Eight Owners' Counsel of America Attorneys Recognized as "Lawyers of the Year"

OCA wishes to congratulate its 8 member-attorneys who have been recognized as 2013 “Lawyers of the Year” by The Best Lawyers in America® 2013 (Copyright 2012 by Woodward/White, Inc., of Aiken, SC). Best Lawyers®, the oldest lawyer-rating publication in the U.S., honors only a single lawyer in each practice area and designated metropolitan community as “Lawyer of the Year,” making this honor particularly significant.

Attorneys honored as “Lawyer of the Year” are selected based upon particularly high voting averages received during the exhaustive peer-review assessments Best Lawyers® conducts with thousands of lawyers each year. Receiving this designation reflects the high level of respect these OCA attorneys have earned among their peers for their abilities, professionalism, and integrity.

Congratulations to the OCA members listed below who have been named in each of the practice areas and metropolitan areas identified.

Toby Prince Brigham
Toby Prince Brigham, PA
Eminent Domain and Condemnation Law
Miami, Florida

Robert Denlow 
Denlow & Henry
Eminent Domain and Condemnation Law
St. Louis, Missouri

Jill S. Gelineau
Schwabe, Williamson & Wyatt
Eminent Domain and Condemnation Law
Portland, Oregon

Warren C. Herlong, Jr.
Helmsing, Leach, Herlong, Newman & Rouse, P.C.
Litigation – Real Estate
Mobile, Alabama

James D. Masterman
Greenburg Traurig, LLP
Eminent Domain and Condemnation Law
Boston, Massachusetts

Dwight H. Merriam
Robinson & Cole, LLP
Litigation – Land Use and Zoning
Hartford, Connecticut

Mark D. Savin
Fredrikson & Byron, P.A.
Eminent Domain and Condemnation Law
Minneapolis, Minnesota

James L. Thompson
Miller, Miller & Canby, Chartered
Eminent Domain and Condemnation Law
Washington, DC

Texas Appeals Court: Property Owner Properly Pled A Valid Inverse Condemnation Claim

Recently, the Texas Court of Appeals, Third District, issued a memorandum opinion in an interlocutory appeal from a trial court's denial of the City's plea to the jurisdiction relating to inverse condemnation claims for flooding.  (A plea to the jurisdiction challenges the court's authority to decide a case.)  In City of Austin v. GHI Investments, LLC f/k/a GHI Partners, LLC, 03-12-00189-CV (Tex. App. April 30, 2013), the court held that property owner/developer GHI, affirmed the trial court's order adverse to the City and held that GHI had properly stated its claim for inverse condemnation.

The issues in the case arise out of a City-approved roadway widening project with bike lane and grocery store project. In its claims for inverse condemnation and nuisance, GHI alleges that those City-approved projects resulted in the flooding of its property. The City argued that GHI's pleadings did not support its claims for inverse condemnation and nuisance and the City, therefore, retained its governmental immunity.  The City contended that GHI did not allege the City “intended in any way for the Property to be flooded." The City further argued that the grocery store project from which GHI was alleging the majority of the flooding resulted was not a public use and therefore GHI had failed to allege that the taking was for public use.

In its response to the city's plea, GHI attached city emails in which City employees, including the engineer assigned to the road widening project, expressed  concern that the existing drainage system could not handle its existing drainage much less additional water from the projects.   The engineer specifically referred to the project as a "'band-aid' solution" and "inadequate to solve the drainage problems in the area."  Despite these concerns, the City permitted the two projects as designed and each project was constructed as designed.  The road project was completed in 2006 and the store grocery project was completed in approximately 2009.  In response to GHI's inclusion of the emails in its response, the City argued that the emails were simply employees expressing concerns about possible issues or demonstrated differences of opinion among City employees.

As OCA Hawaii Member Robert Thomas pointed out in his post concerning this case here, Texas municipalities, like municipal entities in other states, enjoy limited immunity from tort claims, but that immunity has been waived under the takings clause of the Texas Constitution, which includes inverse condemnation claims.  The Texas Court of Appeals held "[t]o plead a valid inverse condemnation claim and establish waiver of immunity under the takings clause, a plaintiff must allege that the governmental agency (1) intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in taking, damaging, or destroying the plaintiff’s property (3) for public use." Slip op. at 9.

The City asserted that, at most, it negligently relied upon assurances the drainage would not be a problem and continued to assert immunity.  The court rejected that argument.  "Construing the pleadings liberally in favor of jurisdiction, looking to GHI's intent, and accepting the allegations in the pleadings as true...we conclude that GHI's pleadings do not complain of the City's negligence or omissions but, instead, assert the essential intent element necesary to state a facially valid takings claim."  Slip op. 11-12.

