The Eminent Domain Law Blog

Two Eminent Domain Blogs to Watch

noreply@blogger.com (Owners' Counsel of America) — Wed, 23 May 2012 20:39:00 +0000

In 2011, the Eminent Domain Review was launched by Kevin E. Anderson of Anderson, Call & Wilkinson in Salt Lake City, Utah. Kevin is the Utah Member of the Owners' Counsel of America and has been blogging about recent cases and issues related to eminent domain from the Utah state and federal courts. Check out his posts relating to a recent case Utah Department of Transportation v. Admiral Beverage Corporation regarding damages for loss of visibility, the "Politics of Eminent Domain" and Just Compensation.

More recently, Michael F. Faherty, the the Owners' Counsel of America Pennsylvania Member launched the Eminent Domain PA blog. Mike covers issues and developments affecting condemnation law in Pennsylvania, including posts about major projects that may affect property owners throughout the state. Of particular interest are his posts the "Property Owner's Guide" and those relating to natural gas and Marcellus shale drilling.

Both blogs will be interesting to follow.

New Orleans Eminent Domain Attorney Secures More Than $9 Million Just Compensation for Private Property in Hospital Project Footprint

noreply@blogger.com (Owners' Counsel of America) — Fri, 11 May 2012 20:23:00 +0000

Randall A. Smith, the Louisiana Member of Owners' Counsel, recently secured a jury verdict of $9,566,640 as just compensation for the expropriation of property owned at 1732 Canal Street in downtown New Orleans. The verdict awards the property owner more than double the $4.5 million originally paid by the state of Louisiana when it took the property using the power of eminent domain in 2010. Now the state must pay more than $5 million plus interest to the owner and will also be taxed with paying the owner’s attorneys’ fees, experts’ fees and reasonable trial expenses.

Located at the corner of Canal Street and South Claiborne Avenue, the property is the site of the former Grand Palace Hotel originally constructed in the 1950’s to house both apartment units and commercial businesses. The owner, a Washington D.C. developer, purchased the property in 2008 at auction with the intent of redeveloping the site. The property was acquired by the Louisiana State University as part of the proposed 34-acre University Medical Center campus.

The Times-Picayune reported: "We think this is a big deal," said New Orleans attorney Randy Smith, who represents Thoron, the Washington, D.C., development firm that owned 1732 Canal St. property. "I've got a dozen or so more of these heading to trial and this sets the standard."

Prior to trial, Smith challenged the taking of his client's property as an illegal expropriation due to the fact that the most recent plans for the project indicate that the property will be used as green space rather than for public facilities. He did not challenge the public purpose of the project itself rather the specific use for which his client's property would be put. The state, in contrast, claimed that the land will be needed for a future expansion that has yet to be planned. Unfortunately, both the trial and appellate courts rejected the owner’s challenge to the taking. The jury, however, agreed with the owner regarding the property’s value finding that the state owed the additional $5,066,640 plus interest as just compensation.

NYC Pulls Plug on Willets Point Eminent Domain

noreply@blogger.com (Owners' Counsel of America) — Thu, 03 May 2012 19:59:00 +0000

On the eve of a hearing before the New York Supreme Court, Appellate Division, the City of New York has withdrawn its eminent domain suit and halted efforts to acquire private property in the “Iron Triangle” of Willets Point, Queens. The condemnation actions were scheduled for a hearing Monday at which time the property owners’ attorney, Michael Rikon, planned to contend that the City’s proposed takings for the $3 billion Willets Point redevelopment plan were neither for a public purpose nor conducted appropriately under requirements set forth in NY State’s Eminent Domain Procedure Law (EDPL), the New York State Constitution or the U.S. Constitution.

[Disclosure: Michael Rikon is an eminent domain attorney in Manhattan and the New York Member of the Owners' Counsel of America. ]

According to The New York Observer,“There were a lot of things going against the city here, and in view of all that, I think someone made the executive decision that this was going against the city and would set a bad precedent for all future takings,” Michael Rikon told The Observer.

Mr. Rikon, an attorney for Willets Point United, a landowner group fighting the city, said that the city faced a tough case because of issues ranging from a failure to have translators at the eminent domain hearing (many property owners are Latino) to not providing notice in person and having no clear public use yet assigned (there was not yet a developer in place at the time of the hearing). “It’s strange, too, because rarely do you win these kinds of cases,” Mr. Rikon said of eminent domain defendants, “but I really think this could have been different.”

While NYC has confirmed that it has withdrawn the eminent domain case, a City spokesperson has indicated that the project continues to move ahead.

“We’re very close to having a deal in place that will transform Willets Point into New York City’s next great neighborhood and continue the historic progress we’ve already made there,” said Julie Wood, spokeswoman for Mayor Michael Bloomberg. “Today’s action ensures that our plan will comply with the site’s myriad technical and legal requirements.”

The City’s proposed public use is questionable and has been at the center of the property owners’ challenge against the use of eminent domain. The alleged purpose of the redevelopment for which private property need be condemned is to “transform a largely underutilized site with substandard conditions and substantial environmental degradation into a lively, mixed use sustainable community and regional destination.” The property owners, however, have arguedthat this proposed use is “no more than pure speculation, with no developer chosen or even having agreed to undertake this significant and costly project.”

The withdrawal of the eminent domain suit does not preclude the City from attempting to use eminent domain in the future and may allow it to correct the mistakes and other procedural errors conducted over the last 3 years of this redevelopment project’s life. As a matter of fact, The NY Times reports that the City “plans to submit a new set of findings, after the environmental review and the public review. Those, in turn, will almost certainly generate a new lawsuit opposing the project.” The Times also noted that the City has now selected a developer for the first phase of the redevelopment plan, a joint venture of Related Companies and Sterling Equities, a real estate company owned by Fred Wilpon and Saul B. Katz, the owners of Citi Field and the Mets.

There is certainly more to come in this story. But for now, we send our congratulations to Mike Rikon, the members of Willets Point United and the private property owners, businesses and individuals who will continue on in the “Iron Triangle.”

For more commentary visit our blogging colleagues at inversecondemnation, New Jersey Condemnation and Gideon’s Trumpet.

SCOTUS Denies Review in NYC Just Compensation Case

noreply@blogger.com (Owners' Counsel of America) — Mon, 30 Apr 2012 17:04:00 +0000

This morning the Supreme Court issued its order listing, among other things, the cases which the court has decided it will or will not grant certiorari. Of those to be denied review is the eminent domain case of River Center LLC v. Dormitory Authority of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012) in which the constitutional guarantee of "just compensation" is at issue.

