Yearly Archives: 2021

The Supreme Court is currently entertaining an interesting property rights case entitled Cedar Point Nursery v. Hassid. Cedar Point Nursery together with Fowler Packing Company are California fruit growers that employ around 3,000 Californians. In 2015, the United Farm Workers (UFW) sent union organizers to Cedar Point’s workplace during harvest time to encourage them to unionize. Under California’s Union Access Regulation the organizers are granted an easement that allows them to enter a business’s private property three hours a day. The businesses are asking the U.S. Supreme Court to invalidate this regulation and affirm that government can’t allow unions on private property without paying compensation for a property taking. Cedar Point is being represented by the Pacific Legal Foundation. For more information about the case and the arguments being made check out OCA Member Robert Thomas’ Inverse Condemnation Blog.

Michael Rikon, OCA’s New York Member and a Partner of Goldstein, Rikon, Rikon & Houghton, P.C., was recently inducted into the exclusive Hall of Fame for 2021 by the International Association of Top Professionals (IAOTP). These special honorees are distinguished based on longevity in their fields of practice, as well as their overall contributions to society. Mr. Rikon is being recognized for this honor based on over 50 years in the legal industry. Mr. Rikon was previously honored at IAOTP’s 2019 Annual Award Gala as Top Attorney of the Year and will again be honored at IAOTP’s 2021 Annual Award Gala at the end of this year.  To view Mr. Rikon’s OCA bio and profile, click here. We congratulate Michael on this wonderful honor and deserving recognition.

A few days ago the U.S. Supreme Court in this order declined to issue a writ of certiorari to review the Ninth Circuit’s decision in Bridge Aina Lea, LLC v. Hawaii Land Use Comm’n, No. 20-54, a case in which a federal court jury concluded the property owner suffered both a Lucas and Penn Central taking, but the Ninth Circuit reversed, concluding that no reasonable jury could have found a taking. This is a missed opportunity for our highest court to provide much needed guidance in an area of the law that desperately needs clarity. One positive outcome from the court’s dodge is the dissenting opinion from Justice Thomas, in which he writes that “it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.” Murr v. Wisconsin, 582 U.S. ___, ___ (2017) (dissenting opinion) (slip op., at 1). For a fuller discussion of the case, court and dissenting opinion, please read OCA Member Robert Thomas’ Inverse Condemnation Blog.

Many people would assume that if a police department or swat team completely destroyed someone’s private residence during an operation to apprehend a fleeing suspect, particularly when that suspect did not have an ownership interest in the residence, the government would be responsible and liable for the destruction under the Fifth Amendment “takings clause” of the United States Constitution. But in two recent court decisions, one from Colorado decided in 2019 entitled Lech vs. Johnson and one from South Dakota decided on February 10, 2021  entitled Hamen v. Hamlin County,  Hamen v. Hamlin County, the courts reached a different conclusion. In each, the court ruled that such exercises of the government’s police power cannot constitute a taking of private property warranting the payment to just compensation. In Colorado, the fleeing suspect (who was being chased for shoplifting at a Walmart store) had no ownership or other interest in the home he took refuge in; in other words the owners were innocent bystanders. In the South Dakota case, the police were under the impression that the suspect in a series of crimes was holed up in his parent’s mobile home. He was not and the police did not assert that his parents had any involvement in his criminal activities. For more background about each of these cases, read Robert Thomas’ Inverse Condemnation Blog discussion by clicking here.

A recent Supreme Court  decision out of Massachusetts illustrates the need to make sure a property owner receives what is deemed preliminary compensation (referred to in the opinion as the “pro tanto payment”) when a condemnor exercises its quick take powers to acquire and take control of an owner’s property before the condemnation action is completed and before the final determination of just compensation has been made. Indeed, the court rules that the preliminary payment must be extended to the property owner even if the owner is contesting the eminent domain case and seeking to have the property returned. In Abuzahra v. City of Cambridge, the City refused to make the preliminary offer of compensation (an amount of $3.7 million) available to the owner Abuzahra because of questions regarding the state of title. However, even after the title issue had been resolved and Abuzahra established he was the rightful recipient of the funds, the City continued to refuse to pay him because he was challenging the taking. To read the opinion in full click here. To understand the concept of “quick take” also called “immediate possession,” refer to OCA’s Dictionary of Key Terms.

OCA’s New York  member Michael Rikon writes in his Bulldozers at Your DoorStep Blog about the hazards and risks associated with a condemnor seeking to acquire a golf course or lands associated with a golf facility by eminent domain main. “Not so fast,” Mike advises. Before deciding that such actions are a good idea, the condemnor might wish to critically analyze the concept of highest and best use. To learn more about this concept and the part it plays in assessing a parcel’s development potential and resulting fair market value, read Mike’s article here. You might also wish to check out OCA’s Featured article entitled, “A Landowner’s Guide to Understanding the Concept of Highest and Best Use.” 

The U.S. Supreme Court announced on Feb. 3rd that it would hear the appeal on an eminent domain case involving PennEast Pipeline Co.’s efforts to build a 120-mile, 36-in. natural gas pipeline across open space and public lands preserved by the State of New Jersey for recreation, conservation and agriculture purposes. The Federal Energy Regulatory Commission (FERC) approved the project in January 2018. However, the 3rd U.S. Circuit Court of Appeals ruled in 2019 that PennEast could not use federal eminent domain to seize the land. The court held that condemning public lands violates the 11th Amendment which gives sovereign immunity to states, shielding them from private lawsuits.

The U.S. Attorney’s Office has dropped its legal efforts to immediately take possession of at least three tracts of land in South Texas that had been earmarked for stretches of the border wall, citing President Joe Biden’s plan to pause construction projects. Ryan Patrick, U.S. Attorney for the Southern District of Texas, said in the court filings the executive order Biden signed on his first day in office on Jan. 20 essentially made going forward with the land condemnations moot, at least for now. Efforts to quit other condemnations could be coming soon, court documents indicated. For more information about these actions read here.

A couple who own mineral rights within the City of Boulder, Colorado are now suing the city over its oil and gas moratorium on the basis that it violates the Fifth Amendment’s rule against taking private property without just compensation. The couple, John and Valorie Wells, are being represented by the Public Trust Institute. The moratorium originates from an ordinance enacted in June 2013 that prohibits the city manager and staff from accepting or processing any application for oil and gas exploration permits on open space properties. For more information about this case, read this article recently published in Boulder’s Daily Camera.

OCA’s New Jersey member and property rights attorney Anthony DellaPelle with the law firm of McKirdy Riskin Olson and Dellapelle out of Morris Township was recently elected as the new Board chairman of the Great Swamp Watershed Association.  First formed in 1981 as a grassroots organization the Association has grown to serve over 2,200 members in some 40 municipalities within New Jersey. The principle mission of GSWA is to preserve and protect the water and natural areas under its purview. Five streams in the watershed form the Passaic River, which provides potable water for over a million New Jersey residents. “My main objective while serving as Chair is to have GSWA continue its essential work in protecting the watershed,” DellaPelle stated. “I want to increase awareness of the importance of our goals and efforts not only within the Great Swamp region and headwaters, but also in the downstream areas of the Passaic River as a result of the recent expansion of our mission to extend our geographic reach.”