Eminent Domain | Condemnation

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Here’s the amici brief we filed today on behalf of the Owners’ Counsel of America and the National Federation of Independent Business Small Business Legal Center with the California Supreme Court in Property Reserve, Inc. v. Dep’t of Water Resources, No. S217738. In that case, the court is reviewing a decision of the Court of Appeal which held that the DWR’s attempts to enter private property to survey and study the land and the environment in anticipation of condemnation were beyond the minor intrusions allowed by California’s “entry statute.” The Court of Appeal concluded the proposed entries rose to the level of takings, meaning that if the DWR wanted to undertake them, it would have to exercise its eminent domain power to do so.

We posted background on the case here, but the short story is that the State of California is once again planning a massive public …

Continue Reading Amici Brief: Precondemnation Entry That Goes Beyond “Innocuous” And “Superficial” Is A Taking

A couple of noteworthy conferences upcoming, one in-person, the other a “webinar” format:

  • The first is “Kelo: A Decade Later” at the U. Connecticut Law School, Friday, March 20, 2015, from 8:30 am – 4:30 pm. The conference promises to “look back at the decision and its repercussions,” and includes the lawyers for Ms. Kelo and the City of New London. “The conference will then explore the role of eminent domain in government planning generally. What role does and should eminent domain play in economic development?  What is the impact of post-Kelo changes to state law?  Does eminent domain have distinctive impacts on low income communities?  Leading scholars and practitioners in law, planning, sociology, and economics will explore these questions.” We note that our Connecticut Owners’ Counsel colleague Dwight Merriam is one of those “leading practitioners,” and will be moderating a panel entitled “Eminent Domain and Economic Development”

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Continue Reading Upcoming Conferences – Kelo In Connecticut, APA And The ESA

Frequent readers know that we just love the Australian comedy film “The Castle,” which tells the tale of one man’s legal fight to save his family’s home from the abusive exercise of eminent domain power. (See “Kelo Down Under,” our review.) The case is played for laughs and in the end, the homeowner naturally prevails, the private benefit is quashed by Australia’s High Court, and all’s well that ends well.

Those of us who practice this kind of law understand that real life doesn’t always — or even often — work out the way it does in the movies: the good guys may not always prevail, and even when things are looking up, the road ahead may be filled with many unexpected bumps and turns. 

So it is in “Leviathan,” the latest film from Russia’s Andrey Zvyagintsev.

Not that we would expect…

Continue Reading Movie Review: Leviathan – “The Castle” Gone Bad

When we hear the phrase “buy the farm,” we think of the cliche from the old war movies, not eminent domain.

But in Minnesota, “buy the farm” is taken literally. In Great River Energy v. Swedzinski, No. A13-1474 (Mar. 4, 2015), the Minnesota Supreme Court interpreted that state’s “buy the farm” statute, which gives certain landowners the option to require a public utility which is taking an energy corridor easement to buy their entire parcel if certain conditions set out in the statute are met. 

To be accurate, the court was not “interpreting” the statute, but reviewing the lower courts’ refusal to graft a reasonableness requirement into the statute as Great River, a utility with the power of eminent domain under the statute, had requested, after Great River condemned a permanent easement and a temporary access easement across Swedzinski’s land, and Swedzinski exercised the option to require…

Continue Reading Minnesota Supreme Court Orders Power Company To Buy The Farm – Literally

Railcoming

If you didn’t have a chance to attend last week’s community meeting on the Honolulu rail project and property rights at Farrington High School, we’ve posted the audio clips, which include the big picture, the current status, and a series of frequently asked questions.

  • FAQ’s and background (including “The Numbers: How Much Land, How Much Money, How Much Time?,” “Key Terms in Eminent Domain,” “The ‘Dear Owner’ Letter,” “Appraisals From an Eminent Domain Perspective,” “Business Losses, Lost Profits, and Business Interruptions,” “Relocation Benefits,” and more)
  • KITV video report
Related articles
Tommorrow’s Public Rail Project Forum: Eminent Domain, Just Compensation, And Protecting Property Rights
Property Owners Invited: Honolulu Rail Project Public Informational Meeting, Thursday, March 5, 2015, Farrington High School
Video: Report On Community Meeting On Property Rights And The Honolulu Rail
hawaiioceanlaw.com: Knowing Your Rights: Honolulu Rail Project and Right of Way Acquisitions

Continue Reading Honolulu Rail FAQ’s (And Answers) From Last Week’s Community Meeting

A short one from the Florida District Court of Appeals, Florida Dep’t of Transportation v. Mallards Cove, LLP, No. 2D13-181 (Mar. 6, 2015), a regulatory takings case that followed on the heels of a straight condemnation.

