Category: OCA Blog
October 28th, 2020 — In Articles
Mike Rikon and Jon Houghton Discuss A Recent New York Case Addressing the Practice of Advance Payments and Sandbagging
In an article published in the New York Law Journal Owners’ Counsel of America Members Mike Rikon and Jon Houghon discuss the recent decision in Staten Island Land Corp and how it seeks to address the problem of advance payments and sandbagging in the State of New York. As they explain in the article, under New York’s quick take statute, the government can take title to property which it seeks to condemn by making an advance payment based on the government’s ‘highest approved appraisal’ before the final determination of just compensation has been made, which payment can subsequently be used by the owner to purchase replacement property. However, what happens if the condemning authority tenders a second (and much lower) appraisal at trial (a tactic called sandbagging) that results in a final just compensation determination well below the advanced payment? In such situations, the landowner can be forced to repay the deficiency amount, something that is difficult to do if the owner has already reinvested the money in replacement property. Read here on how the Staten Island case seeks to remedy this obvious injustice.
October 14th, 2020 — In Articles
Nailing Down Knick and Governmental Takings in Louisiana by OCA Member Randall A. Smith
Owners’ Counsel of America member Randall Smith writes in a new article published in the October/November issue of the Louisiana Bar Journal about the unique interplay between Louisiana’s expropriation laws and the U.S. Supreme Court’s recent landmark decision in the Knick case. The article focuses on what Knick may mean for Covid-19 claims against local governments in the wake of mass shutdowns and other regulatory measures that are currently impacting businesses and property interests, both in Louisiana and nationwide. The article also highlights a case currently before the 5th Circuit involving enforcement of a $28,764,685 just compensation and interest judgment against Bernard Port that Randall Smith obtained for his client Violet Dock Port, as a result of the taking of its’ port facility in 2010. To read the Bar Journal article in full click here.
October 8th, 2020 — In News & Events
Podcast Episode 54 – The Emotions of An Eminent Domain Case with Stephen Clarke
OCA Affiliate Member, Stephen Clarke of the law firm of Waldo & Lyle in Norfolk Virginia recently joined Clint Schumacher on his Eminent Domain podcast to share a story about the reaction of his clients to the cancellation of the Atlantic Coast Pipeline project. On a lighter note, Stephen also introduces Clint to the board game “Settlers of Catan.” To listen to the podcast, click here. Clint’s Podcast can also be found on iTunes and Stitcher.
October 6th, 2020 — In News & Events
OCA Crystal Eagle Award Winner and Law Professor David Callies Authors Book on Landmark Knick Case
The Supreme Court’s recent decision in Knick v. Township of Scott has been aptly described as one of the most influential property rights cases of the last decade. In Knick, the Court explicitly overturned the second prong of the so-called Williamson County ripeness test that required property owners to seek a remedy through state action –usually just compensation – for the alleged taking before coming to federal court. In David Callies new book, published by the American Bar Association, entitled “Regulatory Takings after Knick: Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes,” he provides a summary of takings law in general and discusses in detail total takings and the exceptions which permit governments to so strictly regulate property as to permit no economically beneficial use. Legal scholars from across the country already have commented on the importance of Mr. Callies’s work. Professor Henry Smith of Harvard Law School called it “a lucid and insightful guide through the labyrinth of the caselaw on categorical takings,” and Steven J. Eagle, of the Antonin Scalia Law School at George Mason University, noted that the new book “sets forth federal and state law respecting the tension between private property rights and government regulation in a way useful to both general readers and specialists.” David Callies is a professor of law at the University of Hawaii Law School and a former recipient of the prestigious Crystal Eagle Award from Owners’ Counsel of America.
September 24th, 2020 — In News & Events
Joseph Waldo Continues Fight For Oystermen in Income Loss from Latest Dump of Raw Sewage into Nansemond River
To follow up on a story we ran earlier regarding OCA’s Amicus Brief filing in the case of the City of Suffolk’s operation of a sewage and stormwater system so as to discharge wastewater into the Nansemond River, we learn that after recent rains an estimated 1.5 million gallons of raw sewage has been dumped in the river. “They are discharging and allowing raw sewage to be discharged into the rivers that we swim in…” says attorney Joe Waldo (seen in the photo) who represents several oystermen currently suffering huge losses due to the situation. Robert Johnson, who owns one of the businesses impacted, estimates he has 750 acres of oyster beds that can’t be harvested right now, and that is costing him $2,000 to $3,000 a day. “We are totally shut down. Ninety percent of our oysters are in the Nansemond River which is the best growing ground in this area.”
