Yearly Archives: 2021

Texas Gov. Greg Abbott recently announced state plans to build a border wall where the Trump administration left off. During his campaign and presidency, former President Donald Trump promised the construction of a wall along the border between the southern United States and Mexico. That construction was halted when President Joe Biden took office in 2021. Recently, Texas OCA Member Charles McFarland was asked to weigh in on Govenor Abbott’s plans. He stated that there are several logistical challenges to this plan, including the fact that much of the needed land is privately-owned. “Some property owners will likely sue the federal government over its use of eminent domain.”  Click here to read the full exchange.                                        

The U.S. Supreme Court ruled today in Cedar Point v. Hassid  that California’s “access regulation” law allowing union organizers to enter agricultural property for a certain amount of time without the owner’s consent, constitutes a per se  physical taking. In 2015, union activists entered Cedar Point Nursery seeking to encourage farm workers who worked there to join the United Farm Workers union. But the farm owner, Mike Fahner, didn’t give the union permission to come onto his property and wasn’t even made aware they were coming. Worse yet, Fahner wasn’t legally allowed to tell them to leave because of a California law allowing union activists to invade private property to recruit new members. Fahner and other California farmers challenged California’s law in court and their case made it all the way to the U.S. Supreme Court. Click here to read the opinion in its entirety.

The Bayou Bridge Pipeline company must pay owners their attorneys fees after they prevailed in obtaining compensation awards based on the company commencing  work on their lands before getting legal permission, the Louisiana Supreme Court recently ruled. The seven justices agreed that Louisiana’s 1974 Constitution allows attorneys’ fees and litigation costs as part of the just compensation to landowners who win eminent domain proceedings. The company had argued that it was not subject to payment of the owners’ attorney fees under state statutes, but the Supreme Court determined that the constitutional provision made them liable. Click here to read the court’s opinion.

OCA member, Stephen Clarke’s representation of owners James and Kathy Chandler, resulted in a jury verdict of $430,000 against the Mountain Valley Pipeline’s taking of their “slice of heaven” atop Bent Mountain. The pipeline company had previously offered them $89,343 for their property. After a trial on value, the jury agreed with the property owner that the construction of the 42-inch diameter natural gas pipeline would cause damages to the their 111-acre property by bisecting it and passing about 500 feet from their custom-built home. Commenting on the verdict, Stephen Clarke stated that “There’s a huge gap that cuts through the heart of their land, 125 feet wide and half a mile long.” In testifying before the jury, owner James Chandler told them that even though the pipeline would be buried, it will always be “a visual reminder. Nothing will be normal.” Stephen Clark is with the law firm of Waldo & Lyle.

A San Bernardino Superior Court judge ruled recently against the Town of Apple Valley in its attempt to take over its largest supplier of water, Liberty Utilities. The water provider is represented by OCA member, Ed Burg who practices out of Los Angeles with the law firm of Manatt, Phelps & Phillips.  In a preliminary ruling issued after an extensive bench trial, Judge Donald Alvarez found that Liberty Utilities had “disproved” the town’s arguments that its acquisition of the company’s water system would be in the public’s interest and a necessity. The ruling comes after a lengthy effort by Apple Valley to acquire the water system that has been ongoing since 2011. The town filed its eminent domain lawsuit in January 2016 when the system was owned by Ranchos Water Company. A copy of the Judge’s ruling can be view on the Town’s website. 

OCA’s New York Member Mike Rikon’s recent blog posts takes on some of the tricky issues that have surfaced in valuing property during a pandemic. According to Mike, Covid-19’s impact on real estate valuations have made it difficult to apply the comparable sales approach, one of the often used methods for determining real estate values, particularly in eminent domain cases. Referring to statements made by real estate professionals like Lisa Loychik of Cohen & Co., the article suggests that it is debatable whether pre-Covid-19 sales can be considered comparable with post-pandemic sales. Thus, many valuators are looking beyond comparable sales and considering individual circumstances on a more granular level.  This approach acknowledges that generalities are of limited value when Covid-19 may have different effects on different properties in the same neighborhood. To learn more about this issue, you an read Mike’s article in its entirety here.

Nearly every week OCA receives one or more phone calls from concerned property owners relating to flooding or other water related events causing significant damage to their property. With climate change and global warming placing ever increasing burdens on our aging public infrastructure, these complaints are likely to continue and even increase. Indeed, OCA member  Randall Smith (whose practice in lowlying Louisiana places him at the forefront of this issue) recently won a lawsuit against the City of Mandeville over a municipal drainage project’s impact on land owned by Hilda Maestri Landry. Randall’s lawsuit alleged that the project altered the natural flow of the Ravine Au Coquilles, also known as No Name Bayou, so that it overflowed its natural banks to impact the Landry property. In the court’s judgement recognizing the legitimacy the claim, instead of awarding damages, the court ordered the city to dig out part of the ravine, place backfill, and install pipes to correct the problem. The court also directed the city to do the work with oversight by the owner’s expert and to pay all costs incurred by the landowner. If you are experiencing a floodng event that you believe is the result of government actions, reach out to an OCA member or read this helpful article on OCA’s website, entitled,“My Property is Being Flooded–Is That a Taking That I Can Be Compensated For Under the Constitution?” 

We are disappointed in the recent decision by the Wisconsin Supreme Court upholding a pre-condemnation jurisdictional offer made by the Wisconsin Department of Transportation (DOT) to a property owner that deviated substantially from the Department’s own appraisal which, under Wisconsin law, is required to form the basis of the offer. As three Supreme Court Justices (including the Chief Justice) correctly pointed out in their strong dissent, the jurisdictional offer was not based upon the appraisal that DOT had provided the owner, but rather on DOT’s own internal administrative review. An important factor in the case was the difference between DOT’s appraisal of $133,400 and the jurisdictional offer of $403,200, resulting in a 202% increase in value. OCA filed an Amicus Brief in this important case which can be viewed here. 

Mark your calendars for the next ALI-CLE Eminent Domain and Land Valuation Litigation Conference to be held in Scottsdale, Arizona at the Scottsdale Resort at McCormick Ranch. The conference dates are January 27-29, 2022. Exploring a full range of cutting-edge issues and drawing professionals from across the country, this annual conference is always “the place to be” for all eminent domain and land use practitioners looking to learn from recognized and experienced professionals representing the diverse stakeholders in these cases.

In the recent case entitled Cass County Joint Water Resource District, v. Cash H. Aaland, Larry W. Bakko and Penny Cirks, the North Dakota Supreme Court rules in the property owners favor on the issue of whether a Water District had the authority to enter upon the owner’s property prior to filing a condemnation case, as part of a flood diversion project.  In this unique factual situation, the Water District had previously been granted access to the owner’s property for sixteen and one-half months under a North Dakota right-of-entry statute to conduct examinations, surveys and mapping. However, after its initial right-of-entry had expired, it sought to extend the right by negotiating with the property owner for easements to install permanent survey monuments in order to conduct geomorphic examinations. When those negotiations failed, instead of seeking to condemn the easements, it sought an extension of its previous occupancy of owner’s property, using the same right-of-entry statute, for an additional nineteen months, bringing the total occupancy period to thirty-five and one-half months. In ruling that the right-of-entry statute did not authorize such an expanded and more invasive use of owner’s property, the North Dakota Supreme Court reversed a lower court decision allowing the entry to occur. The case is helpful in terms of its discussion of other state cases addressing pre-condemnation right-of-entry issues.