This is the case that involves one of the largest condemnations of private property in NYC history - the taking of the unused development rights of an entire city block in Manhattan near Lincoln Center for the performing Arts. Here, the property owner and developer challenged the compensation awarded by the New York State courts for the taking of private property because the NY appellate courts refused the owner the right to put forth evidence pertaining to the property's value. The NY courts opined that the owner whose property is taken by eminent domain must be able to show its claimed highest and best use is "established as reasonably probable and not a 'speculative or hypothetical arrangement in the mind of the claimant,'" and that the owner must have specific plans that will "come to fruition" in the immediate future.

The property owner argued in the cert petition that the Just Compensation Clause of the Fifth Amendment does not require a property owner to show that the development plans will come to fruition soon.We filed a brief in support of the property owner which argued that all evidence of value must be considered by a reviewing court and that the court(s) cannot disregard evidence that a potential buyer of the property would consider important in assessing value.

Willets Point United Supporters Rally in Support of the Private Property Rights Protection Act of 2012

noreply@blogger.com (Owners' Counsel of America) — Wed, 18 Apr 2012 16:18:00 +0000

Last week Willets Point United, a group of business and land owners dedicated to fighting eminent domain abuse in Willets Point, Queens, NY, and supporters of private property owners rallied in support of H.R. 1433, The Private Property Rights Protection Act of 2012. H.R. 1433 prohibits the use of federal funds for economic development projects that use the power of eminent domain to take private property for anything other than public use. This bi-partisan bill was co-sponsored by Republican James Sensenbrenner and Democrat Maxine Waters and passed the U.S. House of Representatives by a voice vote on February 28, 2012. (See our previous post here.)


Photo credit: Jeanne Noonan for New York Daily News

Willets Point United supporters, including Joseph Ardizzone, NYC Councilman Dan Halloran and condemnation attorney Michael Rikon*, rallied in support of H.R. 1433 to limit the use of eminent domain for economic development projects.

Willets Point United has opposed New York City’s use of eminent domain to acquire private property for the mixed-use development planned for this Queens neighborhood. While NYC has indicated that it is not seeking federal funds for the proposed Willets Point Urban Renewal Plan, should H.R.1433 become law it could discourage NYC and other municipalities, local and state governments from pursuing such projects due to the potential loss of federal funding in the future.

Read more about the Willets Point rally at New York Daily News here.

For more about the Willets Point project and opposition to it, see our previous posts here.

*Disclosure: Michael Rikon of Goldstein, Rikon and Rikon PC, New York, NY is an eminent domain attorney affiliated with the Owners' Counsel of America. Mr. Rikon represents Willets Point United, Inc. and individual property owners located within the footprint of the Willets Point Urban Renewal Plan. These owners will lose their private properties and businesses to eminent domain if the City moves forward with the proposed condemnation.

New York's Brief in Opposition to River Center's Cert Petition

noreply@blogger.com (Owners' Counsel of America) — Wed, 28 Mar 2012 18:30:00 +0000

The state has filed its Brief in Opposition to the property owner's Petition for Certiorari in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012). This case involves one of the largestcondemnations of private property in the history of New York City – the taking of the unused development rights of an entire city block located in the neighborhood of the Lincoln Center for the Performing Arts. At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government’s power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use.

Owners' Counsel has filed an Amicus Curiae Brief in this case on behalf of the property owner. Here the Petitioner is seeking review of the decisions of the New York courts which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York. The New York courts concluded that an owner whose property is taken by eminent domain must have specific plans that will "come to fruition" in the immediate future. The Owners’ Counsel brief argues that all evidence of value must be considered by a reviewing court, and it cannot disregard evidence that a potential buyer of the property would consider important in assessing value.

See our previous posts regarding this case here and here. See also Robert Thomas's post on this case here and here. [Mr. Thomas prepared and filed the brief on behalf of Owners' Counsel.]

Brief in Opposition, River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (filed Mar. 2...

Owners' Counsel Welcomes Anthony Della Pelle as the New Jersey Member-Attorney

noreply@blogger.com (Owners' Counsel of America) — Wed, 28 Mar 2012 16:43:00 +0000

Owners' Counsel of America welcomes Anthony F. Della Pelle, Esq., CRE of McKirdy & Riskin, P.A. in Morristown, New Jersey as the New Jersey member dedicated to representing landowners throughout the State. Mr. Della Pelle succeeds his partner, Edward D. McKirdy, Esq. who previously served as the New Jersey representative.

Mr. Della Pelle concentrates his practice in the areas of eminent domain, redevelopment,and real estate tax appeals. He is a designated member of The Counselors of Real Estate®, an international organization of real estate practitioners who are recognized as the leading advisors in complex real property matters. He holds Martindale-Hubbell’s® highest rating, AV Preeminent, and has been selected as a “New Jersey Super Lawyer” by New Jersey Monthly Magazine since its inception. This year, he was recognized as one of New Jersey’s Top 10 attorneys in the New Jersey Super Lawyers Magazine.

Mr. Della Pelle blogs about eminent domain, redevelopment, and property tax appeals at the New Jersey Condemnation Law Blog, www.njcondemnationlaw.com, and the New Jersey Property Tax Law Blog, www.realestatetaxappealsnj.com.

“I am extremely honored to be elected as the New Jersey representative of Owners’ Counsel. Its members are recognized nationally as leading property rights attorneys, and I look forward to working with them and collaborating in order to provide my clients with the best legal representation possible,” said Della Pelle.

To learn more about Mr. Della Pelle's career accomplishments, please visit his profile page on our website here.

Remembering a Preeminent Condemnation Attorney, Jay S. Dushoff, Phoenix, Arizona

noreply@blogger.com (Owners' Counsel of America) — Thu, 22 Mar 2012 18:29:00 +0000

The Owners’ Counsel of America is greatly saddened by the death of our fellow Member and friend, Jay S.Dushoff. A nationally recognized condemnation and property rights attorney, Mr. Dushoff passed away on March 21, 2012 in Phoenix, AZ following a long battle with cancer.

Mr. Dushoff’s legal career spanned more than a half-century and included the representation of property owners in more than 5,000 eminent domain cases throughout Arizona and several other states. He focused his practice in the areas of eminent domain, inverse condemnation, commercial litigation, real estate and valuation litigation, land use and zoning. Mr. Dushoff not only witnessed the evolution of condemnation law, but contributed to the development of this important legal specialty as a practitioner, speaker and author.

In 2009, Best Lawyers honored Mr. Dushoff’s extraordinary accomplishments, during its 25^thAnniversary event in Atlanta, Georgia. The event celebrated the distinguished careers of 1,397 lawyers, including Jay, who had been listed in the publication since its inception in 1983.

“Jay Dushoff was a dynamic individual and a committed and passionate attorney,” said Owners’ Counsel of America Executive Director, Cathy Newman. “We will miss his enthusiasm for private property rights, his wisdom and counsel, but most of all, his friendship.”

