Yearly Archives: 2021

Parts of Canada, like the United States, will likely see an increase in property takings due to existing and upcoming public infrastructure projects. This is particularly true in Ontario. Recently, OCA Member, Shane Rayman, with Rayman Beitchman LLP in Toronto was interviewed on the subject for the Canadian Lawyer publication. “Expropriation is happening more and more frequently as more and more public works take place,” Shane Rayman says, pointing to Ontario’s Building Transit Faster Act, which enacted new powers for Metrolinx to acquire land. To read the interview in its entirety, click here. .

Under the inverse condemnation statutes and laws in most states, any authority or body that has the power of eminent domain and that has taken some action resulting in private property being taken, destroyed or damaged may be sued based on a claim of inverse condemnation.  But what if the authority or body (i.e. the party responsible for the taking or damaging) does not actually possess the power of eminent domain? May it still be charged with an inverse condemnation claim? In many states, the courts have said no; the party being accused of the taking must possess the power of eminent domain, either directly or by an act of delegation. However, recently the Pennsylvania Supreme Court ruled differently, finding in Hughes v. UGI Storage Co., No.J-69A-2021 (Nov. 29, 2021) that UGI Storage did not need a prior delegation of eminent domain power to be (potentially) liable for inverse condemnation under Pennsylvania law. To read more about the case, the facts and the basis of this unusal legal holding, click here.

With $1.2 trillion in federal funds getting disbursed across the country as part of the recently approved Infrastructure Investment and Jobs Act, many expect a surge in eminent domain activity as state and local governments advance a host of road, highway, bridge, railway and dam projects. But what about the businesses, companies and individual property owners who will be on the receiving end of all this acquisition activity? What should they be worried about and what can they do to be ready  when the government decides that it needs their property?  If you are an individual or business who may be called upon to support America’s once-in-a-generation investment in its’ public infrastructure with your most valuable asset, your property, read this handy Featured Article on Owners’ Counsel of America’s website entitled “What Does the Federal Public Infrastructure Bill Mean for Property Owners.” There you will find basic and useful advice on how to prepare to meet such a challenge.

OCA Affiliate Member Jonathan Houghton recently announced that he will be leaving the law firm of Goldstein, Rikon, Rikon and Houghton, where he has practiced on behalf of property owners for many years in the areas of eminent domain, inverse condemnation and regulatory takings to work within the Property Rights Group of the Pacific Legal Foundation. In leaving a law firm that has mean a lot to him, Jon said,  “I want to take this opportunity to share my extraordinary appreciation for Mike Rikon. He brought me in all those years ago and his firm has been a home. All of the skills and knowledge that I am taking to PLF came from my time there and I am leaving with a heavy debt of gratitude.” We wish Jon well in his new position and know that he will continue to represent property owners with the same dedication and committment he has always demonstrated.    

Owners’ Counsel of America (OCA) is pleased to announce that Nina Sawaya, a second year law student attending Denver University Sturm College of Law, will be the first recipient of the Toby Prince Brigham OCA Scholarship. Created in 2021 following the passing of OCA’s founder, Toby Prince Brigham, the scholarship is designed to inspire the next generation of lawyers to take up the cause of protecting and defending private property rights, a cause that Mr. Brigham fought for on behalf of countless property owners during the entire 54 years of his eminent domain law practice. The prestigious Toby Prince Brigham OCA Scholarship offers the opportunity, at no expense, for a U.S. law student to meet, learn from, and network with the nation’s leading eminent domain and property rights lawyers through attendance at the pre-eminent property rights conference in the country, now approaching its 40th year. Held annually at different locations, for 2022 the ALI-CLE Eminent Domain and Land Valuation Litigation Conference will take place Jan. 27-29 in Scottsdale, Arizona. The decision to select Nina Sawaya was made by the OCA Board of Directors and Scholarship Committee after extensive outreach to several law schools across the country. Personal recommendations were sought from deans, law professors and others with knowledge of students possessing a genuine interest in private property rights. “In selecting Nina Sawaya,” says OCA Executive Director, “both the Scholarship Committee and Board were impressed with her academic record, proven interest and commitment to private property rights, and her prior work experience in the area of real estate. […]