With respect to the City's argument that the project which caused most of the flooding was not a public use, the court concluded that "GHI has sufficiently  pleaded the public use element of a takings claim and overrule the City's second issue."

City of Austin v. GHI Investments,LLC, No. 03-12-00198CV ( Tex. App. Apr. 30, 2013) by robert_thomas_5

OCA Files Amicus Brief in Support of Wyoming Landowner in "Rails-to-Trails" Takings Case Seeking SCOTUS Review

Today, the Owners’ Counsel of America (OCA) filed an amicus curiae brief in support of the landowner in Marvin M. Brandt Revocable Trust v. United States (12-1173) urging the United States Supreme Court to review a Tenth Circuit Court of Appeals decision in United States v. Brandt, 2012 WL 3935613 (C.A.10 (Wyo.)) which erroneously found that the federal government retained an “implied reversionary interest” in railroad rights of way granted under an 1875 Congressional Act. The Tenth Circuit, contrary to every other court that has considered the issue, held that that the United States, rather than the private landowner, acquired ownership of the land when the railroad was abandoned.

The Tenth Circuit acknowledged a “circuit split” in its opinion, noting a divergence from decisions in the Seventh Circuit, Federal Circuit and Court of Federal Claims all of which concluded the federal government did not have a reversionary interest in railroad rights of way when the underlying land had been conveyed to private owners.  “If the Tenth Circuit’s decision is allowed to stand, similarly-situated landowners across the country will be subjected to different federal rules, based solely on where their land is located.” said Robert H. Thomas, a Director at Damon Key Leong Kupchak Hastert in Honolulu and the Hawaii member of OCA.

The History of the Brandt Case

In 1875, Congress adopted the General Railroad Right-of-Way Act of 1875 (“1875 Act”), 43 U.S.C. §§ 934-939.  The 1875 Act allowed Congress to grant railroads right of way access and through publicly owned lands.  Congress later passed the Act of March 8, 1922, 43 U.S.C. § 912, which permitted the conveyance of title to the land under these railroad rights of way to homesteaders whom the adjacent property had been granted by land patent.  The 1922 Act provided that upon abandonment by the railroad, ownership of the right of way transferred to the private landowner.  In Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942), the Supreme Court clarified that the rights of way granted under the 1875 Act were easements for the limited purpose of railroad use.  In Great Northern and subsequent cases, however, the Court has not provided a specific definition of the term “easement” in the context of the 1875 Act which opened the door to the current litigation.

The Brandt family acquired 83 acres in Albany County, Wyoming by land patent from the U.S. Forest Service in 1976.  The land was bisected by an 1875 Act railroad right of way, later abandoned by the railroad in 2003.  In 2005 under the “Rails-to-Trails” statute (National Trails System Act, 16 U.S.C. § 1241), the Forest Service issued a notice of intent to convert the abandoned railway crossing Brandt’s and neighboring properties into a recreational trail.  This should have triggered Brandt’s claim for compensation under the Fifth Amendment’s Takings Clause, but the federal government then sought to confirm that it —and not Brandt — owned the land. It sued Brandt, seeking a ruling that when the government granted the right of way to the railroad, it retained an implied right to recover ownership if the railroad ever ceased operating (D.Wyo., No. 06cv184). 

Mountain States Legal Fund represented Brandt before the Court of Federal Claims and the Tenth Circuit Court of Appeals.  MSLF also filed the Petition for Certiorari with the Supreme Court (press release here).  More on the procedural history of the case is available on the MSLF website here and here. 

OCA's Amicus Brief - A Summary of the Argument

Robert Thomas prepared the brief on behalf of OCA and was joined by his law partner Mark M. Murakami and Damon Key attorney Bethany C.K. Ace.  The brief's Summary of the Argument is excerpted below.  

Unable to prevail on a variety of theories in rails-to-trails takings cases in the Federal Circuit and the Court of Federal Claims (CFC) for more than a decade, the Government appears to have switched tracks. Instead of continuing its fruitless frontal attacks on these takings claims—efforts that repeatedly have been rebuffed by the courts—the Government in this case has sought to undermine the very notion of property by redefining the “rights of way” granted for railway uses under the 1875 Act from easements that are extinguished when no longer used for a railroad, to “implied reversionary interests.”

