Friday, December 19, 2014

OCA's Amicus Brief Asks: Can the Most Important Evidence in an Eminent Domain Trial be Withheld From a Jury?

This week we filed an amicus curiae brief in support of Virginia Beach homeowners, James and Janet Ramsey, in Ramsey v. Commissioner of Highways, Record No. 140929 (review granted November 3, 2014), a case we previously discussed here.  

In this eminent domain case, the Virginia Department of Transportation presented testimony at trial that was much lower than the DOT's initial offer and pre-offer statements of value.  The trial court refused to admit any testimony related to the earlier higher statements of value. As a result, the jury did not hear the original value the DOT offered for the property. 

OCA's brief questions whether the jury can be kept in the dark about the most important evidence in an eminent domain trial – the value of the private property taken. The brief focuses upon two arguments.  First, the duty of the government in an eminent domain action must be to seek justice and develop a full and fair record upon which a jury may consider the just compensation to be awarded to a property owner whose land has been involuntarily taken for public use.  Second, the statement of just compensation required by Va. Code § 25.1-204(E)(1) is a legislatively-mandated statement requiring factual documentation as to the government’s financial liability to a landowner in an eminent domain proceeding which the jury must be allowed to consider, not an inadmissible offer to compromise.  
 
“In this case, the trial court erred by concluding that the Commissioner’s statutorily-required statement of just compensation was merely an offer to settle the dispute over purchase price rather than the required good faith statement and appraisal of value required by Virginia statute,” said Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii representative of OCA.  “If affirmed, the tactics employed in this case by the Commissioner and Department of Transportation will not only be an injustice upon the Ramseys but will serve as a template for future systemic undercompensation in eminent domain actions across Virginia.”

OCA urges the Virginia Supreme Court to reverse the judgment of the Virginia Beach Circuit Court and remand the case for a new trial to determine the amount of just compensation required pursuant to the U.S. and Virginia Constitutions.  If VDOT's abusive tactics are allowed to stand, the property rights of all Virginians are at risk.   

For more commentary about the case visit here.  OCA's press release is available here.  

Tuesday, November 11, 2014

Amici Brief Asks Supreme Court to Confirm that Property Rights Are Fundamental Rights Deserving Constitutional Protection

November 11, 2014 -- The National Federation of Independent Business (NFIB) Small Business Legal Center, Cato Institute, Rutherford Institute and Owners’ Counsel of America (OCA) have joined together in filing an amici brief urging the U.S. Supreme Court to grant review of the Eleventh Circuit’s decision in Kentner v. City of Sanibel, No.13-13893 (May 8, 2014) (Supreme Court Docket No. 14-404). In the brief supporting the Plaintiff-landowners, OCA and its fellow amici ask the Supreme Court to confirm that the constitutional guarantee of due process protects private property rights from government confiscation or revocation and to ensure that property owners nationwide are not deprived of “life, liberty or property, without due process of law.”

“The Eleventh Circuit concluded in Kentner that a property owner’s riparian rights, although recognized by the State of Florida as property rights, are not considered as ‘fundamental’ rights under the U.S. Constitution so that they are protected by the Fourteenth Amendment’s Due Process Clause,” said Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu.

“In holding that the city’s ban on the construction of docks and piers was not subject to federal due process protections, the Eleventh Circuit held that a ‘state-created’ right is somehow not deserving the same level of due process protection as a ‘fundamental’ right,” explained Thomas, who signed on the brief as the Hawaii representative of the Owners’ Counsel of America.

The case revolves around Ordinance 93-18 enacted by the city of Sanibel, Florida in September 1993 purportedly to protect seagrasses growing on the submerged lands of the Bay Beach Zone an fronting San Carlos Bay. The ordinance prohibited the construction of new docks and piers within the Bay Beach Zone. Plaintiffs purchased properties in this zone after the ordinance was adopted. Because they own waterfront property bordering the high tide line, Plaintiffs possess riparian rights - rights to access the water, including "reasonable docking rights."

Plaintiffs challenged the law in state court on the grounds that it violated their rights to due process and did not substantially advance a legitimate state interest. The city removed the case to federal court which dismissed the complaint concluding that riparian rights are based in state law and are not "fundamental" rights protected by the U.S. Constitution. The Eleventh Circuit Court of Appeals affirmed holding that “there is generally no substantive due process protection for state-created property rights."

“The decisions of the federal district court and Eleventh Circuit are clearly troubling in that property rights, whether so called ‘state-created’ or ‘fundamental,’ are not given the protection under federal law when the facts suggest that the due process clause of the Fourteenth Amendment is violated,” said Andrew Brigham, managing partner of Brigham Property Rights Law Firm, PLLC and the Florida representative of OCA. “By excluding property rights from the substantive protections of due process, the Eleventh Circuit is setting a precedent based upon a false premise that must be challenged.”