Mr. Dushoff graduated from the University of Pennsylvania (B.A., 1954), Phi Beta Kappa. He obtained his law degree from Harvard University (J.D., cum laude, 1957). He is survived by his wife Souheir Alkhoury Dushoff, his daughter, Rachel, son, Eric, and step-son, William.

More details concerning Mr. Dushoff's exceptional career are available here.

Updated 3/23/12: An obituary and guest book in Mr. Dushoff's memory are available online here.

Government Restrictions on Groundwater Constitute Inverse Condemnation in New Jersey

noreply@blogger.com (Owners' Counsel of America) — Thu, 15 Mar 2012 15:38:00 +0000

Farmer Todd Kuehm has battled the Township of Montville for almost a decade seeking to simply use the groundwater beneath his land for irrigation. Mr. Kuehm’s 28 acre farm is located on the Towaco Aquifer which supplies water to many area residents. Despite the property’s natural water resources, Montville has prohibited Mr. Kuehm, a fourth generation New Jersey farmer, from using the groundwater to irrigate his crops. As a result, the farm business has suffered damages as Mr. Kuehm has been unable to put his agricultural property to its highest and best use cultivating more lucrative crops. Rather he has chosen to plant corn which requires less water and a lower financial investment to cultivate.

In December 2011, the Superior Court of New Jersey found that the restrictions placed upon the property by Montville constituted a taking under inverse condemnation. The Court ordered the Township to pay Mr. Kuehm just compensation for the taking as well as his attorneys’ fees. While Mr. Kuehm is seeking only $275,000 in damages as a result of the taking, the amount of just compensation due to Mr. Keuhm will remain undetermined for some time as the Township has appealed the Superior Court’s December 2011 ruling.

Condemnation counsel to Mr. Keuhm, Anthony Della Pelle* said in an article by Carla Townsend in The Daily Record, “I want to make sure that Todd is made whole for the deprivation of the property rights by the town so he can go on with his life and farm his farm. With modern farming, especially here in this state where there’s so little land, you have to farm that land efficiently to make any money.”

For more background on this story, see Montville farmer’s battle over water rights and the NJ Condemnation Blog post New Jersey Farmer Growing More Dedicated in Fight Against Eminent Domain. You can also watch an interview with Mr. Keuhm and his attorney, Anthony Della Pelle, on Fox News here or click below.

[Disclosure: Anthony Della Pelle, Esq., CRE is the New Jersey member of the Owners’ Counsel of America and a partner with McKirdy & Riskin, P.A. in Morristown, NJ. Mr. Dell Pelle practices exclusively to the in the areas of eminent domain, redevelopment and property tax appeals representing private property owners throughout the state of New Jersey .]

Arkansas Jury Awards Property Owners Just Compensation Five Times the Government's Offer

noreply@blogger.com (Owners' Counsel of America) — Thu, 08 Mar 2012 21:14:00 +0000

Last week a jury in Boone County, Arkansas awarded two landowners $341,500 for private property condemned by the Ozark Mountain Regional Public Water Authority. The verdict represents an increase of more that five times the $67,000 offer made to the owners by the water authority for their 29.87 acres.

In 2010, Ozark Mountain condemned a portion of the property's 809.82 acres for the construction of a water intake and treatment facility. The condemnation resulted in the loss of lake access for the remaining 779.95 acres. Of the 29.87 acres acquired, 20.36 acres were taken by Ozark Mountain to construct a 15 acre water treatment facility site and for buffer areas around the intake facility. The remaining 9.51 acres were encumbered by permanent easements for the construction and use of roadways, transmission pipelines, and electrical distribution lines to service the facility which will supply water from Bull Shoals Lake to several cities, towns, and water associations in Boone, Newton, Marion, and Searcy Counties.

Attorneys for the the landowners, Michael B. Phillips and Brandon Moffitt, asked the jury for $468,000 for the takings. After three days of testimony, the twelve person jury deliberated for approximately an hour and a half before returning with their verdict of $341,500 as just compensation for the property taken.

[Disclosure: Michael B. Phillips is the Arkansas Member of the Owners' Counsel of America. Mr. Phillips and his partner, Brandon Moffitt, of Moffitt & Phillips, PLLC in Little Rock, represent property owners throughout Arkansas in condemnation proceedings.]

Will National Eminent Domain Reform be a Reality in 2012?

noreply@blogger.com (Owners' Counsel of America) — Thu, 08 Mar 2012 20:41:00 +0000

Last week (February 28), the United States House of Representatives passed by the Private Property Rights Protection Act of 2012 (H.R. 1443), which is intended to prevent the misuse of eminent domain for economic development. The proposed bill is not a cure for eminent domain abuse. Rather, it moves eminent domain reform forward on national level by cutting federal economic development funds to state and local governments that justify taking private property for economic development. If a government violates the bill’s ban on economic development takings, federal development subsidies will be withheld for two years. Further, the bill provides private property owners with the right to take legal action against any government entity that violates the provisions of the law.

The Private Property Rights Restoration Act will provide American citizens in every state with the means to protect their private property from exceedingly unsubstantiated claims of eminent domain. Under the legislation, if a state or political subdivision of a state uses its eminent domain power to transfer private property to other private parties for economic development, the state is ineligible to receive federal economic development funds for two fiscal years following a judicial determination that the law has been violated. Additionally, the bill prohibits the federal government from using eminent domain for economic development purposes.
The protection of property rights is one of the most important tenets of our government. I am mindful of the long history of eminent domain abuses, particularly in low-income and often predominantly minority neighborhoods, and the need to stop it. I am also mindful of the reasons we should allow the government to take land when the way in which the land is being used constitutes an immediate threat to public health and safety. I believe this bill accomplishes both goals.
Excerpted from the textof Rep. Jim Sensenbrenner’s remarks on the House floor introducing H.R. 1433.

As many will remember, this is not the first time that legislation has been introduced to limit the use of eminent domain for economic development. Following the U.S. Supreme Court ruling in City of New London v. Kelo, the House passed a similar measure in response to the Court's decision and the national cry of outrage that followed. Unfortunately, the 2005 legislation died in the Senate before making its way to the floor for a vote. The current legislation, H.R. 1433, is now in the Senate Judiciary committee. Let’s hope that this bill makes it to the Senate floor for a vote.

For more discussion on H.R. 1433 see also:

House Passes Anti-Kelo Eminent Domain Reform

Eminent Domain Reform Bill Passes the House

Walsh: Congress Can Hault Eminent Domain Abuse

More Amicus Briefs Filed in Support of Property Owner in Just Compensation Case

noreply@blogger.com (Owners' Counsel of America) — Mon, 05 Mar 2012 19:25:00 +0000

Two other amicus briefs have been filed in support of the petitioner in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012). [Disclosure: Owners’ Counsel has also filed an amicus brief in support of the petitioner, see our previous post here.]