This brief makes two points. First, the Government’s strategy to redefine property rights based on the 1875 Act will virtually wipe out an entire class of takings claims without justification. Second, this Court’s decision in Great Northern Ry. Co. v. United States, 315 U.S. 262 (1942)—holding that 1875 Act rights of way are easements—is supported by the common law definition of “right of way” prevailing at the time that the 1875 Act was adopted. In the absence of evidence of contrary intent, statutory terms used by Congress should be interpreted as having the meaning commonly assigned to them at the time. This case presents the Court with the opportunity to provide definitive guidance that terms in a federal statute that are not defined by Congress are not wholly malleable, and OCA respectfully asks this Court to review the important issues raised in the petition.                                                                                        

Because the Tenth circuit's decision created a circuit split and has the result of subjecting similarly-situated landowners across the country to differing federal rules depending upon whether their land is located within the Tenth Circuit's jurisdiction or not, we are hopeful that the Court will grant review.  

For more on Brandt, visit Robert Thomas's blog here, here and here.  

To view OCA's news release dated April 25, 2013, visit here.

Brief Amicus Curiae of Owners' Counsel of America in Support of Petitioners, Brandt v. United States, No. 1... by robert_thomas_5

New Journal of Law and Courts Debuts with a Discussion of the Link Between SCOTUS Takings Jurisprudence and Ideology

The University of Chicago Press and the Law and Courts Section of the American Political Science Association has published the inaugural volume of the new Journal of Law and Courts (JLC).  The JLC is an interdisciplinary, peer-reviewed journal covering a wide-range of topics devoted to the examination of legal institutions, actors, processes and policy.  JLC "aims to be the premier journal for members of the law and courts intellectual community in terms of quality and scope of articles and size and diversity of audience."  

What caught our attention about this new journal was an article by Ohio State University Political Science Professor Emeritus Lawrence Baum.  In "Linking Issues to Ideology in the Supreme Court: The Takings Clause," Professor Baum examines the link between issues and ideology within the Supreme Court by specifically analyzing the Court's takings jurisprudence and justices' votes on takings cases.  

From the abstract:

This article probes explanations for the linkages between Supreme Court justices’ broad ideological stances and their positions in specific issue areas. The justices’ votes in decisions on the takings clause of the Fifth Amendment showed no consistent ideological pattern in the 1937–79 terms but have fallen along clear ideological lines since then. Analysis of relevant evidence indicates that this shift reflected both changes in the content of takings cases and changes in the lineup of political and social groups on takings issues. The shift and its sources suggest a need to rethink the role of the justices’ policy preferences in shaping their choices.

Baum sets the stage for the article with a brief background concerning Kelo and its procedural history.  He writes, "As for the litigants in Kelo, conservative justices might sympathize with an economically troubled city that sought to spur development in conjunction with the initiative of a business corporation. For their part, liberal justices might sympathize with a woman who was far from wealthy and who was in danger of losing a home that she loved, especially with a large company implicitly standing on the other side. Why, then, did the Court’s liberals favor the city and its strong conservatives favor Kelo?"  

The article reviews the Court's takings jurisprudence from 1870 through 2012 giving specific attention to the period between 1937 and 2012.  Baum notes that the Court demonstrated no consistent ideological pattern between 1937 and 1979.  Further, he finds that a change occurred between the 1970 and 1980 in which the Court shifted from having no ideological pattern relating to its takings jurisprudence to "a clear ideological dimension in the justices’ voting."  Baum points to logical and social sources for this ideological shift while also noting that the 1970's brought the beginning of environmental regulation and other policies considered "liberal" which spurred "conservative" challenges in and outside of the Court.      

Baum concludes: "What happened in takings, however, does point to some broader lessons. In conjunction with what scholars have gleaned from some other fields of policy, it demonstrates that the linkages between ideology and issues in the Supreme Court are neither immutable nor simply a product of logical deduction from general premises. Rather, how justices line up on particular issues reflects social and political processes outside the Court." 

The JLC will be published biannually online and in print for a reasonable subscription fee.  The inaugural March 2013 issue, however, is available for free here.     

The JLC is edited by David E. Klein, Associate Professor of Politics at the University of Virginia.

10th Annual Brigham-Kanner Property Rights Prize Recipient Announced: Columbia Prof. Thomas W. Merrill

William & Mary School of Law recently announced that Columbia Law School Professor Thomas W. Merrill will receive the 2013 Brigham-Kanner Property Rights Prize at the 10th annual Brigham-Kanner conference October 17-18, 2013, in Williamsburg, Virginia. 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, the annual B-K conference and the B-K Conference Journal.  

The Conference, Prize and Journal are named in recognition of the lifetime contributions of property rights lawyers and OCA Members Toby Prince Brigham and Gideon Kanner.  The B-K Prize has been presented annually since 2004 to an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights.  