The DOT condemned property belonging to Mallards Cove via Florida’s quick take procedure, by which certain agencies may obtain immediate possession and title, provided they deposit a good faith estimate of the land’s value with the clerk of the court. Under Florida law, the property owner’s right to just compensation is then vested, and two weeks later, the property owner withdrew the $2 million deposit. While the funds were on deposit, he clerk invested it, and under a Florida statute, 90% of the interest went to the DOT. The eminent domain case wrapped up, with the owner agreeing that the final judgment represented full compensation for the property taken.

But the owner wasn’t…

Continue Reading Fla App: Quick Take Deposit Only Vests Owner’s Right To Compensation, Not To Specific Funds

Weird headline from KITV. No, owners whose property is taken for the rail aren’t “profiting” if they are able to get more for their land than what the condemning agency offered; “just compensation and damages” are required by the constitution, and if they are able to obtain more, in many cases that still leaves them undercompensated and simply means the condemnor’s offer was inadequate.

But besides the headline, KITV does a good report on last night’s community forum on property owners’ rights in eminent domain which we sponsored. 

Related articles
Tommorrow’s Public Rail Project Forum: Eminent Domain, Just Compensation, And Protecting Property Rights
hawaiioceanlaw.com: Knowing Your Rights: Honolulu Rail Project and Right of Way Acquisitions
inversecondemnation.com: Property Owners Invited: Honolulu Rail Project Public Informational Meeting, Thursday, March 5, 2015, Farrington High School
NJ Court: There’s No Substitute For The Eminent Domain Process, Even On The Shore, Even In An

Continue Reading Video: Report On Community Meeting On Property Rights And The Honolulu Rail

The Virginia Supreme Court recently heard oral arguments in Ramsey v. Commissioner of Highways, a case we’ve been following closely (and in which we filed an amicus brief in support of the property owners). 

This is the case about Virginia’s statutory requirements in eminent domain cases. As a prerequisite to a court exercising jurisdiction over a condemnation complaint, a state condemning agency must as an initial step present a statement of “the amount which [the condemnor] believes to be just compensation,” to the property owner, and must include an appraisal if an appraisal is required. 

The trial court viewed the required “statement” as a settlement offer, and prohibited the property owner from both telling the jury about the statement, and cross-examining the state’s appraiser about it. Even though the state’s initial statement of just compensation was $246,292, and later, its new appraiser at trial testified that just compensation…

Continue Reading Virginia Supreme Court Oral Arguments: Does A Precondemnation Value Statement Come In?

As reported yesterday by Pacific Business News (“HART acquired 34 properties for $70M along Honolulu rail transit route, new report says“), “[t]he Honolulu Authority for Rapid Transportation has acquired 34 properties totaling about $70.2 million thus far along the 20-mile rail transit route, including the recent purchase of a former sports bar property near Ala Moana Center for about $1.35 million.” 

In other words, it’s begun. 

In response to the many questions we’ve received from property owners, businesses. and homeowners whose rights may be at stake in the rail takings, we’ve organized a public forum to provide information about the project, Hawaii’s eminent domain process, and  how to protect the rights of people whose property or businesses are subject to acquisition. 

Details:

More information here…

Continue Reading Tommorrow’s Public Rail Project Forum: Eminent Domain, Just Compensation, And Protecting Property Rights

Metropolitan St. Louis Sewer District v. City of Bellefontaine, No. ED101713 (Feb. 24, 2015), is another one of those cases where construction by a city resulted in damage to property. The water district sued for inverse condemnation, among other things. Only twist here was that it wasn’t exactly “private” property, but property owned by another municipality, a water district. The City responded by arguing that hey man, the water district’s property is already devoted to public use, and the prohibition against takings only applies to private property, so no standing. 

Short story: the Missouri Court of Appeals punted the case up “because of the importance of this question, we transfer to the Missouri Supreme Court.” Slip op. at 7. The interesting thing, especially for those of us who also practice in jurisdictions where a case before an intermediate appeals court can be moved up to the supreme court by transfer, is…

Continue Reading Missouri App: Can One Municipality Take Another’s Property? We Don’t Think So, But We’re Not Certain