Motion for Leave to File Brief and Brief for Real Estate Board of New York, Inc., International Council of Shopping Centers, National Multi Housing Council, and Real Estate Roundtable as Amici Curiae in Support of Petitioners

Presents the following question:

Whether state-court valuation rules in condemnation proceedings that systematically exclude or ignore all relevant market-based evidence favorable to the owner on the value of a parcel in development afford the owner of real property “the full and perfect equivalent in money of the property taken,” as required under the Just Compensation Clause of the Fifth Amendment to the United States Constitution?

Motion for Leave to File and Brief of Amicus CuriaeCenter for Constitutional Jurisprudence in Support of the Petitioner

Presents the following question:

Does just compensation under the Fifth Amendment for a taking by eminent domain include

the value of land uses that the condemning agency illegally sought to delay and frustrate?

This case involves one of the largest condemnations of private property in the history of New York City – the taking of the unused development rights of an entire city block located in the area of the Lincoln Center for the Performing Arts. At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government’s power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use. The property owner is challenging the compensation awarded by the New York courts for the condemnation of its private property.

The petitioner in River Centerfiled a Petition for Writ of Certiorari seeking review of the New York courts, which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York. The petitioner had the intention of developing the property into a multi-use commercial, retail, and residential complex. Its plans and ability to do so, however, were severely restricted by the Dormitory Authority’s strategic interference over 19 months to deny the re-zoning of the property and delay construction. When the property was eventually condemned by the Dormitory Authority in 2001, the intended development had not yet broken ground.

For more information visit inversecondemnation.com; blogger and attorney, Robert Thomas, prepared and filed OCA’s amicus brief in this case. [Disclosure: Robert is also the Hawaii member of the Owners’ Counsel.]

OCA Files Amicus Brief in Support of Property Owner in SCOTUS Eminent Domain Case

noreply@blogger.com (Owners' Counsel of America) — Thu, 01 Mar 2012 04:59:00 +0000

Owners' Counsel of America recently filed an amicus brief (embedded below) in support of the property owners in River Center LLC v.Dormitory Auth. of the State of New York (11-922) urging the United States Supreme Court to grant review and correct the eminent domain decision by the Appellate Division of the New York Supreme Court.

The case involves one of the largestcondemnations of private property in the history of New York City – the taking of the unused development rights of an entire city block located in the area of the Lincoln Center for the Performing Arts. At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government’s power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use.

The petitioner in River Center filed a Petition for Writ of Certiorariseeking review of the New York courts, which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York. The petitioner had the intention of developing the property into a multi-use commercial, retail, and residential complex. Its plans and ability to do so, however, were severely restricted by the Dormitory Authority’s strategic interference over 19 months to deny the re-zoning of the property and delay construction. When the property was eventually condemned by the Dormitory Authority in 2001, the intended development had not yet broken ground.

The petition presents three questions for the Court to consider:

Questions Presented

1. Whether the Fifth Amendment permits a state to deny compensation to an owner for loss of the reasonably probable development potential of a condemned development site taken through eminent domain proceedings, unless the property owner can show that development will come to fruition in the near future.

2. Whether, in awarding just compensation under the Fifth Amendment, a state may exclude damages resulting from deliberate governmental interference with a development project that delays development and suppresses the property’s value at the time of the taking over what it would otherwise have been.

3. Whether the Fifth Amendment permits a court in a condemnation proceeding to restrict evidence of value to the testimony of appraisers and to exclude or ignore otherwise competent testimony of property value (a) from the property’s owner, and (b) from third parties able to provide market-based evidence of value, such as financing proposals and offers to lease and buy.

Robert H. Thomas of Damon Key Leong Kupchak Hastert in Honolulu prepared and filed the amicus brief on behalf of OCA. [Disclosure: Mr. Thomas is a condemnation, land use and appellate attorney and the Hawaii member of OCA.] “This is a very important case,” he said. “As a result of the Supreme Court’s decision in the infamous Kelo case, the public’s attention in eminent domain has been on the power of the government to take property for redevelopment and other uses that are not clearly “public.” But the question of how compensation is determined once property is taken is also critical, and the Supreme Court should focus its attention on this case.”

The New York courts concluded that an owner whose property is taken by eminent domain must have specific plans that will "come to fruition" in the immediate future. The Owners’ Counsel of America briefargues that all evidence of value must be considered by a reviewing court, and it cannot disregard evidence that a potential buyer of the property would consider important in assessing value.

The New York court also rejected evidence that the Dormitory Authority depressed the value of the property in anticipation of the condemnation. Thomas said, “a court disregarding those facts is outrageous.” He also noted that “Manhattan is the most expensive real estate market in the nation and what happens there has wide impact, so this case takes on an added importance.”

The brief also argues that the Fifth Amendment protects the right of both a property owner and developer to testify about the property’s value. Owners’ Counsel implores the Court’s review of this case to emphasize the constraints that the Just Compensation Clause places on the eminent domain powerand to safeguard the rights of private property owners.

For more discussion about River Center and "condemnation blight" (also known as "oppressive pre-condemnation conduct") visit:

Brief Amicus Curiae of Owners' Counsel of America, River Center LLC v. The Dormitory Auth. of the State of ...

Owners' Counsel Honors Florida Eminent Domain Attorney Toby Brigham

noreply@blogger.com (Owners' Counsel of America) — Thu, 23 Feb 2012 20:57:00 +0000

The Owners' Counsel of America recently honored one of the country’s top condemnation and property rights attorneys, Toby Prince Brigham, Esq., for his devotion to the constitutional right of private property ownership. For more than 50 years, Toby Brigham, has represented property owners in Florida and across the United States in eminent domain, inverse condemnation, regulatory taking challenges, condemnation blight, and related real estate, land use and business damage litigation at both the trial and appellate level.

Toby Brigham accepted the Crystal Eagle Award on Jan. 28.

A graduate of Yale University (’56) and the University of Florida College of Law (’59), Mr. Brigham has dedicated his law practice exclusively to the defense of private property rights. At the time he began practicing law, eminent domain was hardly a special area of practice let alone the widely known hot button issue it is today. In fact, Toby Brigham helped to develop the field of eminent domain, particularly the representation of property owners in condemnation litigation, as a focused discipline. As a past planning co-chair and current faculty member of the American Bar Association-American Law Institute (ALI-ABA) annual Eminent Domain and Land Valuation Litigation course, he has sought for over two decades to educate and inspire other lawyers in the complexities of eminent domain law and the importance of private property ownership. Mr. Brigham has also lectured and written extensively on topics concerning condemnation, just compensation and private property rights.

