whose apartment sits at what would be center court of the new arena. He is dragged into the fight because he simply can not believe that the government should use the power of eminent domain to take his property and hand it off to a private developer. He and others form a community activist group to develop alternative plans to the proposal and to expose misconceptions about the project in the media. Going up against the largest publicly traded real estate developer in the U.S., a mayor, and Russian oligarch, he wages an all out battle to stop the project and takes his case to the State’s highest court of law.
But until Battle For Brooklyn, there’s never been an attempt to chronicle the massive scope of an eminent domain story — the film takes place over seven years, itself an accomplishment — and with such intimacy. For although the film is framed by the opposition to the Atlantic Yards project, its heart is a character study of Daniel Goldstein, the property owner who became the opposition leader, and who by the film’s end remains the sole “holdout” among his 130 neighbors.
And that’s where Battle For Brooklyn excels. It allows us to witness Mr. Goldstein’s evolution from a bewildered property owner to sophisticated spokesman and property rights activist. In the era of reality television we have become accustomed to often-too-revealing and all-too-polished looks into the personal lives of others. Yet, Battle For Brooklyn feels different.
Michael Rikon, OCA New York Attorney-Member, represented Mr. Goldstein in the eminent domain and just compensation proceedings. Rikon shared his thoughts about the film with us in 2011. “The Battle for Brooklyn is a very important film because it graphically shows how disenfranchised property owners are when confronted with condemnation…This is the best narrative of eminent domain abuse ever made. It is a must for any one seriously interested in Urban Planning.”
If you are in the Jacksonville area this Sunday, we highly recommend getting tickets to the screening and Q&A to follow with “Battle for Brooklyn” film makers, Michael Gallinsky and Suki Hawley. Check out the other great films that will be screened during the Festival here.
April 7th, 2016 — In News & Events
2016 Brigham-Kanner Property Rights Conference to be Held at The Hague; Hernando de Soto to Receive Brigham-Kanner Property Rights Prize
The William & Mary Property Rights Project recently announced that Peruvian economist Hernando de Soto, president of the Institute for Liberty and Democracy (ILD), will receive the 2016 Brigham-Kanner Property Rights Prize at the 13th annual Brigham-Kanner Property Rights conference October 2016. The Property Rights Project also announced its cooperation with the Grotius Centre for International Legal Studies of Leiden Law School and plans to host this years event in The Hague. Hernando de Soto has been recognized across the globe for his work along side his colleagues at the ILD think tank in designing and implementing legal reform programs to empower the poor in Africa, Asia, Latin America, the Middle East, and former Soviet nations by granting people access to the same property and business rights, as well as the institutions and tools needed to exercise those rights and freedoms, that the majority of people in developed countries have. He is the recipient of numerous awards including The Milton Friedman Prize, The Templeton Freedom Prize, the Bradley Prize, and The Economist Magazine’s Innovation Award. Time magazine selected de Soto as one of the five leading Latin American innovators of the century in the May 1999 issue “Leaders for the New Millennium”, and included him among the 100 most influential people in the world in 2004.
Mr. de Soto is the author of The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (Basic Books, 2000), The Other Path: The Economic Answer to Terrorism (Basic Books, 2002), which includes a new updated preface, “The Other Path after Ten Years,” and Swiss Human Rights Book Volume 1: Realizing Property Rights (2006), co-authored with Francis Cheneval. De Soto’s ideas have been written and discussed by economists, humanitarians, politicians and legal scholars. He has been featured in The World’s 12 Most Important Economists (Die zwölf wichtigsten Ökonomen der Welt, 2007).
The Property Rights Conference and Prize have been named in honor of Toby Prince Brigham and Gideon Kanner for their lifelong contributions to protecting private property rights. Recipients of the prize include legal scholars, practitioners or jurists whose work affirms the fundamental importance of property rights to individual liberty.
Past Property Rights Prize recipients include former U.S. Supreme Court Justice Sandra Day O’Connor (2011); Richard E. Pipes, Baird Professor of History, Emeritus, at Harvard University (2009); James W. Ely, Jr. is Milton R. Underwood Professor of Law, Emeritus, and Professor of History, Emeritus, at Vanderbilt University (2006); Richard A. Epstein, Tisch Professor at New York University Law School (2005); Frank I. Michelman, Walmsley University Professor, Emeritus, at Harvard University (2004); and Michael M. Berger, Mannatt, Phelps & Phillips and Honorary OCA Member (2014).
The Hague will be the second international venue that has hosted the Property Rights Conference. In 2011, the Conference was co-sponsored and hosted at Tsinghua University School of Law in Beijing, China.
March 22nd, 2016 — In News & Events
OCA Condemnation Lawyer Michael Rikon Earns Prestigious CRE® Designation
The Owners’ Counsel of America is pleased to announce that Manhattan eminent domain lawyer Michael Rikon, the New York representative to OCA, recently received a CRE® designation from the Counselors of Real Estate®. Mr. Rikon, a partner at Manhattan-based Goldstein, Rikon, Rikon & Houghton, P.C, has practiced law in New York since his admission to the Bar in 1969. Of the more than 1,100 CREs worldwide, Mike is one of the approximately 50 who are practicing attorneys.
Mike Rikon entered private practice in 1980 and has since focused his practice on representing private property owners in eminent domain and real estate matters across New York state. Goldstein, Rikon, Rikon & Houghton, P.C limits its practice to eminent domain and condemnation law assisting landowners throughout the state of New York.
Mike frequently lectures on topics related to eminent domain, just compensation and property rights. His articles on condemnation and real property law are published in the New York Law Journal, Practical Real Estate Lawyer and other legal and scholarly journals. He also regularly contributes to his firm’s blog “Bulldozers at Your Doorstep.” More about Mike’s professional experience is available on his OCA profile page and at www.grrhpc.com.
Founded in 1953, the Counselors of Real Estate® is the membership organization established exclusively for real estate advisors who provide intelligent, unbiased, and trusted advice for a client or employer. Membership in The Counselors of Real Estate is on an invitation-only basis after a thorough review process. CREs come from a wide array of professional backgrounds-from valuation, consulting, law, brokerage and asset management to development, investment, lending and corporate real estate. They are service providers, owners, capital providers, fiduciaries, academics and public servants.
OCA congratulates Mike Rikon on his many professional achievements and recent designation as a CRE®.