Thursday, July 17, 2014

Georgia Supreme Court Victory for Private Property Owners

Last week, the Supreme Court of Georgia issued an opinion in Dillard Land Investments, LLC v. Fulton County, Georgia, case No. S13C1582 (decided July 11, 2014) resulting in a ruling both favorable to the Petitioner-landowner and property owners across Georgia.  The unanimous opinion reversed a Georgia Court of Appeals decision, reinstated a $5,187,500 award of just compensation for the Petitioner and insured that equity remains in Georgia's eminent domain proceedings.

This case involves the taking of private property by the County of Fulton under Georgia’s special master method for condemnation proceedings pursuant to O.C.G.A. § 22-2-2.  Under this method, a special master is appointed to hear testimony relating to the value of the property taken by eminent domain and determines the amount of just compensation to award a property owner for the property acquired.  The purpose of the special master method is "to quicken and simplify the condemnation proceeding..." (O.C.G.A.22-2-107 (g)).

In the Dillard case, the special master filed an award with the trial court which then entered a judgment adopting the award.  Fulton County filed a voluntary dismissal of the condemnation petition two days after the entry of the judgment.  Dillard responded by filing an emergency motion to vacate and set aside the voluntary dismissal, which the trial court granted.  Neither party appealed for a de novo jury determination of value.  On interlocutory appeal by Fulton County, the Georgia Court of Appeals reversed the trial court’s order setting aside the voluntarily dismissal.

The Georgia Supreme Court found that the appellate court erred in allowing Fulton County to unilaterally dismiss a condemnation action after entry of the special master’s award of compensation.  The Court concluded that the relevant event determining the time at which a voluntary and unilateral dismissal by the government is no longer allowable “is when the condemnor knows what the value award will be.”  In the Dillard case, that event occurred before the County moved to dismiss the action.

OCA previously filed an amicus brief in this case urging the Supreme Court to overturn a Court of Appeals decision which permitted Fulton County to unilaterally dismiss a condemnation suit after learning the amount of just compensation awarded to the landowner following a valuation hearing before a special master. Charles L. Ruffin, a shareholder with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC and the Georgia representative of OCA filed the brief on behalf of OCA.  OCA's brief argued that, if the appellate decision became final it would unfairly disadvantage property owners in eminent domain proceedings by allowing condemnors the opportunity for a “do-over” if the condemnor was dissatisfied with a special master’s award.

“The Georgia Supreme Court affirmed that no condemnor should have an inequitable advantage over individual landowners," said Ruffin. "Had the Court of Appeals decision been allowed to stand, condemnors would have effectively been given two shots at trying a condemnation case.”

“The Dillard decision is a victory for Georgia property owners and insures that condemnation proceedings remain fair and equitable for landowners throughout Georgia.”

Wednesday, June 11, 2014

Church Fights Back Against City's Eminent Domain Suit

Members of the congregation of Faith Deliverance Temple in front of the church building the City of Orlando hopes to take by eminent domain for the construction of a new MLS soccer stadium in Downtown Orlando.
For nearly a year, the City of Orlando has attempted to negotiate a voluntary acquisition of property owned by a small community church in downtown Orlando, Faith Deliverance Temple. The City of Orlando wants to build a multi-million dollar sports and entertainment arena on the very spot this church stands, only a stone's throw from the Amway Center, home of the Orlando Magic, and a mile from the Citrus Bowl.  

Why, you might ask, does Orlando need another sports stadium?  The City of Orlando's Petition argues that the stadium is a necessary public project that will bring jobs, tourism and economic development to the area.  Is this, however, a true public purpose?  

Florida’s eminent domain laws are codified in Article X, §6 of the Florida Constitution and in Chapters 73 and 163 of the Florida General Statutes.  Following the infamous 2005 U.S. Supreme Court decision in Kelo v. City of New London, 545 U.S. 469, the Florida Legislature acted quickly to provide greater protections for property rights.  

First, the Legislature drafted a constitutional amendment which was passed by 69% of Florida voters on November 7, 2006.  Article X, §6 of the Florida Constitution was amended to require a three-fifths vote of the membership of both houses of the Legislature to approve any exception to Florida's eminent domain laws, specifically before eminent domain could be used to convey private property from one private entity to another.