(L to R): Joe Waldo, Toby Brigham, and Andrew Brigham

Since 1960, Mr. Brigham has represented property owners affected by every major public project in the State of Florida and secured among the largest trial verdicts and settlement awards for landowners in the state’s eminent domain history. Additionally, Mr. Brigham pioneered the use of public-private partnerships for development. He has been involved in some of Florida’s most successful public-private projects including Dadeland Station, a transit-oriented mixed use development in Miami, and the Loxahatchee Reservoir, a freshwater reservoir constructed from former rock pits in West Palm Beach. Currently, Mr. Brigham counsels landowners across the country on strategy relating to eminent domain, inverse condemnation, regulatory taking challenges and public-private partnerships.

Mr. Brigham has been recognized by both his peers and legal scholars for his effective advocacy of landowner rights. In Florida, he has been influential in shaping the constitutional and legislative provisions that currently protect property owners’ rights. Among his many honors, William and Mary Law School established the Brigham-Kanner Property Rights Conference in recognition of the lifetime contributions made by Toby Brigham and Gideon Kanner, Professor Emeritus, Loyola School of Law, to this field of law. Each year the Conference awards the Brigham-Kanner Property Rights Prize to a scholar whose work has contributed to the promotion of property rights by drawing attention to the integral role property rights occupy in our society and the broader scheme of individual liberty.

Annually, the Owners’ Counsel of America identifies individuals who have made a substantial contribution toward protecting the civil right of private property ownership and presents the Crystal Eagle Award. Past recipients include Dana Berliner (Senior Attorney, Institute for Justice), Professor James Ely (Vanderbilt University and author of The Guardian of Every Other Right), Dean Starkman, Dennis Hartig and Norman Oder (Journalists), as well as Sean Hannity and Alan Colmes (former co-hosts of Hannity & Colmes, Fox News Channel). This year, the Owners’ Counsel recognizes Toby Brigham who throughout his distinguished career has consistently sought to advance the cause of property rights in Florida and nationwide.

Disclosure: Toby Prince Brigham is an eminent domain attorney affiliated with the Owners' Counsel of America as an Emeritus Member.

ALI-ABA Emient Domain and Land Valuation Seminar

noreply@blogger.com (Owners' Counsel of America) — Tue, 31 Jan 2012 20:19:00 +0000

We just returned from the 29th Annual American Law Institute-American Bar Association (ALI-ABA) Eminent Domain and Land Valuation Litigation course in San Diego. As the course description explains: "[t]he power of eminent domain is being reshaped across the nation by court rulings and legislation. Much of the recent court activity and legislation has involved the controversial use, or attempted use, of eminent domain power to take private property for economic development by private parties. Redevelopment, however, is not the only fluid area in takings law. This national course of study addresses those areas where new developments in the law and procedure have and will reshape the practice."

Some highlights from the three-days of outstanding discussion and panels:

The Rule of Law and Property Rights in Emerging Economies: Challenges and Opportunities for Lawyers in the West - Harlan Abrahams
Eminent Domain for Economic Development: Is It Dead in California? If So, What Killed It? - John Murphy
My Cousin Vinny Meets The Verdict: What You Can Learn about Legal Ethics from Your Favorite Lawyer Movies - Larry Cohen
The Role of Hawaii's Unique Property Law in the U.S. Supreme Court's Takings Cases - Professor David Callies and Robert Thomas
Update from the President of the International Right of Way Association Regarding Prominent Issues Facing the IRWA - Randy Williams
Fear and Loathing from San Bruno: A Primer and Update on Damage Claims Based on Fear and Stigma – Brandee Caswell
Creative Use of Exhibits and Demonstrative Evidence in Eminent Domain Mediations and Trials (Condemnation 101)- Jeff Hamill and Randy Smith
Condemnation, Common Sense, and My Sister-in-Law, the Court Reporter (Condemnation 101)- Mark Savin

This is by no means an exhaustive list of the many truly amazing discussions that took place over the duration of the course, rather a short list of those topics in which we were able to participate. Unfortunately, it was impossible to hear every speaker and panel as this advanced-level course offers a dual tract format including substantive and practice area discussions while also running concurrently with Condemnation 101 which offers a broader introduction to eminent domain law.

If you are an eminent domain practitioner or professional in the field of land valuation, land planning, right-of-way or other related fields and you have not attended this course, it is highly recommended for the amazing insight provided by both the faculty and participants of both courses. This conference provides a unique opportunity for professionals from both sides (as well as the middle) of this nationally recognized issue to engage in healthy debate and discussion, exchange ideas and network. It's an annual occurrence, so the opportunity to join in the fun will be available again next winter...see you there.

Brigham-Kanner Property Rights Conference Makes Its International Debut in Beijing

noreply@blogger.com (Owners' Counsel of America) — Wed, 07 Dec 2011 21:19:00 +0000

The 8th Annual Brigham Kanner Property Rights Conference was held at Tsinghua University School of Law in Beijing, China, October 14-15, 2011.

The Eighth Annual Brigham-Kanner Property Rights Conference completed its international debut on October 15, 2011 in China. Legal scholars, jurists, and practitioners from the United States and China converged at Tsinghua University in Beijing to discuss and debate the evolution of property rights on a global scale. The Owners’ Counsel of America is pleased that our Member-attorneys were invited to participate in this prestigious event.

Owners’ Counsel Member, Joseph T. Waldo of Waldo & Lyle, P.C. in Norfolk, Virginia, was on the Conference Planning Committee and moderated three Conference panels. It was his vision to bring the Brigham-Kanner Property Rights Conference, usually held at William & Mary Law School in Williamsburg, Virginia, to an international stage: “The Brigham-Kanner Property Rights Conference is our nation’s only conference that focuses on the interplay of our civil rights to our property rights. This topic is becoming increasingly important worldwide. Because China is in the process of developing new property rights protections, it was the ideal venue for this year’s conference.” One of the major successes of the Conference, he contends, was that it “placed global emphasis on the important role property rights play in our societies and in each person’s individual liberty.”

During the two-day conference, as Chinese scholars discussed the impacts of China’s new, formal recognition of private property rights, Robert Thomas, Owners’ Counsel Hawaii Member, blogged live from Beijing. Thomas, a Director at Damon Key Leong Kupchak Hastert in Honolulu, commented, “…this is a propitious time to have this conference, and have it here.” Following the first panels, he wrote of his surprise that the Chinese panelists were so frank: “My impression was that it was not acceptable to make express criticism of the government, and even that there might be repercussions for doing so. But apparently, the ability of academics, at least, to say what they think, some of them quite critical of existing policies or actions, would be recognizable to western faculty schooled in the tradition of academic independence.”

Panelist and Owners’ Counsel Florida Member, Andrew Brigham of Brigham Moore, LLP in Jacksonville, remarked, “While there continues to exist significant contrasts in the structure of government between the U.S. and China, private property ownership appears to be a cornerstone in China’s recent reforms.” Brigham continued, “China, however, will have to build for itself a paradigm for property rights that is truly Chinese given this time and place in the country’s emergence as a global leader.”

