Tag: eminent domain/condemnation

Posted on Feb 11, 2022 in OCA Blog

The North Carolina Department of Transportation will pay $2.9 million to a landowner after its road-widening operation required it to take part of a three-acre tract of land in Caldwell County that had previously had an unobstructed view into the Grandfather Mountain Gorge, OCA North Carolina member George Autry reports. NCDOT had initially contended that the plot, owned by the Arbuckle family, was unsuitable for development altogether. But after expert engineers proved this to be untrue, NCDOT acknowledged that damages would be caused. George Autry was joined by OCA Members Stephanie Autry and Jeremy Hopkins in representing the Arbuckles. The family contended that the property was worth more than three-and-a-quarter million dollars. NCDOT had initially offered only $432,950. An additional issue increasing the potential recovery in the matter was the especially long period over which it had dragged out in court. The parties had been in dispute since 2011. “There was well over $1.5 million in interest that was at stake,” Hopkins said. 

Posted on Feb 11, 2022 in OCA Blog

An historic station that was built as the Pennsylvania Railroad’s Conshohocken Station circa 1890 is now the subject of a taking by the Borough of Conshohocken for alleged park purposes.  Although passenger service at the Outbound Station ceased in 1962, after the property was purchased by Joe and Barb Collins and lovingly restored, it was used for nearly 30 years as an antique store, and more recently, leased to the Couch Tomato Cafe. OCA Emeritus Member Michael Faherty recently wrote an open letter to the Borough challenging their right to take the property by eminent domain on several grounds, including a failure to identify a specific use for the property.  “Instead of listing an identified, researched and needed public purpose,” Mr. Faherty states in his letter, “the proposed ordinance only listed multiple possible, future public purposes as…including, but not necessarily limited to, public open spaces, parks, recreation, and public parking. Such a vague assertion of potential public purpose fails to adequately state the purpose as required 26 Pa. C.S.A.(b)(4).”

Posted on Feb 8, 2022 in OCA Blog

In Cheshire Hunt v. United States, the Court of Federal Claims ruled recently in favor of landowners who held property abutting an abandoned railway that was subsequently converted into a public recreational rail-trail called the Legacy Trail. The property owners were represented by OCA Member, Thor Hearne. As part of the rail-trail conversion, Sarasota County had demanded that the owners remove fences and other structures from the one-hundred-foot-wide rail-trail corridor, even though those structures had existed for decades with the County’s and the railroad’s permission, and even though the structures had not interfered with the railroad’s operations. In the newly issued decision, the court held that the federal government was responsible for paying for the cost of removing these structures under a given set of criteria. Thor Hearne has successfully represented many property owners in these rails to trails conversions and is considered an expert in the area. For more information and background about this case, visit the True North Law Firm website.   

Posted on Nov 18, 2019 in News & Events

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.

Posted on Aug 23, 2019 in News & Events

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 […]

Posted on Aug 8, 2019 in News & Events

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.”

Posted on Jun 28, 2019 in News & Events

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 […]

Posted on Mar 1, 2019 in News & Events

The idiom “hoist with his own petard” is sometimes misconstrued to mean hoisted up. Not so. A petard was a medieval explosive device. To be hoisted with one’s own petard is to be blown up with your own bomb. President Trump is doing precisely that with an emergency declaration to build his wall due to the legal and practical impossibility of acquiring the property rights necessary to build a wall along the Southern border. The history on this issue began in 2006 when President George W. Bush initiated a border fence project. The Secure Fence Act of 2006 authorized and partially funded 700 miles of border fence. When he signed the bill into law, President Bush said, “This bill will help protect the American people. This bill will make our borders more secure. It is an important step toward immigration reform.” Acquiring more than 1,000 separate properties in 2006 through voluntary negotiation and the draconian power of eminent domain proved difficult. There were 334 eminent domain cases filed in South Texas, and 60 to 70 cases are still being fought in court a dozen years later. Aside from the practical impossibility of assembling all the property for Trump’s wall and the hundreds or thousands of expensive lawsuits over compensation that would take decades to resolve, the real cost of such an effort is in social justice and equity. The Texas Civil Rights Project has stepped up to protect the rights of individuals with few resources and little practical experience in […]

Posted on Feb 22, 2019 in News & Events

OCA Member Dana Berliner and the Institute for Justice received a great victory for the Birnbaum family recently in CRDA v. Birnbaum. A New Jersey appellate court ruled that the state’s Casino Reinvestment Development Authority (CRDA) could not use eminent domain for the purpose of seizing private property in order to “bank” it for a possible future use. The appellate court upheld the trial court’s 2016 decision concluding that there cannot be a public use unless CRDA can provide “evidence-based assurances that” it will use the land for a project that “would proceed in the reasonably foreseeable future.” Since it could not do so, the case was dismissed. In the case, CRDA sought to condemn the Birnbaum’s private home even though “[a]t the time of the [trial court] decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the Project area.” Nevertheless, CRDA claimed that “it is statutorily entitled to bank land for future public use, without any temporal limitation.”

Posted on Feb 10, 2019 in News & Events

Owners’ Counsel of America has elected three accomplished eminent domain attorneys to serve on its Board of Directors for 2019. They are Hertha Lund with Lund Law, PLLC in Bozeman, Montana; Casey Pipes with Helming Leach Law Firm in Mobile, Alabama; and Joseph Suntum with Miller, Miller & Canby in Rockville, Maryland. Hertha Lund represents landowners in matters involving eminent domain, property rights, water rights, and wind energy development across the State of Montana. Hertha has argued numerous cases before the Ninth Circuit and the Federal Circuit Court of Appeals, various Federal Circuit Courts, and the District Courts in Montana. She also served as Law Clerk to Chief Judge Loren A. Smith at the U.S. Court of Federal Claims. While in law school, Hertha served as Co-Editor-In-Chief of the Montana Law Review. And at Montana State University, she studied Animal Science, Range Management, and Pre-Veterinary Medicine. She has served on non-profit boards and is actively involved in the leadership of her church. Casey Pipes is both the managing shareholder of his law firm and an active practicing attorney, representing landowners in condemnation actions throughout Alabama in both federal and state courts.  Casey is also a member of The Counselors of Real Estate®, an international organization of real estate professionals recognized as the leading advisors in complex real property matters.  Casey previously served as Chair of several American Bar Association Committees and is also a frequent speaker at national and state-wide educational seminars on the subject of eminent domain and real property litigation.  On the national level, he has presented papers at several of the […]