Tag: just compensation
OCA Member Dwight Merriam: Emergency Declaration Could Blow up President Trump’s wall
Posted on Mar 1, 2019 in News & Events
The idiom “hoist with his own petard” is sometimes misconstrued to mean hoisted up. Not so. A petard was a medieval explosive device. To be hoisted with one’s own petard is to be blown up with your own bomb. President Trump is doing precisely that with an emergency declaration to build his wall due to the legal and practical impossibility of acquiring the property rights necessary to build a wall along the Southern border. The history on this issue began in 2006 when President George W. Bush initiated a border fence project. The Secure Fence Act of 2006 authorized and partially funded 700 miles of border fence. When he signed the bill into law, President Bush said, “This bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform.” Acquiring more than 1,000 separate properties in 2006 through voluntary negotiation and the draconian power of eminent domain proved difficult. There were 334 eminent domain cases filed in South Texas, and 60 to 70 cases are still being fought in court a dozen years later. Aside from the practical impossibility of assembling all the property for Trump’s wall and the hundreds or thousands of expensive lawsuits over compensation that would take decades to resolve, the real cost of such an effort is in social justice and equity. The Texas Civil Rights Project has stepped up to protect the rights of individuals with few resources and little practical experience in defending […]
Hawaii Supreme Court Accepts Certiorari in Eminent Domain Case; Owners’ Counsel and NFIB Filed Amici Brief
Posted on Aug 31, 2016 in News & Events
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.
Two Judges Approve Use of Eminent Domain for New Jersey Dunes
Posted on Apr 25, 2016 in Articles
As we have previously discussed, beachfront property owners in New Jersey are currently in a battle with the state’s Department of Environmental Protection over the department’s efforts to condemn portions of their property for a beach-widening and dune-building project along the New Jersey shore. While the Department of Environmental Protection asserts that the project is necessary to protect the shore from future storms similar to 2012’s Hurricane Sandy, the property owners counter that there are better alternatives available. They also assert – among other arguments – that the Department of Environmental Protection has refused to offer just compensation for its exercise of eminent domain.
Understanding the Tax Consequences of Condemnation
Posted on Mar 28, 2016 in Articles
When a government agency or other entity with the power of eminent domain acquires or condemns private property, the private owner is entitled to “just compensation” for the value of the property taken. This compensation – or at least the majority of it – is essentially paid as the purchase price for the condemned property. Eminent domain involves the transfer of real estate title in exchange for the payment of compensation which the Internal Revenue Code (the “Code”) generally treats as an ordinary taxable sale of property.
I Received a Condemnation Notice. What are My Rights?
Posted on Mar 3, 2016 in Articles
If you received a condemnation notice or a notice that your property may be needed for a public project, it means that a federal, state or local government authority is seeking to acquire your property (or an interest in your property) using the power of eminent domain. Eminent domain is the power granted to the government and governmental agencies to seize private property for public use. This power is not absolute and as a property owner, you have a number of important legal rights. However, protecting these rights can be a challenge.
Virginia Property Rights Attorney Jeremy Hopkins Joins OCA
Posted on Feb 29, 2016 in News & Events
OCA is pleased to welcome eminent domain and property rights lawyer Jeremy P. Hopkins as the Virginia member of OCA’s nationwide network of eminent domain attorneys. Mr. Hopkins succeeds his partner, Joseph T. Waldo, who was a founding member of OCA and who has been named as an Emeritus Member of the association. OCA is grateful to Joe Waldo for his years of dedication and commitment to OCA and to defending property owners. We look forward to continuing to work together with Joe and Jeremy in Virginia and across the United States to protect and preserve private property rights.
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.
Rails-to-Trails Takings: Property Owners’ Rights When Land Use Changes
Posted on Jan 28, 2016 in Articles
In 1983, Congress enacted the federal National Trails System Act Amendment (known as the “Rails-to-Trails Act”) in order to preserve abandoned railroad rights of way by converting them into public recreational trails. Trails established under the Rails-to-Trails Act can range from walking and biking trails to green spaces for public use, such as the New York City High Line which was the subject of a recent takings case in the U.S. Court of Appeals for the Federal Circuit and a blog post.
The Government’s Offer Isn’t Always “Just” Compensation
Posted on Jan 21, 2016 in Articles
In order to exercise the power of eminent domain, government agencies are required – by the Fifth Amendment to the U.S. Constitution – to pay just compensation to the affected property owners. We discussed the Constitutional “just compensation” requirement in a previous post, which also highlighted some state laws that provide for additional compensation to individuals and businesses when private property is condemned by the government.
Can Eminent Domain Be Used to Acquire Natural Gas and Water Rights?
Posted on Jan 4, 2016 in Articles
In most eminent domain cases, property owners are fighting to protect their land from condemnation. Whether for a public park, road, hospital, or utility, the government most often uses its power of eminent domain to obtain the right to build on private property. But, what if the government isn’t seeking to take your property, but rather the resources beneath it? This presents an important question for landowners in resource-rich states like California, Montana, Pennsylvania, West Virginia, and others. Recently, cases and proposed statutes affecting private property owners’ natural gas and water rights have brought this issue to the forefront.