Tag: inverse condemnation
Amicus Brief: State Takings Claims Are Constitutional (Not Torts) in Applying Applicable Statute of Limitations
Posted on Aug 8, 2019 in News & Events
OCA has asked leave to file an Amicus Brief in the case of DW Aina Lea Development vs. State of Hawaii Land Use, currently before the Hawaii Supreme Court. The Brief, authored by OCA Member Robert Thomas, can be read in full here. The question presented before the Hawaii Supreme Court is the applicable statute of limitations for regulatory takings claims under the Hawaii Constitution’s “takings or damagings” clause. The case started out in a Hawaii state court, was removed to the U.S. District Court by the State Land Use Commission. The district court dismissed the state takings claim under the statute of limitations. Hawaii has not adopted a statute of limitations expressly for takings or inverse condemnation claims. Thus, the question is what is the closest analogue claim. If there isn’t one, Hawaii has a “catch all” statute (six years) for civil claims. When the case reached the Ninth Circuit, that court certified the state law question limitations to the Hawaii Supreme Court. Our OCA brief argues that the closest analogue to a regulatory takings or inverse condemnation case is adverse possession (which is the majority rule, nationwide). And, we also argue that the tort statute of limitations (2 years) is not applicable because a takings claim does not seek recovery for “damage or injury to . . . property.”
Owners’ Counsel of America Files Brief in Inverse Condemnation Case before U.S. Supreme Court
Posted on Nov 23, 2016 in Articles
The Owners’ Counsel of America (OCA) has joined together with other property rights advocates to file an amici curiae brief with the United States Supreme Court in an inverse condemnation case concerning the rails-to-trails conversion of an elevated rail line in New York to a public parkway.
Battle on the Beach: Owners’ Counsel of America Files Amicus Brief in Important Property Rights Case
Posted on Oct 5, 2016 in Articles
Recently, the Owners’ Counsel of America filed an amicus brief in a property rights case currently pending in the North Carolina Supreme Court. The case, Nies v. Town of Emerald Isle, No. COA15-169 (N.C. App. Nov. 17, 2015), concerns the ownership and right to use the “dry sand” beach. OCA joined with Hawaii Law Professor David Callies as amici on the brief.
North Carolina Supreme Court Holds Map Act Unconstitutional
Posted on Jul 14, 2016 in Articles
In an important victory for property owners, the North Carolina Supreme Court recently held that key provisions of the state’s Map Act are unconstitutional. As a result of the Court’s ruling June 10, 2016, affected property owners will be entitled to just compensation for the state’s regulatory taking of their properties. Additionally, landowners throughout the state may seek just compensation in the event that the North Carolina Department of Transportation (NCDOT) prevents them from improving their land in order to reserve property for future roadway development projects.
Dictionary of Key Terms
Posted on Jun 30, 2016 in Articles
Below are general definitions of key terms that are often used in eminent domain and other taking cases. Please note that the precise definition of any of the following terms may differ depending upon the state or jurisdiction applicable to the relevant matter. Additional Information on Eminent domain Our website is full of resources for individuals and businesses threatened with the loss of their private property rights. For more information on the law of eminent domain and inverse condemnation, you can read: Calculating Just Compensation Eminent Domain vs. Inverse Condemnation: What’s the Difference? Property Owners’ Frequently Asked Questions about Eminent Domain Understanding Your Rights in Inverse Condemnation and Regulatory Takings Cases When Can Property Owners Challenge Eminent Domain? Can I Afford to Hire an Eminent Domain Attorney? Speak With an Eminent Domain Lawyer at Owners’ Counsel of America Owners’ Counsel of America (OCA) is a network of leading eminent domain lawyers throughout the United States. If the government is attempting to take your property, we encourage you to contact an OCA lawyer in your state for a free consultation. Locate your OCA lawyer online or call us at (877) 367-6963 to connect with an eminent domain lawyer today.
