Yearly Archives: 2015

While state and federal government agencies have the power of eminent domain – to take private property for public use – that power is not unlimited.  Eminent domain power is limited by the Fifth and Fourteenth Amendments to the U.S. Constitution and by individual state constitutions and laws.  If the government seeks to take your property, there are potential defenses an eminent domain attorney may employ to challenge the taking.  While certain defenses challenge the condemnation outright, others focus on ensuring that you receive just compensation for the taking of your property. In this article, we provide a brief overview of four of the most common defenses to condemnation:

As we previously discussed, Owners’ Counsel of America (OCA) and the National Federation of Independent Business Small Business Legal Center (NFIB) have asked the U.S. Supreme Court to review an important property rights case decided by the California Supreme Court earlier this year. If not overturned, the case, California Building Industry Association v. San Jose, No. 15-330 (September 16, 2015), could set a damaging precedent that allows California agencies to impair the value of private property without paying the property owners just compensation.

When the government takes a private citizen’s land through the exercise of eminent domain, it is obligated to pay the landowner “just compensation” for the property taken. This requirement is established by the Fifth Amendment to the U.S. Constitution and the constitutions in all 50 states, and it serves to protect the fundamental rights of landowners across America. But, this begs the question: What is just compensation? How is it calculated, and who gets to decide?

Eminent domain attorneys, appraisers, engineers and other professionals in the field of eminent domain, property rights and land valuation litigation will gather this January to discuss the hot topics, newest cases and emerging issues impacting eminent domain law and those who practice in this area.  The 33rd Annual American Law Institute Eminent Domain and Land Valuation Litigation course is scheduled to take place January 28-30 at the Hotel Van Zandt in Austin, Texas.

When a government agency, utility, energy company or other entity takes private property through eminent domain (known as “condemnation”), the landowner is entitled to the payment of just compensation. This right to just compensation is firmly established in the Fifth Amendment to the U.S Constitution, as well as state constitutions and laws across the country. But, what does it mean for compensation to be “just,” and who decides what is a just amount? Someone has to place a value on the land taken.  And, when the “taking” involves an easement or regulation, the property owner’s losses may not be strictly tied to the value of the affected property.

In October, a group of New Jersey beachfront homeowners brought suit against the New Jersey Department of Environmental Protection (DEP) seeking to prevent the agency’s use of eminent domain. Represented by eminent domain lawyer and OCA New Jersey representative Anthony DellaPelle, the property owners argue that the DEP’s plan to construct protective sand dunes on their properties would prevent them from taking their own precautions to avoid damage to their homes and land.

When most people think about eminent domain and the condemnation of private property, they imagine the government acquiring a citizen’s private property and converting it to a public use. While this is often the case, it is not the only way that the government can acquire private property. Governments may claim “non-possessory” rights in private land. Such rights allow the government to either (i) use, or (ii) place restrictions on a landowner’s use of private property.

We have talked a lot recently about the ongoing debate and eminent domain issues involving TransCanada’s proposed Keystone XL Pipeline across the western United States. But, this is by no means the only pipeline activity going on in the country. In fact, up and down the East Coast, property owners – many of whom are represented by our eminent domain lawyers – are battling to protect their land against a number of different pipeline projects.

In a case that has garnered national attention, the North Carolina Supreme Court has agreed to review a court of appeals decision holding that a state statute effected a taking – and thereby implicated the property owners’ Constitutional rights. It is an interesting case — one that could have significant implications for property owners across the country.

Last week, OCA and the National Federation of Independent Business (NFIB) Small Business Legal Center filed an amici curiae brief with the United States Supreme Court urging the protection of private property rights from overreaching government regulation. The brief requests the Court agree to review the California Supreme Court’s decision in California Building Industry Association v. San Jose, No. 15-330 (September 16, 2015).