The Legislature also amended Chapter 73 and 163 of the Florida Statutes (House Bill 1567, signed into law in 2006) to limit the opportunities for government abuse of the power of eminent domain.  Section 73.013, specifically, prohibits the transfer of private property acquired by eminent domain to another private entity listing only a few exceptions:  utilities, common carriers, entities providing public works infrastructure, road rights-of-way, or leases of incidental portions of otherwise public spaces.        

“When the City of Orlando initially approached my family to negotiate a voluntary acquisition of the church’s property, we resisted because we did not want to sell.  However, the City informed us that we wouldn’t have a choice as it would be using its eminent domain power to take the property,” said Jonathan Williams, son of the church’s founders. 
“When it became apparent we wouldn’t reach an agreement with the City, we made inquiries about how we might fight off eminent domain. We hired attorney Andrew Brigham and made our decision to defend the church's property rights.  We would rather stay on the property and continue to use it for our church, than have it taken,” he added.

“Faith Deliverance Temple may have been a willing seller in a voluntary acquisition at a certain price,” said attorney Andrew Prince Brigham. "However, because the City was not willing to transact at that price, the church wants to defend against the City’s use of eminent domain.” [Disclosure:  Andrew Brigham is the Florida member of Owners' Counsel of America.]

Brigham added, “The City’s proposed taking is not for a public purpose.  The City is simply a conduit for eminent domain to take from one private entity, a church, and transfer the use of the property to another private entity, a soccer franchise.  The Constitution of the State of Florida and Florida’s Eminent Domain Code were amended in 2006 to prohibit such an abuse of power.”

Brigham noted that the City did not seek approval of the Florida Legislature before it filed its eminent domain petition nor did the Legislature list sports franchises or stadiums as exceptions to the prohibition against private transfer.   

“While it may be that a new MLS franchise and soccer stadium will do tremendous things for Orlando, the City must use other means than exercising its eminent domain power to acquire the property owned by Faith Deliverance Temple,” said Brigham.

“The City’s Memorandum of Understanding and Facility Use Agreement with Orlando Sports Holdings, LLC, the MLS franchise, is prima facie evidence that the new stadium is less about the City’s ownership or control and more about the soccer club’s ownership or control.” he said. “It’s a classic example of the tail wagging the dog.”

The church, through its counsel, released a statement announcing that its leaders have retained Brigham Property Rights Law Firm and Shannon Keith Turner, P.A. to defend the church’s property rights against the City's use of eminent domain.

The case is City of Orlando v. Faith Deliverance Temple Inc., et al, case number 2014-CA-005081-O, filed May 15, 2014 in the Circuit Court for the Ninth Judicial Circuit, Orange County, Florida.  

This will be one to watch.

Monday, June 9, 2014

New Blog: "Property Rights Montana"

Owners' Counsel of America member-attorney Hertha Lund and members of her firm, Lund Law, PLLC, have launched a new blog, "Property Rights Montana."

The blog will focus on issues facing Montana landowners including private property rights, state and federal agency overreach, eminent domain, and water rights.

Check out a recent post "From Lies to Truth: Why the CSKT Water Rights Compact is Good for Montana" with a link to Hertha's white paper of the same title presenting factual information about the CSKT Compact and likely impacts to people living on and off the reservation should the state fail to approve the negotiated settlement.  (CSKT refers to the Confederated Salish and Kootenai Tribes.)  

Monday, May 5, 2014

Koontz Wins Again - Unconstitutional Exactions Are Still Unconstitutional and Money Remains Private Property Deserving Constitutional Protection

Last week, Florida’s Fifth District Court of Appeal once again ruled in favor of Coy Koontz, Jr. in the case concerning his late father's regulatory takings claim against the St. Johns River Water Management District.

In St. Johns River Water Management District v. Koontz, No. 5D06-01116 (Apr. 30, 2014) the Fifth DCA held that the Koontz family is entitled to damages under Florida law for the temporary taking of the family’s property for the time that the Water Management District's unconstitutional demands, which Koontz refused, denied use of the property.  Last June, the United States Supreme Court held that the Water Management District’s exaction was an unconstitutional permit condition that evaded the long standing land-use doctrines established in  Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994).