Other Owners’ Counsel eminent domain attorneys who participate in the Beijing Conference included Alan Ackerman (Michigan), James Thompson (Maryland), Leslie Fields (Colorado), and James Burling of the Pacific Legal Foundation. Mr. Ackerman shared the stage with China’s most revered panelist, Ping Jiang, the former president of China’s University of Political Science and Law in a panel that focused upon Justice O’Connor’s property rights decisions. Mr. Thompson and Ms. Fields brought the eminent domain lawyer’s point of view to light in a roundtable discussion entitled “How Practitioners Shape the Law;” while, Mr. Burling discussed the relationship between property rights and the environment.

The 2011 Brigham-Kanner Prize was awarded to retired Supreme Court Justice Sandra Day O’Connor. In light of China’s new and increasing protections of property rights, Justice O’Connor was a fitting choice for this year’s Prize. As China begins to acknowledge and emphasize the importance of property rights, Justice O’Connor may be seen as an exemplar: it is possible for views and opinions on property rights to improve with time. Although Justice O’Connor was unable to be present in China, she graciously accepted the award in absentia with videotaped remarks.

Justice O'connor discussed the United States’ history of property rights protections, China’s emerging laws, and her own property rights decisions. Justice O’Connor concluded her remarks with the hope “that we will all continue to develop mechanisms for preserving rights in property for the benefit of all.”

Conference proceedings and related articles will be included in the inaugural Brigham-Kanner Property Rights Conference Journal, the first volume of which will be published in 2012 by The Property Rights Project of William & Mary Law School. The 2011 Beijing Conference was an exciting and informative conference, heralded by all as a success. The Owners’ Counsel of America enjoyed the pleasure of participating in it and we look forward to attending the 2012 Conference.

Eminent Domain documentary "Battle For Brooklyn" on the "shortlist" for the Oscars

noreply@blogger.com (Owners' Counsel of America) — Mon, 21 Nov 2011 16:16:00 +0000

The Academy of Motion Picture Arts and Sciences ("The Academy") announced last week that Battle For Brooklyn has made the "shortlist" of 15 documentary films that will advance in the voting process to be considered for an Academy Award. This film has certainly come far and received rave reviews since we first viewed it in February at its debut screening during the ALI-ABA Eminent Domain and Land Valuation Litigation course in Coral Gables, FL.

As we wrote this summer before the film opened in New York, Battle for Brooklyn captures a community's seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. It is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community, literally. Read more about Battle For Brooklyn on this blog here, an movie review by fellow blogger Robert Thomas here and his interview with one of the filmmakers here. Watch the trailer below.

Upcoming screenings: (Check battleforbrooklyn.com/screenings for a more up to date list of dates.)

November 22 - Chapel Hill, NC
6pm at Varsity Theater

January 13, 14, 15, 2012 - Washington, DC
Dome Theater, Artisphere in Arlington, VA

Friday, January 13th - 8:00 PM
Saturday, January 14th - Matinee with panel discussion TBD - 5:00 PM
Saturday, January 14th - 8:00 PM
Sunday, January 15th - 6:00 PM
All screenings will be followed by Q&A with directors Michael Galinsky and Suki Hawley. A screening of the short film, “The Tragedy of Urban Renewal” by dir. Jim Epstein will precede each screening.

Mississippi voters approve amendment restricting eminent domain

noreply@blogger.com (Owners' Counsel of America) — Thu, 10 Nov 2011 15:06:00 +0000

On Tuesday with 73% of Mississippians voting in favor of property rights and limiting the use of eminent domain for private development, Initiative 31 was approved. Since the infamous 2005 U.S. Supreme Court ruling in Kelo v. City of New London, 43 states have passed legislation creating stronger protections for private property owners against the power, and possible abuse, of eminent domain. Mississippi has now become the 44th state to reject the use of eminent domain for private development.

Initiative 31 amends the Mississippi Constitution to prohibit the state and local governments from taking private property by eminent domain and transferring it to another private party or entity. The restriction extends for a decade allowing agencies that condemn private property for a public use to transfer or sell it to another owner only after having owned and used the property for a minimum of 10 years. This restriction discourages the transfer of private property from one landowner to another private party for the purpose of “economic development”.

For more on Initiative 31 see our previous post here. We also recommend reading yesterday's posts by Gideon's Trumpet here and IJ's Castle Coalition here.

Mississippi Ballot Initiative No. 31 on Eminent Domain: "motherhood and apple pie"

noreply@blogger.com (Owners' Counsel of America) — Tue, 08 Nov 2011 17:10:00 +0000

Voters in Mississippi are at the polls today to elect a new governor and legislature as well as decide upon a number of measures. Among them is Initiative 31, a citizen's initiative for a constitutional amendment to prohibit the state and local governments from using the power of eminent domain to condemn private property and transfer it to another private individual or entity for a period of 10 years after acquisition. Initiative 31 has garnered much media attention and Campaign Insider has called this a "ballot battle to watch."

Since Kelo, Mississippi remains one of only 7 states that has not yet enacted statutory provisions to protect its citizens from private to private property transfers via eminent domain. Mississippians and their legislators have tried twice in the past to pass eminent domain legislation. However, outgoing Gov. Haley Barbour (R) vetoed both pieces of legislation. (See our previous posts here, here and here.)

It's no secret that Gov. Barbour opposes Initiate 31. Barbour has argued that it will diminish the state’s ability to attract private investment and create jobs. Mississippi’s gubernatorial candidates disagree and have supported Initiative 31. The Mississippi Farm Bureau and the more than 100,000 voters who signed the petition to put Initiative 31 on the ballot also disagree with Barbour. Randy Knight, a Mississippi dairy farmer and president of the state Farm Bureau Federation, has argued "Other states have adopted a strong eminent domain law. They're still getting jobs. They're still getting economic development. They're still getting businesses to come set up in their state." (See Fox News report 11/3/11 here.) Further, Initiative 31 would not apply to all eminent domain actions allowing for exemptions for levee facilities, roads, bridges, ports, airports, common carriers, drainage facilities and utilities, or true public uses.

Fox News also quoted Leland Speed, the director of Mississippi's Development Authority, "This is a very emotional topic," he said. "It's motherhood and apple pie."

Actually Mr. Speed, it's a Constitutional guarantee and a ballot battle we're definitely watching.

St. Louis property owner retains his 1st Amendment right to protest eminent domain abuse

noreply@blogger.com (Owners' Counsel of America) — Tue, 19 Jul 2011 16:29:00 +0000

Property Owner, Jim Roos, pictured here in front of his eminent domain protest "sign."

