Eminent Domain | Condemnation

Subscribe to Eminent Domain | Condemnation via RSS

Untitled Extract Pages

Two years ago, Owners’ Counsel of America endowed a scholarship in the name of its founder, property rights advocate and trial lawyer Toby Prince Brigham (1934-2021). The scholarship is for a second- or third- year law student to attend the annual three-day ALI-CLE Eminent Domain and Land Valuation Litigation Conference (the upcoming Conference will be in New Orleans, Louisiana, February 1-3, 2024).

The Conference affords the Scholar an all-expenses-covered opportunity to meet and network with leading property rights and eminent domain lawyers from across the country, while also learning about property law and practice. 

Here’s the official description from OCA:  

In honor of Toby’s legacy of professionalism and achievement, in 2021 OCA established the Toby Prince Brigham OCA Scholarship to pay for all expenses of a second or third year law student to attend the ALI-CLE Eminent Domain conference and associated OCA events held annually in January. This unique…

Continue Reading Owners’ Counsel Toby Prince Brigham Scholarship – Applications Being Accepted

We recently attended the American Bar Association’s Annual Meeting in Denver to speak at the Section of State and Local Government Law’s program, “The 100th Anniversary of Pennsylvania Coal v. Mahon: How the Takings Clause Became the Primary Check on Government Power When SCOTUS Abandoned Review Under the Due Process and Contracts Clauses During the New Deal.“

But the real highlight of the Meeting was the Jefferson Fordham Awards which, as we noted earlier, were presented to property rights icon Michael Berger, who the Section recognized with the Daniel J. Curtin, Jr. Lifetime Achievement Award.

Also noteworthy: the presentation of the Anita P. Miller Advocacy Award to land use law giant, Professor John R. Nolon, and the Up and Comer Award to a former William and Mary student (and now colleague) of ours, Makenna X. Johnson. 

Professor Frank Schnidman introduced Michael Berger…

Continue Reading Recognizing A Property Rights Icon: “Mentors, A Path to Fairness, and the Joy of Taking”

The Eleventh Circuit’s short opinion (really short – 1.5 pages) in Sabal Trail Transmission, LLC v. 3-921 Acres of Land, No. 22-10435 (July 25, 2023), is straightforward: to resolve whether a Florida property owner subject to a private condemnor taking under the federal Natural Gas Act has a property right in attorneys fees and costs, the court applied a recently-decided circuit panel opinion that held yes:

The Natural Gas Act authorizes private entities who have received a certificate of public convenience and necessity to acquire property “by the exercise of the right of eminent domain.” 15 U.S.C. § 717f(h). Sabal Trail Transmission, LLC, invoked this power of eminent domain to acquire easements to build a pipeline on land owned by Sunderman Groves, Inc. In the condemnation proceeding, the district court determined that the Act incorporates state eminent domain law, and it consequently applied Florida law to grant attorneys&rsquo…

Continue Reading CA11’s Eminent Domain Attorneys Fees Ruling Is Controlled By Prior Panel

A short (but interesting) one from the Ohio Supreme Court. In State ex rel. Balunek v. Marchbanks, No. 2021-1469 (July 25, 2023), the court held that a physical takings claim alleging the DOT cut off access to property was ripe, even though the owner might have applied for permit to gain access.

As part of a road construction project, ODOT removed and didn’t replace two driveways to the property, landlocking it. ODOT admitted it did so, but didn’t include the lost access in the compensation by arguing “that access could be [re]established if Balunek obtains a ‘street opening permit’ from Cleveland. Slip op. at 3.

The owner sued, seeking a writ to compel ODOT to formally condemn the access. Remember that Ohio does not recognize the usual inverse condemnation remedy, but in situations where an owner asserts its property has been taken and the government has not paid compensation…

Continue Reading Ohio S Ct Rejects Attempt To Import Regulatory Takings Ripeness Into Physical Takings

The latest in a case we’ve been following doesn’t get to the substantive issue: is a local park district authorized to take private property for a bike path when the statute authorizes takings for “conservation of natural resources?”

Instead, the Ohio Supreme Court dismissed the appeal for a familiar reason: lack of a final judgment. In Mill Creek Metro. Park District v. Less, No. 2022-0628 (July 11, 2023), the court did not consider the issue, but instead concluded the trial court proceedings were not yet final.