OCA Honorary Member Michael Berger has authored a new article entitled, “Whither Regulatory Takings.” In it he compares the law that looks to the Fifth Amendment as the guardian against overly stringent government regulation to the everyday legal outcome of most property owners making a regulatory taking claim: recovery denied. As Mr. Berger writes, “For the uninitiated it has become very difficult for a property owner to prevail in a regulatory taking case. Indeed, two commentators likened such litigation to a “high-stakes game of craps.” This statement explains Justice Thomas’s comment that if the Court really does not believe in regulatory takings, it “should say so.” To read Mr. Berger’s outstanding article in its entirety click here. 

Judge Timothy Williams ruled on Tuesday in favor of developer EHB, represented by OCA Member Kermitt Waters, finding that a city’s actions in stalling the developer’s housing plans were tantamount to a taking. In recent years, the Las Vegas City Council either held up or rejected plans to build homes on much of the closed golf course property, leading the developer to claim that such delays and denials were unnecessary and aimed at preserving the private land’s use for the surrounding public. For many years a coalition of residents in the upscale Queensridge neighborhood, which the course weaves through, cited fears of high density and diminishing property values in opposing the developer’s plans.

The United States Court of Federal Claims recently issued an important decison in a Rails to Trails case involving some 59 properties adjacent to a former railroad corridor in Newton County, Georgia. The owners were seeking just compensation under the Fifth Amendment stemming from the imposition of a recreational trail across their properties. The primary issues before the court were the amount of just compensation to be paid for the taking and the appropriate interest rate to apply given the delay between the date of the taking and the date of payment. The decision was filed on August 31, 2021and the case is Gloria Jackson vs. United States in the United States Court of Claims (Nos. 14-397L, 15-194L) The property owners were represented by OCA Member Thor Hearne who has tried many such Rails to Trails cases. Mr. Hearne successfully argued in the case that the just compensation due the property owners must include significant damages to their remaining properties. For more information about the Rails to Trails Act read this handy brochure from OCA’s Featured Articles.

A Baltimore couple are at the center of an eminent domain dispute involving the redeveloment of the Poppleton neighborhood, fighting to preserve their home from being taken along with 500 other homes and lots included in a planned redevelopment being pursued by the city and a New York developer. The Eaddy family has owned their home since 1992 and Sonia Eaddy has spent years working as a community leader and volunteer in the neighborhood.  After a devastating fire in 2012, she rebuilt her home and does not want to leave.  Represented by OCA member Joseph Suntum, the Eaddys are arguing that the developer doesn’t have financing for his plans involving their property, and that though the redevelopment dates back some 15 years, hardly anything tangible has been realized from the efforts thus far, making the demolition of the Eaddy house unnecessary. Although a judge has ruled that the city has the authority to take the property, the Eaddy family has vowed to press on and appeal the matter. To learn more about the background of this case click here to read a recent article in the Washington Post.

When the Altoona/Logan Mobiile Emergency Medical Department Authority (AMED), an entity created by the city of Altoona to condemn property for a powerline to serve a new ambulance station, sought to take Roy Powell’s property, he objected. Represented by OCA Member Mike Faherty, Powell challenged the authority’s eminent domain power as well as the overly broad nature of the taking. On Tuesday, Powell was vindicated, when a three-judge panel of the Commonwealth Court issued a lengthy decision reversing a lower judge’s dismissal of his objections. It ruled that AMED does not have the statutory power to condemn land for the purpose of installing electric transmission lines and also that the description of the property to be condemned for an easement was “inadequate.” OCA Member Faherty said after the ruling that his client was “elated” by the decision. “This is a great victory for Mr. Powell and for property rights,” he added.