September 17th, 2020 — In OCA Blog
OCA’s Missouri Member Paul Henry Represents Property Owner in Taking for $190M Development Project
The St. Louis County Circuit Court recently approved University City’s request to condemn seven commercial properties within the footprint of Novus Development’s nearly $190 million project. Novus’ plans to use the site at Olive and Interstate I-70 to develop a mix of retail anchored by a Costco store, apartments, offices and potentially a hotel. Last year, the City approved $70.5 million in tax increment financing for the project. OCA Missouri Member, Paul Henry represents SSC Acquisitions, which entity owns one of the four properties impacted by the project. For more information about the project please click here.
September 17th, 2020 — In OCA Blog
7th Circuit Rules Construction of the Obama Presidential Center Is Not A Taking Under The Fifth Amendment
OCA’s Affiliate Member Michael Ryan covers in his firm’s blog the recent Seventh Circuit Court of Appeals decision in Protect Our Parks, Inc. v Chicago Park District, 2020 WL 4915631, affirming a grant of summary judgment in favor of the government on a Fifth Amendment takings claim. Protect Our Parks, Inc. and several individual Chicago residents had sued the City of Chicago and the Chicago Park District in federal court to halt the construction of the Obama Presidential Center in Chicago’s Jackson Park by its sponsor, the Barack Obama Foundation. Plaintiffs argued several legal theories, one of which was a claim arising under federal law that, by altering the use of Jackson Park and handing over control to the Barack Obama Foundation, the defendants took the plaintiffs’ property interest for a private purpose in violation of the Takings Clause of the Fifth Amendment. In ruling against the plaintiffs on the merits, the Seventh Circuit found that the plaintiffs failed to prove they have a private property interest in Jackson Park that is protected by the United States Constitution. The case is also covered in OCA Member Robert Thomas’ Inverse Condemnation Blog which you can read here.
September 17th, 2020 — In News & Events
Missouri’s Grain Belt Express HVDC Transmission Line Project (Easements and Eminent Domain)
Submitted by OCA Missouri Member Paul Henry
Despite many ups and downs and much opposition from Missouri property owners, a proposed electric transmission line necessitating the acquisition of 206 miles of easements is still in the works to cross Northern Missouri. The massive transmission line was designed by Clean Line partners to deliver wind-generated energy from Kansas to the Illinois and Indiana border. The propose line is unique in the amount of energy it will carry – 600 kilovolts to deliver 4,000 mega-watts of power – and the type of electrical current – direct current. The project was initiated by an investment group known as Clean Line Energy Partners, but it was recently acquired by Invenergy, LLC based in Chicago, Illinois. The process for approval of the Project has a long history that is only summarized below:
- July 2015 – Rejected by Missouri Public Service Commission as not being in the public interest.
- August 2017 – Rejected by Missouri Public Service Commission for failure to obtain assent by counties.
- July 2018 – Missouri Supreme Court reverses Missouri PSC rejection.
- March 2019 – Approved by Missouri Public Service Commission
- December 2019 – Court of Appeals rejects landowner challenge to PSC approval.
- July 2020 – Court of Appeals rejects landowner challenge of transfer of project from Clean Line Partners to Invenergy, LLC
The state approval process for the Missouri portion appears to be completed. However, many hurdles remain. Invenergy still must obtain county approvals and the project does not have approval from Illinois, after an earlier approval was rejected by the courts on procedural grounds. In Kansas, the project was approved, but subject to Illinois approval.
Currently, Invenergy is seeking easements from Missouri landowners in the form of “options,” whereby the company will pay 20% of its offer up front and 80% at the actual time of construction. The offers also include promises to pay additional sums based on the number of transmission line structures and in the event of any lost crops. Publicly, Invenergy seeks to gain support for its project by announcing that it will include broadband data for rural areas and result in lower rates for Missouri electric consumers.
By operation of Missouri statutes, Invenergy possess the authority to exercise eminent domain authority to acquire easements that it is unable to obtain through negotiations with property owners. Efforts in the Missouri Legislature to strip it of its eminent domain authority failed during the 2019 and 2020 legislative sessions. In both years, legislation successfully passed in the House but failed to get approval from the Senate.
If you are an impacted property owner or simply want more information about this project, you can find OCA Member Paul Henry’s contact information here.