Coauthored by Professor Ilya Somin of George Mason University School of Law and Luke Wake of the NFIB Small Business Legal Center, the amici brief of the NFIB, Cato Institute, Rutherford Institute and Owners’ Counsel of America argues that the decision of the Eleventh Circuit goes against the text of the Fourteenth Amendment, its original meaning, and longstanding precedent. Furthermore, the brief contends that the Eleventh Circuit’s arbitrary distinction between “legislative” and “executive” acts that infringe on property rights is at odds with Section 1 of the Fourteenth Amendment which specifies that “no State” is permitted to violate the Due Process Clause, regardless of which branch of state government happens to be the violator.

“OCA joined the NFIB, Cato Institute and Rutherford Institute as amici in this case to urge the Supreme Court to step in and confirm that property rights deserve due process protection and ensure that all Americans are not deprived of ‘life, liberty or property, without due process of law’,” Brigham stated.

More commentary about this case is available at the following links:

Amici Brief Asks: Aren't Property Rights "Fundamental" Rights? - Robert Thomas

Our amicus brief on Due Process Clause protection for property rights - Ilya Somin

Rutherford Institute Asks U.S. Supreme Court to Protect Property Rights - The Rutherford Institute

Yes, Florida, the Constitution Protects Property Rights - Ilya Shapiro & Trevor Burrus, Cato Institute

Thursday, September 25, 2014

Join Us at the 11th Annual Brigham-Kanner Property Rights Conference in Williamsburg, Virginia

With the official arrival of Fall, we are reminded that the 11th Annual Brigham-Kanner Property Rights Conference is just around the corner - October 30 & 31, 2014 at William & Mary Law School, Williamsburg, Virginia.  As previously announced, this year's Brigham-Kanner Property Rights Prize will be awarded to Michael M. Berger, a partner with the Los Angeles Office of Manatt, Phelps & Phillips.  Mr. Berger is the first practicing attorney to receive the prize.  Nine of the previous recipients are law profs and one retired Supreme Court Justice Sandra Day O'Connor.  (Click here for a list of past recipients).  [Mike Berger is an attorney affiliated with Owners' Counsel as an Honorary Member.]

Details concerning the schedule, discussion topics and speakers is available online here, a copy of the brochure is here.  You may also contact William & Mary Law School at (757) 221-3796.

If you've never visited Williamsburg, please consider joining us.  It is a city rich in history and is gorgeous in the Fall.  Check out some of the photos we posted during our trip last year here.

We hope to see you there.

Special thanks to Robert Thomas for uploading a copy of the post card below.

Tuesday, August 26, 2014

$8.1 Million Eminent Domain Award Affirmed by New York Appellate Court

Last week, the New York Appellate Division, Second Department, affirmed a condemnation award of $7,855,200 plus interest for just compensation to Split Rock Partnership for the taking of its property. In Matter of Western Ramapo Sewer Extension Project, Index No. 2013-03693, 2014 NY Slip Op 05889, decided August 20, 2014, the appellate court held that the measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time of the taking.

Split Rock owned 64 acres of vacant land in the Village of Hillburn, Rockland County, New York. In November 2004, Split Rock entered into a contract for sale to sell the property to developer, Wilder Companies.  The sale was never completed as Rockland County Sewer District No. 1 acquired the subject property using its power of eminent domain in February 2005 to construct a new sewer processing facility.

The Court concluded that Split Rock satisfied its burden of demonstrating that the highest and best use of the property was for the commercial development of an office center and that the trial court had properly considered the "unconsummated Wilder Contract" for sale as admissible evidence of the subject property’s value. The Court also noted, that Split Rock's knowledge of the potential condemnation prior to executing a contract for sale of the property did not demonstrate that Split Rock acted in bad faith or simply to inflate the value of the property.

Additionally, the appellate court held that the Supreme Court correctly exercised its discretion in preventing two of the Sewer District’s witnesses from testifying at trial because the District failed to comply with the court rules requiring the timely disclosure of expert witnesses. Remember friends as we've learned from our late night viewing of Law & Order, the "Supreme Court" in New York refers to the trial court and the "Court of Appeals" refers to the state's highest court.  

The case was tried and appeal argued by OCA New York Member Michael Rikon, a partner of Goldstein, Rikon, Rikon & Houghton, P.C., a law firm founded in 1923 which limits its practice to the representation of private property owners in eminent domain matters.

Read the firm's press release about the decision here.