California Court Rules that Obstructing a Private View Does Not Amount to Inverse Condemnation
Posted on Jun 7, 2016 in Articles
A recent case out of the California Court of Appeal illustrates two important aspects of the law of inverse condemnation in The Golden State. Inverse condemnation involves the government appropriating private property rights without adhering to the Constitutional and legal requirements for the exercise of eminent domain (including payment of just compensation). You can read more about the differences between eminent domain (also referred to as “condemnation”) and inverse condemnation here.
Property Owners Entitled to Just Compensation for Intentional Flooding of Their Land
Posted on Apr 18, 2016 in Articles
In some inverse condemnation cases (in which the government takes private property without properly exercising its power of eminent domain), the taking involves some sort of constructive use, such as the building of a road, sidewalk, utility infrastructure or park. These uses are most often intended to be permanent – and whether the taking involves a transfer of ownership or establishment of an easement or right-of-way, the private landowner loses some or all of his or her property rights for good. But, what happens when the government comes onto private property, temporarily floods it, and then leaves? Does this constitute a taking requiring payment of just compensation? The U.S. Supreme Court thought so 2012, and a California appellate court recently agreed.
The Government is on My Property. What are My Rights?
Posted on Apr 11, 2016 in Articles
As a United States citizen, the U.S. Constitution, federal laws and the Constitution and laws of your state protect you against government intrusion upon your private property. While the Fifth Amendment to the U.S. Constitution establishes that government authorities may use the power of eminent domain to take private property, the Fifth Amendment limits the power of eminent domain by requiring that the taking of private property be for a public purpose and that just compensation is paid to the property owner. Additionally, condemning agencies must follow specific procedures or steps when exercising the power of eminent domain. While these procedures vary from state to state, there are some basic steps which we discussed in a previous post here (discussing the differences between eminent domain and inverse condemnation). What if the government simply takes your property? While this may sound far-fetched, if it has happened to you, you know all too well that government agencies do not always play by the rules. In this situation, private property owners can defend their rights through a type of legal action known as “inverse condemnation.”
Eminent Domain vs. Inverse Condemnation: What’s the Difference?
Posted on Mar 22, 2016 in Articles
Owners’ Counsel of America member-attorneys are dedicated to assisting private property owners defend their property rights when those rights are threatened by government intrusion or overreach. We realize that many of terms we discuss here and the concepts involved in eminent domain law are complex and can be confusing. To shed some light on this “dark corner of the law” we have answered some of the frequently asked questions landowners may have relating to eminent domain and the condemnation process here and here. In this article, we discuss the differences between eminent domain and inverse condemnation. Eminent Domain vs. Inverse Condemnation Eminent Domain There are two types of government acquisition or “taking” of private property. One form of property acquisition includes the government’s exercise of its eminent domain power to force the sale of private property for a public project or use. Eminent Domain – also referred to as “condemnation” – is the power of local, state or federal government agencies to take private property for public use provided the owner is paid just compensation. Sometimes, private corporations such as oil and gas companies, railroads or redevelopment authorities may be granted eminent domain power to construct projects providing a benefit to the public. The use of eminent domain power to take property is referred to by many terms and varies from state to state as well as internationally. The acquisition may be referred to as a “condemnation” or “direct condemnation,” “expropriation,” “appropriation” or simply a “direct taking.” In a direct condemnation or direct taking scenario, the government agency or other entity using the power […]
Can Prohibiting Demolition Constitute a Taking?
Posted on Feb 1, 2016 in Articles
While it is clearly a taking when the government institutes condemnation proceedings to acquire private property and demolish any improvements upon the land, it’s much less clear that the government has taken an owner’s property rights when it tries to prohibit demolition on the owner’s private property. This issue arose in a recent case decided by Ohio’s First District Court of Appeals on December 30, 2015. The short answer: In some cases, prohibiting demolition can constitute a taking of private property under the Fifth Amendment.