Yearly Archives: 2019

American Law Institute Continuing Legal Education (ALI CLE) has announced that Eminent Domain and Land Valuation Litigation 2020 will be held on January 23-25, 2020 in Nashville, TN. The only CLE event for eminent domain practitioners with a national focus and reach, this conference features new topics, customizable content, and valuable networking opportunities, all in the heart of Music City. Many OCA members will be in attendance, both as faculty members and attendees. Don’t miss this opportunity to learn about developing issues in eminent domain, inverse condemnation and regulatory takings. Practice area experts will be coming from across the country to represent the diverse stakeholders in these disputes, including land owners and government agencies and other condemning bodies. Judges, appraisers, consultants, and law professors will round out the prestigious group of over 60 speakers sharing their knowledge and experience with attendees.

A New Jersey homeowner has been awarded $380,000 for the taking of part of his property for a storm protection project after being offered $750 for the same property by the State. In a trial that ended Thursday, Kevin Klingert was awarded the money for the loss of about half his oceanfront property in Brick Township. OCA Member attorney Anthony Della Pelle says about 75 similar cases remain pending in Ocean County from homeowners challenging compensation offered by the state. “They took approximately half the property to build a 22-foot dune, but the property had existing dunes, created by the owner, that were 19 and a half feet high already,” Della Pelle said.

Many will recall the infamous Map Act that was adopted in North Carolina during the 1990’s. As a result the North Carolina Department of Transporation (NCDOT) recorded corridor maps that restricted the use of property in the path of several future road projects similar to negative easements. Although the North Carolina General Assembly repealed the maps in 2016, the North Carolina Supreme Court ruled that these restrictions amounted to takings by inverse condemnation. NCDOT is now initiating actions to physically take some of the properties to build roads and highways. The legal issue now presented is how to value these properties in determining just compensation after they have been impacted by the Map Act for years?  OCA’s  recently filed Amicus Brief (which you can read here) seeks to assist the North Carolina Supreme Court in addressing this issue to ensure that all impacted landowners receive proper just compensation.

In his Condemnation and Tax Certiorari column, OCA New York Member Michael Rikon discusses partial acquisitions in condemnation cases and writes: “Within the area of consequential damages, we must explore, not only the loss in value suered by the remaining property, but the possible benefits to that remainder which are the result of the improvement for which the part taken was acquired. To further complicate things, the question arises, do we consider special benefits to the remainder as distinguished from general benefits? Read more here.

The Nebraska Supreme Court has affirmed the decision of the Nebraska Public Service Commission’s (PSC) to approve a route through Nebraska for the XL Pipeline, completing one of the final steps before construction of the controversial project can begin. A copy of the full decision can be read here. The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska. First announced in 2008, it has remained the focus of controversy and litigation for eleven years. During that time, the project underwent two route changes through Nebraska, after acquisition of a majority of the needed corridor easements had already occurred. Several condemnation actions were dismissed as premature, until a final route was approved. In 2017 the PSC, an administrative regulatory body with the power to determine whether a major oil pipeline route is in the public interest, approved a route. Transcanada had requested approval of its second proposed route, but that route met with substantial opposition. In November, 2017, the PSC approved a different route, closely paralleling the route of Transcanada’s earlier Keystone pipeline. A number of farmers and ranchers along the approved route, joined by several native American tribes and environmental groups, appealed the PSC’s decision to the Nebraska Supreme Court. Although the appeal was thought to be placed on the fast track, over a year and a half later, the Nebraska Supreme Court finally entered its unanimous ruling. Rejecting the appellants’ various arguments, the court held that the question of whether a […]

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.”