Tuesday, August 19, 2014

A Mississippi Jury Awards Bayfront Restaurant Owners $644K Just Compensation in Inverse Condemnation Action Against the State

The view from the back of Dan B's busy restaurant overlooking the deck and Bay St. Louis before Hurricane Katrina.
On August 29, 2005, Hurricane Katrina destroyed Dan B’s Restaurant and Bar on Beach Boulevard in downtown Bay St. Louis, Mississippi.  The popular beach front restaurant owned by the Murphy family featured a large deck on the beach overlooking the Bay of St. Louis.

Dan B's deck and restaurant as viewed from the water's edge the day before Katrina made landfall (Aug. 28, 2005).
After the storm, a new small boat harbor was included as part of the redevelopment plan for the downtown area by the City of Bay St. Louis and the State of Mississippi. An access ramp and parking facilities for the new harbor were planned on property owned by the Murphy’s and several other downtown property owners.  The State of Mississippi, however, claimed the land was public tidelands of the State of Mississippi.  Construction began on the project and no compensation was paid to the Murphy family for their property.

Brothers Kenneth, Ray and Audie Murphy sought out an experienced eminent domain and property rights attorney to assist them in their legal claims against the government.  They retained OCA Mississippi Member Paul R. Scott of the firm of Smith, Phillips, Mitchell, Scott & Nowak, LLP to file an inverse condemnation suit on their behalf.

Trial began on Tuesday August 12, 2014 in Hancock County, Mississippi.  On Monday, August 18, the jury returned a verdict in favor of the Murphys and against the State of Mississippi in the amount of $644,000.00 for the taking of their property.  The State never made an offer of compensation for their property.

The view from the Murphy property in the "after condition" as construction was ongoing on the harbor (background) and access bridge (foreground). 
The case is Murphy v. State of Mississippi, et. al., Cause No. 12-0453 in the Circuit Court of Hancock County, Mississippi.

*Updated 8/20/14 to include the images above of the Murphy property involved in this inverse condemnation action.

Wednesday, August 13, 2014

OCA & NFIB Join Forces in Support of Private Property Owners in Texas and Nationwide

In July, the National Federation of Independent Business (NFIB) Small Business Legal Center and Owners’ Counsel of America (OCA) joined together to file an amici curiae brief  (copy embedded below) in support of the property owner in State of Texas v. Clear Channel Outdoor, Inc., case number 13-0053, urging the Texas Supreme Court to uphold the award of just compensation to a billboard owner when the land on which its billboards were located was acquired by eminent domain.

The case involves the condemnation of two parcels of land along Interstate 10 leased by Clear Channel Outdoor for its billboards. The state exercised its power of eminent domain to take land for a road expansion project.  It refused, however, to condemn and pay for the billboards located on the land arguing that the billboards were personal property, not "realty," and could simply be relocated. The State ordered their removal and the billboards were damaged during the removal. The owner, Clear Channel Outdoor, filed an inverse condemnation action to recover just compensation for the taking of its billboards.  [Disclosure: Clear Channel Outdoor is represented in this action by OCA Texas attorney H. Dixon Montague.]

At the center of the litigation are two questions: whether the billboards are improvements to the property and must be paid for, and whether the government should compensate an owner for structures removed or damaged when the government condemns the underlying land for a public project.  The trial court opined that billboards are not moveable personal property but rather realty as they are affixed to the land.  Further, the court concluded that the State should have condemned and paid just compensation to the owner.  The Texas Court of Appeals upheld the trial court's order and the State of Texas appealed to the Texas Supreme Court.

“As a baseline principle of federal law, the government cannot avoid its obligation to pay compensation under the Fifth Amendment when it invades, destroys, or physically appropriates private property, which it certainly did here” explained Robert H. Thomas, a Director with Damon Key Leong Kupchak Hastert in Honolulu.  Thomas, the Hawaii member of OCA, worked with NFIB attorney Luke Wake in drafting the brief.

The brief filed by OCA and the NFIB argues that billboards are not designed to be moved and that the most valuable part of a billboard is not the materials from which it is made, but rather its ability to generate income. In view of this reality, the brief stresses two points. First, the trial court and the Court of Appeals both correctly concluded that the State must compensate the owner when it orders a billboard removed if the billboard was previously affixed to the ground, or if removal results in damage or destruction of the billboard. Second, the “income capitalization approach,” which takes into account the billboard’s ability to generate income, is required by the Just Compensation Clause of the federal and Texas constitutions, which require the "full and perfect equivalent" of the property taken. In those circumstances, just compensation owed the owner must account for future income.

OCA was honored to join with the NFIB as amici in this case because the question before the Texas Supreme Court requires the Court to consider fundamental principles applicable in all eminent domain cases where property valuation is at issue which is of concern not only to commercial billboard owners in Texas, but all property owners in the state and nationwide.

The Texas Supreme Court will hear oral argument on September 17, 2014.

More on the case from Robert Thomas including links to all briefs filed with the Texas Supreme Court is available here and here.

Read NFIB's statement on the case here.