Photo by The Institute for Justice

Last week the 8th Circuit Court of Appeals upheld a property owner's First Amendment right to protest the abusive eminent domain policies of the City of St. Louis. The case concerns a St. Louis property owner, Jim Roods, who opposed the city’s definition of blight and condemnation of his housing agency's private property for private redevelopment. Roos expressed his opposition by painting a conspicuous and rather large mural in protest on the side of one of the agency's buildings facing the interstate. The mural reads: "End Eminent Domain Abuse."

Of course, the city was not a fan of the mural. As such, Roos was required to either remove it or obtain a permit for it. However, when he attempted to secure the proper permit, the city refused to issue one to him pursuant to the zoning code. Roos appealed to the Board of Adjustment and was again denied. Roos's attorneys at the Institute for Justice filed a suit in state court against the City of St. Louis claiming federal civil rights violations. The city removed the case to federal court.

In March 2010, the federal district court judge ruled that the mural is not art, violates the city's sign code and must be removed. The city's sign ordinance requires signage to be no larger than 30 square feet in this zoning district. Mr. Roos's anti-eminent domain mural is reported to be more than 360 square feet. (See our previous post here.) The district court also concluded that the city's sign ordinance was “content neutral,” despite "content-based" exceptions for "national, state, religious, fraternal, professional and civic symbols or crests". The Eighth Circuit reversed, finding that the ordinance is not "content neutral" and therefore must be reviewed with strict judicial scrutiny: “[T]he zoning code’s definition of ‘sign’ is impermissibly content-based because ‘the message conveyed determines whether the speech is subject to the restriction.’”

"This is a victory not just for Jim Roos' right to protest eminent domain abuse, but for the right of every American to stand up to government whenever it abuses its power," says Michael Bindas, an attorney with the Institute for Justice, which represented Roos. "This case shows how interconnected our constitutional rights are—how vibrant free speech protections are essential to the preservation of our other rights and liberties, including property rights."

For more about the case see:

the Institute for Justice here
inversecondemnation.com here
Reason.com here
the Volokh Conspiracy here

New Cert Petition filed with SCOTUS: Post Kelo when is condemnation pretextual?

noreply@blogger.com (Owners' Counsel of America) — Mon, 18 Jul 2011 18:52:00 +0000

On July 14, 2011, our colleagues* at Damon Key Leong Kupchak Hastert in Honolulu, Hawaii filed a cert petition (see below) asking the U.S. Supreme Court to review the Hawaii Supreme Court's decision in County of Hawaii v. C&J Coupe Family Ltd. P'ship, 242 P.3d 1136 (Haw. 2010). In this case the County of Hawaii sought to seize by eminent domain the private property of the Coupe and Richards families for the purpose of constructing a 5.5-mile highway to bypass part of the congested Mamalahoa Highway. Hawaii's highest court upheld the taking on The Island of Hawaii (aka "the Big Island") holding that the asserted public use (a highway bypass) was not a pretext for a primarily private benefit received by the developer of a luxury residential project, the Hokulia project.

[*Disclosure: OCA Hawaii Member, Robert Thomas, is one of the Damon Key attorneys who has represented the Coupe and Richards Family in this litigation and in this request to the Supreme Court.]

Because he said it so well and because of his personal familiarity with this case, we will borrow what Robert has written on his inversecondemnation.com blog here outlining the opportunity that this petition for certiorari offers with respect to clarification of pretext in eminent domain.

This case presents the opportunity for the U.S. Supreme Court to firmly establish what the Kelo majority and Justice Kennedy’s concurring opinions strongly suggested, but did not need to squarely address in that case: that "unusual" exercises of eminent domain power will trigger a presumption of invalidity, or at least require heightened scrutiny. These independent triggers include when (1) a taking is accomplished outside of an integrated and comprehensive plan; (2) the factual context reveals suspect motivations such as a contractual restraint on sovereign powers; (3) the taking benefits a particular private party selected beforehand; or (4) private benefits outweigh incidental public benefits.

Governments and property owners will benefit from the establishment of clear standards, because condemning authorities will understand that when they utilize eminent domain in a neutral, transparent, and well-considered process, the result will be entitled to judicial deference, and property owners will be assured that in the absence of these indicators of pretext, the need to surrender their property for the greater good is genuine. While any single indicator is enough to trigger reversal of the presumption of validity, this case has all four.

The Question Presented in the petition follows:

The Hawaii Supreme Court held that a one-to-one transfer of property to a private developer by eminent domain, instituted outside the confines of an integrated development plan, and while the condemnor was threatened by breach of a contract in which it promised to condemn the land for the developer, was not subject to a presumption of invalidity or even heightened scrutiny under the Fifth Amendment's Public Use Clause. The court concluded that even when "a contract that delegates a county’s eminent domain powers raises well founded concerns that a private purpose is afoot" under Kelo v. City of New London, 545 U.S. 469 (2005), it is the property owner’s burden to prove by "clear and palpable" evidence the asserted reason for taking property is "manifestly wrong."

Since Kelo, the lower courts have been unable to settle on consistent or clear standards for when the public purpose supporting an exercise of eminent domain is pretextual, or in what situations the "risk of undetected impermissible favoritism" is such that a presumption of invalidity or a heightened standard of review is warranted. Id. at 493 (Kennedy, J., concurring). The question presented is:

What category of takings are subject to heightened judicial scrutiny, and when is the risk of undetected favoritism so acute that an exercise of eminent domain can be presumed invalid?

Additional background relating to this case is available on inversecondemnation.com here and here. See also Hawaii Legal News and the Star Bulletin.

Petition for a Writ of Certiorari, C&J Coupe Family Ltd Pship v County of Hawaii (filed 7/14/2011)

A personal invitation from Dean Douglas to attend the Brigham-Kanner Property Rights Conference in Beijing

noreply@blogger.com (Owners' Counsel of America) — Tue, 05 Jul 2011 15:18:00 +0000

What: The 8th Annual Brigham-Kanner Property Rights Conference
Where: Tsinghua University School of Law, Beijing, China
When: October 14 & 15, 2011
Who: Property rights legal scholars, students, eminent domain/condemnation and property rights lawyers, judges, related professionals and anyone interested in the advancement of property rights and comparative legal theories surrounding real property rights
Keynote Speaker: Justice Sandra Day O'Connor

Visit the conference website for additional details or see our previous posts here and here.

Battle for Brooklyn opens in NYC this weekend

noreply@blogger.com (Owners' Counsel of America) — Thu, 16 Jun 2011 20:05:00 +0000

The documentary Battle for Brooklyn opens this Friday, June 17th, at Cinema Village in Manhattan and at indieScreen in Brooklyn. The film Battle for Brooklyn captures a community's seven-year fight to stop the use of eminent domain to take their homes and businesses for the construction of a mixed-use development including a basketball arena for the New Jersey Nets and commercial towers. It is a compelling story about the abuse of eminent domain and how this awesome power intended for the public good can destroy a community, literally. We saw the film at a preview screening held at the ALI-ABA Eminent Domain conference in Miami in February. (See our previous posts about the film here and here.)