The Fifth DCA's opinion in short and can be summed up in this excerpt below:
Because our decision in Koontz IV is entirely consistent with the decision of the United States Supreme Court, we adopt and reaffirm Koontz IV in its entirety and affirm the judgment below. We deny Appellant’s request to reopen the briefing. The constitutional issues decided by the United States Supreme Court were fully briefed here, and that Court’s holding does not set forth a new legal construct with which we must re-analyze these issues. To the extent that Appellant seeks to brief the state law issues left open by the Supreme Court, we conclude that those issues were either disposed of in Koontz I or Koontz IV, or they were not preserved and presented in those proceedings.
Slip op. at 3 (footnote omitted).

Justice Griffin dissented arguing that nothing was really “taken” from Koontz that would require the payment of just compensation under the Fifth Amendment, coming to a similar conclusion as that handed down by the Florida Supreme Court in 2012 and subsequently overturned by SCOTUS.  However, as Paul Beard of the Pacific Legal Foundation, the attorney and firm that represented Koontz before the US Supreme Court and again in these remanded proceedings, points out here the dissent misunderstands the purpose of the Florida statute providing for damages in such cases:  “The family’s injury lies, not in the taking of its money, but in the years of lost use of its property.  It is that injury that the Florida statute redresses…”.

As our friends and fellow bloggers Gideon Kanner (here) and Robert Thomas (here) have noted, this decision marks the fifth Koontz opinion from the District Court of Appeal and the eighth appellate decision over a nearly 20-year legal battle between the St. Johns Water Management District and the Koontz family.
While we believe the legal issues posed by Koontz (all 8 of 'em) have been settled by SCOTUS and this most recent appellate decision, whether or not the litigation will end is unknown.

Monday, April 14, 2014

California Property Rights Attorney & Scholar Michael Berger to Receive 11th Annual Brigham-Kanner Property Rights Prize

Michael M. Berger will receive the 2014 Brigham-Kanner Property Rights Prize October 30, 2014.  He is the first practicing attorney to receive the Prize.
Today William & Mary Law School and the William & Mary Property Rights Project announced that accomplished property rights lawyer, scholar, and teacher Michael M. Berger will receive the 2014 Brigham-Kanner Property Rights Prize October 30-31, 2014 at the 11th Annual Brigham-Kanner Property Rights Conference in Williamsburg, Virginia. [Disclosure: Mike Berger is a property rights attorney affiliated with the Owners' Counsel of America as an Honorary Member.]

The Brigham-Kanner Property Rights Conference is sponsored by the William & Mary Property Rights Project which seeks to promote the exchange of ideas between scholars and members of the property rights bar through lectures, this annual conference and the Brigham-Kanner Conference Journal.  The Conference is named in recognition of the lifetime contributions of Toby Prince Brigham, Florida attorney, and Gideon Kanner, appellate attorney and professor of law emeritus at Loyola Law School.

Each year the Property Rights Project presents the Brigham-Kanner Property Rights Prize to an individual whose work affirms that property rights are fundamental to protecting and preserving individual liberty.  Mike Berger is the first practicing lawyer to receive the prize.

Berger is a partner with Manatt, Phelps & Phillips, LLP in Los Angeles and is co-chair of Manatt's Appellate Practice Group. He is not only one of the country’s preeminent appellate lawyers, but also one of the nation’s top condemnation and land use attorneys. Mike has argued before numerous appellate courts, including throughout California, the federal courts of appeal, other state supreme courts and the United States Supreme Court.   He has appeared as counsel of record arguing on behalf of property owners before the U.S. Supreme Court on four occasions in these well-known property rights cases: Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), City of Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), Preseault v. ICC (1990) and First English Evangelical Lutheran Church v. County of Los Angeles (1987).

In addition to his many scholarly publications on takings and property rights, Mike has authored amicus briefs in some of the landmark property rights cases of our time, including Kelo v. City of New London (2005), Lingle v. Chevron USA, Inc. (2005), San Remo Hotel v. City & County of San Francisco, 545 U.S. 323 (2005), Lucas v. South Carolina Coastal Council (1992) and Nollan v. California Coastal Commission (1987).

The Conference will take place over two days beginning with the award ceremony on Thursday night in the historic Wren Building, the oldest building on the William & Mary campus and oldest college building in the United States.  The Conference continues on Friday at William & Mary Law School with panel discussions focused on property rights, property law and takings law as well as a panel devoted to exploring the impact of the Prize recipient's scholarship.  (You can read coverage of past Brigham-Kanner Conferences on this blog here.)