Here’s how the case set up procedurally. The district instituted state court eminent domain actions to take Less’s land for the bike path. Less objected, asserting that the district lacked the power to take land for a bike path. Less sought summary judgment on that issue, which the trial court denied. Normally, in the absence of some kind of interlocutory appeal, denials of…

Continue Reading Ohio S Ct In Power-To-Take Case: Too Soon!

When a condemnor is told “no” (or voluntarily drops an eminent domain lawsuit), many jurisdictions require it to pay attorney fees to the parties on the target end of the vs.

Colorado is one of those jurisdictions, and as the Colorado Court of Appeals noted in Mulberry Frontage Metro. Dist. v. Sunstate Equip. Co., No. 22CA0680 (July 13, 2023), the “[t]he General Assembly has provided that when a court rejects a condemnation petition on the grounds that the petitioner isn’t authorized to acquire the subject property, ‘the property owner who participated in the proceedings’ is entitled to recover their reasonable attorney fees and costs.” Slip op. at 2. Sounds good, Colorado.

Clear enough when the “property owner” claiming fees is the title (fee) owner. And here, the trial court concluded that Mulberry did not have the power to take. The fee owner plainly had the right to recover…

Continue Reading Colorado App: Lessees Are Not “Property Owners” Under Attorney Fees Statute

Not saying Kelo

A big thanks to friend and colleague Paul Henry for bringing to our attention this article by Andrew Stuttaford, UFOs and Eminent Domain.

No, it (unfortunately) is not the latest tenure-making scholarly law journal article (but we can dream, can’t we?), but a piece in National Review.

It details a proposal to release federal documents relating to UFOs. Nice. But buried in the measure is this (according to Reuters):

Under the measure, records must be publicly disclosed in full no later than 25 years after they were created unless the U.S. president certifies that continued postponement is necessary because of a direct harm to national security.

It also establishes that the federal government would have “eminent domain” over any recovered technologies of unknown origin and any biological evidence of “non-human intelligence” that may be controlled by private individuals or entities.

Who among us is going to be…

Continue Reading New Article: “UFOs and Eminent Domain”

Every law school graduate surely remembers that 1L Contracts case about the two ships named “Peerless” and the doctrine of mutual mistake.

In Marchbanks v. Ice House Ventures, LLC, No. 2022-0047 (June 8, 2023), the Ohio Supreme Court rejected the DOT’s claim that a previously-agreed-upon agreement to settle an eminent domain action did not reflect a meeting of the minds, because it was the product of a mutual mistake.

Here’s the story. ODOT instituted an eminent domain case to take the property of Ice House Ventures for a freeway improvement project. A few days before the jury trial on valuation was to get underway, the parties settled. ODOT agreed to two things: (1) pay $900k compensation, and (2) transfer to IHV a separate small parcel of land owned by the City of Columbus, to be used by IHV for a 12-car parking lot. ODOT believed the city would be…

Continue Reading “Peerless” Eminent Domain Settlement Agreements: No Mutual Mistake In “Damages” Term

Update: someone blinked – between the time we drafted this post and the time is actually posted, we understand that this case settled. But the “spite takings” issue remains of interest, so we’re leaving this post up.

——————————————————————————————

You already know about the prior public use issue, often arising in government-to-government takings. The Fifth Amendment requires a public use and compensation for the taking of “private property,” so does it apply where the condemnor is seeking to take property owned not by a private owner, but by the public or by the government?

The Kentucky Supreme Court has agreed to review a case with an interesting twist on that scenario. In City of Cold Spring v. Campbell County Bd. of Education, No. 2021-CA-001470 (Dec. 16, 2022), a county board of education sought to exercise eminent domain to take property owned by a city. The…

Continue Reading Kentucky SCT To Review Prior Public Use Case Where City Purchased Property To Thwart School Board’s Acquisition

As we’ve noted before, we think courts generally don’t like it when they are asked to revisit a dispute that was settled by agreement. Yes, settlement agreements are contracts, and just like every other contract they are subject to enforcement, breach actions, and the like.

But our experience is that courts are not keen on revisiting, because when you settle, you settle. Write up that settlement agreement well, counsel, because if everyone isn’t going in with eyes wide open about what they are agreeing to, what they aren’t agreeing to, and what are the potential risks down the road, you probably won’t get a second judicial bite to complain. 

The Colorado Court of Appeals’ opinion in Denver v. Monaghan Farms, No. 22CA0956-PD (June 29, 2023) just might reflect that sense (or maybe the party arguing that the settlement agreement didn’t do what the other party said just didn’t…

Continue Reading Courts Don’t Like Trying To Unwind Settlement Agreements (Esp. Condemnation Settlements)