On Friday, July 26th from 2:00 p.m. to 2:30 p.m. ET the Land Use Committee of the ABA’s Section of State and Local Government Law is sponsoring a free (for Section members) informal webinar about the latest in takings law:Knick Picking Regulatory Takings: Did the Court Right a Wrong, or Wrong a Right? OCA presenters Dwight Merriam (featured to the left) and Robert Thomas (featured below) will discuss reaction to the decision — which has been as divided as the Court. Was this the conservative justices having their way? Is it a right versus left issue? Did that baby, stare decisis, get thrown out with the old ripeness bathwater? Will the federal courts become a forum resembling a small town zoning board of appeals, buried in trivial cases to the detriment of more important issues on the docke In this fast-paced half-hour, the presenters will ripen the ripeness problem for you, poke about the entrails of the decision to conjure up its true meaning, offer up a doyens’ debate on other pundits’ prognostications, and preview the in-depth program which will be held at the upcoming ABA Annual Meeting in San Francisco (Thursday, August 8, 2019). For more details about the webinar, read Robert Thomas’ Inverse Condemnation Blog here. Knick v. Township of Scott(June 21, 2019) overruled the 34-year-old precedent in Williamson County requiring that federal takings claimants seek compensation in state court before being allowed to proceed in federal court.  

On June 21, 2019, the U.S. Supreme Court, in a 5-4 majority opinion written by Chief Justice John Roberts “restor[ed] takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights.”Knick v. Township of Scott, 139 S. Ct. 2162 (2019). The Fifth Amendment’s “nor shall private property be taken without just compensation” is the clause Chief Justice Roberts references and is the bedrock protection afforded private property in the Bill of Rights, ensuring that full, fair, and just compensation is paid when a taking occurs. If rights guaranteed landowners in the Bill of Rights had so eroded that restorative action, and not merely interpretative, was necessary, there ought to be little dispute at the highest court. To the four justices who dissented, however, the Knick decision “smashes a hundred-plus years of legal rulings to smithereens.” Knick, 139 S. Ct. at 2183 (Kagan, J., dissenting). What could possibly have caused such a hot dispute in the fairly tepid world of eminent domain? Read on.

By OCA Members Gideon Kanner and Michael Berger IF THE DUKE OF YORK’S MEN THOUGHT they were being made to perform useless, repetitive tasks to no worthwhile end, they were in about the same condition as the American lawyers who were practicing tak- ings law in the 1970s and 1980s. During that period of time, hordes of lawyers representing the competing sides in regulatory taking cases were sent, figuratively, charging up the hill to the Supreme Court (which, to make the analogy complete, sits on top of Capitol Hill in Washington, D.C.) in an effort to do intellectual battle over the issue of remedies in regulatory taking cases. That issue was whether such takings call for constitutionally mandated “just compensation” as specified in the Fifth Amendment, or only for judicial invalidation of the constitutionally overreaching regulation. Read on.

OCA Member Robert Thomas seeks to alert all property owners in his recent posting on the impact of the U.S. Supreme Court’s recent landmark decision in Knick v. Township of Scott: Heads up, property owners: last week the U.S. Supreme Court issued a landmark ruling changing the way property rights lawsuits have been handled for the last thirty years. In Knick v. Township of Scott, the Court allowed property owners who sue to enforce their federal right to compensation because a municipal government has taken their property in violation of the U.S. Constitution’s Fifth Amendment by overregulating its use, to bring the lawsuit in federal court. You might reasonably ask: how could it be that since 1985, property owners who alleged a federalconstitutional violation were barred from suing in federal court? Well, the lawyers in our firm’s Land Use Practice Group who represent property owners in these type of cases had long asked the very same question. The details of why the Supreme Court—in the case Williamson County Regional Planning Commission v. Hamilton Bank (1985)—had barred federal takings plaintiffs from federal court are not terribly important, and it is sufficient to understand that until Knick, these kind of claims had to be raised exclusively in state court. No other federal constitutional right was subject to this requirement, only federal property rights. Williamson County assigned to state judges and state courts the exclusive responsibility for enforcing the federal constitutional right to own and use private property. In Knick, the Supreme Court revisited theWilliamson […]