At this time, a list of panelists and a conference schedule have not yet been posted.  For more details about the conference and how to participate, please contact the William & Mary Property Rights Project at or call (757) 221-3796.

Friday, April 11, 2014

Missoula Files Condemnation Suit to Take Privately-held Mountain Water Hoping the Second Time Will be the Charm

Mountain Water's "Water Wagon" pictured at the Big Sky Science Circus.
Picture from Mountain Water's website:
Last week the City of Missoula, Montana filed suit in District Court seeking "a judicial determination entitling it to acquire by eminent domain Missoula’s privately-owned water supply and distribution system" - Mountain Water Company. The City has sought to purchase the utility from its parent company, the Carlyle Group for some time, however, the City's most recent offer of $50 million and previous offer of $65 million were both rejected.  Unable to coax Carlyle into to becoming a willing seller, Missoula filed a condemnation action to take the utility by eminent domain.

Missoula has ventured down this path once before and came up short.  In 1984, Missoula sought to acquire Mountain Water from its owner via condemnation.  After a 5 year legal battle, the Montana Supreme Court ruled against Missoula opining that the taking was not necessary to the public interest.  
“Since this property is already a public utility, and hence to some degree dedicated already to a public use, it is not more necessary the city take over its operation. The public interest will be best served by the city not being permitted to condemn Mountain Water.”  
City of Missoula v. Mountain Water Co., 88-148 (Mont. 1989).
Montana law requires that public entities show “by a preponderance of the evidence that the public interest requires the taking” in order for the power of eminent domain to be used.  Additionally, the public body must demonstrate that:

• The property's use will be a public use.

• The taking is necessary to the public use.

• If already used for a public purpose, the public use proposed is more necessary.

• A written offer for the property was submitted and rejected.

Missoula Mayor John Engen has been quoted as saying that the benefits of the City owning the water system are worth the risk of a long and expensive legal battle with the Carlyle Group, which has vowed to vigorously defend its rights.  However, the question remains - Can Missoula convince the District Court that the public interest will best be served by the City owning and running the utility?  

Michigan eminent domain attorney Alan Ackerman pointed out in his blog here that the allegations in Missoula's Complaint seem to suggest that the basis for acquiring the privately-owned utility is premised more upon the fact that the current owner is a private equity firm rather than the necessity of the taking. Ackerman explained to the Missoula Independent: “I’m not so sure they can justify a real reason other than the fact they want it and the other guy’s got it.” 

Another interesting point Ackerman makes: "If investors and privately-owned public utilities read the Complaint, Montana communities may find themselves with no private investors who will fund infrastructure improvements in the State."  Should investors respond to Missoula's actions as they have to the actions of Richmond, California which seeks to condemn underwater mortgages, Missoula may have a difficult time raising the funds needed to acquire Mountain Water through the issuance of tax-exempt municipal bonds.  

Stay tuned, only time will tell...

Friday, April 4, 2014

OCA Welcomes New Colorado Member, Jack Sperber

Jack Sperber, a partner in the Denver office of Faegre Baker Daniels, joins OCA as the Colorado attorney-member.
We are pleased to announce that Jack Sperber, Esq., a partner in the Denver office of Faegre Baker Daniels, has been selected as the Colorado representative of the Owners’ Counsel of America.  Jack succeeds his former partner, Leslie Fields, Esq., who retired from the practice of law at the end of March. Leslie will continue to be affiliated with OCA as an Emeritus Member.

Jack Sperber focuses his practice on eminent domain and real estate litigation. He has significant experience litigating complex and high-value cases, having secured many multi-million dollar awards and settlements on behalf of his landowner clients.  Throughout his career, he has been involved in virtually every major public project in Colorado, including highways, airports, light rail infrastructure, electric transmission lines, pipelines, and redevelopment projects. He also counsels national corporations on condemnation issues affecting them in Colorado and around the country.

We are thrilled to welcome Jack as the Colorado representative of OCA and look forward to collaborating with him in the future.  To learn more about Mr. Sperber's professional accomplishments, please click here or read our announcement here.

And, we tip our hat to Leslie Fields, an accomplished eminent domain attorney, published author, national speaker, former co-chair of the American Law Institute "Eminent Domain & Land Valuation Litigation" course, and founding member of OCA.