Since then the film made its world premier at the prestigious Hot Docs Canadian International Documentary Festival in Toronto and won Best Documentary and the Grand Chameleon Award last weekend at the Brooklyn Film Festival. It has received acclaim from the press, property rights advocates, and the general public and truly demonstrates that some things in life are certainly worth the fight.

If you're in NYC this weekend and haven't seen Battle for Brooklyn, yet, check it out. Show times are 1:00, 3:00, 5:00, 7:00 and 9:15 pm Friday, June 17 through Sunday, June 19.

Michigan eminent domain attorney, Darius Dynkowski, discusses the Detroit-Windsor Bridge project

noreply@blogger.com (Owners' Counsel of America) — Tue, 07 Jun 2011 20:38:00 +0000

"View From the Top" Ep. 31 from Specs Howard TV on Vimeo.

In this interview with Dbusiness Magazine, attorney Darius Dynkowski* discusses the procedures and laws of eminent domain with respect to the proposed New International Trade Crossing, also known as the Detroit-Windsor Bridge. He explains what residents and business owners in the footprint of the project site can expect if and when the Michigan Department of Transportation (MDOT) begins acquiring property for this proposed project.

The proposed Detroit-Windsor Bridge would span the Detroit River connecting Detroit, Michigan with Windsor, Ontario with a second toll bridge containing six lanes. The only current international bridge crossing between Michigan and Canada is the 82-year old Ambassador Bridge which contains four lanes and is considered the busiest border crossing between the U.S. and Canada.

While there is opposition to the bridge project, the question of whether the use of eminent domain to acquire the necessary private property to construct the bridge is a genuine public purpose is not the basis for this opposition. If the Michigan legislature passes the proper legislation to enable the State to acquire property for the project, then the question of public purpose will become moot. However, any condemning authority granted eminent domain powers will still need to follow the proper procedures and laws to acquire private property. Further as Mr. Dynkoswki explains in the interview, the condemning authority will need to pay property owners "just compensation" for the acquisition of homes and businesses in the project area near I-75 and Dragoon. For a business owner just compensation can include the costs associated with relocation of the business (including trade fixtures and equipment) as well as compensable losses resulting from the taking of the business property.

Form more details about the Detroit-Windsor Bridge Project see also:

"Darius Dynkowski interviewed Re: Detroit-Windsor bridge," Federal Eminent Domain Blog, 6/5/11

"Michigan Governor Pushes New Detroit-Windsor Bridge," John, D. Boyd, 6/2/11

"It's time to build the bridge," Michigan government press release, 6/1/11

"Former Michigan governors support new Detroit-Windsor bridge," Zoe Clark, 1/28/11

*Disclosure: Darius Dynkowski, a partner with Ackerman, Ackerman & Dynkowski in Bloomfield Hills, Michigan, is the Michigan member of the Owners' Counsel of America. Mr. Dynkowski and the firm focus upon defending private property owners threatened by eminent domain throughout Michigan.

Montana's eminent domain bill HB 198 becomes law without Governor's amendment

noreply@blogger.com (Owners' Counsel of America) — Tue, 10 May 2011 20:30:00 +0000

On Thursday, May 12, Montana Governor Brian Schweitzer allowed Montana House Bill 198 (HB 198) concerning eminent domain to become law. Despite the imbalanced aspects within HB 198 favoring big business over landowners' rights, Gov. Schweitzer chose to not veto the bill allowing it to become law.

In April, Gov. Schweitzer expressed his desire for an expiration date to the bill allowing it to only exist as a temporary measure for 2 years which would allow the Legislature time to work out a more balanced bill. At that time, Schweitzer indicated that he would use an amendatory veto to ask the Legislature to terminate the bill in 2013. Although Schweitzer complained last week that the bill left land owners at a disadvantage, he explained that he would allow the bill to become law in an effort to protect the state's economy. HB 198 has been touted as a "jobs bill" by supporters.

HB 198 expands the power of eminent domain to private utilities constructing "merchant" lines (for-profit, private utility lines). Historically, in Montana public utilities have used the power of eminent domain to condemn private property for public utility projects. HB 198, however, grants the power to condemn private property to private utility companies. Specifically, HB198 was introduced and championed through the Montana Legislature for the purpose of allowing Canadian-based Tonbridge Power to take property for the Montana Alberta Tie Limited (MATL) and NorthWestern Energy to take property for its Mountain States Transmission Intertie (MSTI).

When constructed MATL will be a private "merchant" (for-profit) 214-mile transmission line that spans from Lethbridge, Alberta across Montana ranches, farms and homesteads into Great Falls, Montana allowing the transmission of power between the two markets. The MSTI project will run through Montana property connecting substations in Townsend, Montana and Jerome, Idaho. Energy carried on both the MATL and MSTI line will be largely generated on Montana wind farms for the benefit of out-of-state and Canadian consumers.

Prior to the recent passage of HB 198 and the Governor's decision to let it become law, the MATL project has been on hold as the result of a 2010 court ruling in favor of Montana's private property owners. In December, District Judge Laurie McKinnon opined that “MATL does not possess the power of eminent domain, either express or implied, and it has no authority to take the private property of a nonconsenting landowner.” Judge McKinnon's ruling halted MATL's use of eminent domain to take private property for the transmission line. MATL appealed the case to the Montana Supreme Court. However, the attorney representing MATL filed a motion last week with the Court requesting that the case be returned to the lower court with instructions to enter an order permitting MATL to condemn the property, pursuant to HB 198, which is retroactive.

In the meantime, a grassroots initiative by Concerned Citizens Montana seeks to repeal HB 198 via a citizens' referendum on the 2012 ballot. The initiative seeks to gather enough voter signatures to suspend the law until Montana voters can decide whether to repeal it or allow it remain as law. More information about the referendum initiative is available on CCM's website here.

For more information about HB 198 see also:

Eminent domain bill to become law without Schweitzer's signature
Frustration in Montana
In high-profile case, Montana landowner argues condemnation power must be explicit
Eminent domain expiration date makes sense
Kelo in the Country...HB 198 and the Taking of Rural Property
District Judge denies MATL's claim of eminent domain

Disclosure: Hertha Lund is an attorney in Bozeman, Montana who represents Montana property owners statewide in property rights, water rights and wind energy development matters. Ms. Lund represents a number of landowners throughout Montana currently defending their properties against condemnation, including the Salois family who is the Appellee in the Montana Supreme Court Case with MATL referenced in the above post. Ms. Lund is a member of the Owners' Counsel of America.