From W&M's announcement: 

Merrill is among the nation's leading scholars of property, administrative, and environmental law, and is the Charles Evans Hughes Professor at Columbia Law School. His books include Property: Takings (with David A. Dana) (Foundation Press, 2002), Property: Principles and Policies (2d ed., with Henry E. Smith) (Foundation Press, 2012), and The Oxford Introductions to U.S. Law (with Henry E. Smith) (Oxford University Press, 2010). His many articles have appeared in publications such as Harvard Law Review, New York University Law Review, University of Pennsylvania Law Review, and Yale Law Journal. 

Merrill holds a B.A., with honors in history, from Grinnell College, and a B.A., with first-class honors in philosophy, politics, and economics, from Oxford University, where he was a Rhodes Scholar. After earning his J.D. at the University of Chicago, he clerked for Judge David L. Bazelon of the U.S. Court of Appeals for the D.C. Circuit and then for U.S. Supreme Court Justice Harry A. Blackmun. After clerking, Merrill practiced at Sidley, Austin, Brown & Wood in Chicago and then served as deputy solicitor general in the Department of Justice, a role in which he supervised Supreme Court litigation. Merrill was the John Paul Stevens Professor of Law at Northwestern University before joining the Columbia University faculty in 2003.

While the Conference schedule and speaker's list has not yet been finalized, OCA Member Robert Thomas reported on his blog here that a tentative list of topics include: 

• The Impact of a Leading Property Scholar: Defining the Essence of Property
• Promoting Government Forbearance
• The Implications of the Court's Recent Takings Cases
• Property Rights in Times of Transition.

Conference Co-Chair Joseph T. Waldo, the Virginia member of OCA and a 1978 graduate of William and Mary School of Law, said the annual conference provides a vital and unique forum in which members of the practicing bar and members of the academy can meet and exchange viewpoints in a constructive environment. "The conference's upcoming tenth year anniversary gives us cause to celebrate past advancements while continuing to focus on how the security of property rights is changing our world," he said.

For details about the conference schedule and participants, contact the William & Mary Property Rights Project at lsdevl@wm.edu or call (757) 221-3796.

Alabama's New "Jobs" Law: Two Steps Backward For Property Rights

Last month Alabama Governor Robert Bentley signed into law SB96, titled the "Major 21st Century Manufacturing Zone Act."  The law allows any Alabama city to create a “manufacturing" tax increment financing, or TIF, zone for a number of industries including automotive, aviation, medical, pharmaceutical, semiconductor, computer, electronics, energy conservation, cyber technology and biomedical but requires any municipality wishing to create a TIF zone under the law to invest at least $100 million on a site larger than 250 contiguous acres.

Tax increment financing (TIF) is a method of subsidizing improvements today by using the hypothetical tax revenue increases a redevelopment project might bring in the future.  TIF creates opportunities to finance debt incurred to construct a project by borrowing against the anticipated future increases in property tax revenues.  By establishing TIF districts, municipalities can borrow money to purchase land, construct improvements such as roads, sewer and water lines and, in Alabama, construct “21 Century Manufacturing” facilities.

In response to criticism (recently retracted here) suggesting that the law expands eminent domain in favor of private redevelopment, the law’s supporters have said that it is designed to attract high-tech manufacturing jobs to the state rather than give cities greater eminent domain powers.  Yet, as was pointed out here, this law reverses the position Alabama took in 2005 in response to Kelo when a bipartisan effort enacted legislation protecting private property owners and rejecting the use of eminent domain for private development unless the property posed a true threat to human health and safety.  One step forward, 2 steps back...   

Proposed Legislation Seeks to Amend New Jersey's Redevelopment Law Limiting the Abuse of Eminent Domain

New Jersey has taken one step forward toward updating its redevelopment laws and enacting legislative protections for private property owners.  Earlier this month the New Jersey Senate Community and Urban Affairs Committee advanced legislation that would be the first update to the state’s eminent domain laws since the landmark U.S. Supreme Court decision Kelo v. City of New London, 545 U.S. 469 (2005), in which the Court ruled that the use of eminent domain for economic development is permitted under the "public use" provision of the 5th Amendment.  

Since Kelo, 44 states have enacted legislative reform to protect private property ownership, curb the abuse of eminent domain and clarify the "public uses" for which property may be condemned.  Senate Bill 2447 (S2447) seeks to amend New Jersey's Local Redevelopment and Housing Law (LRHL) by codifying certain property owner protections decided in NJ court decisions since Kelo and by providing a negotiation alternative to condemnation for local redevelopment projects.

If enacted this legislation would establish separate requirements for redevelopment projects involving condemnation versus those projects that would not involve eminent domain.  The bill provides additional protections for property owners who may be faced with condemnation due to a proposed redevelopment project while creating a streamlined process for local governments desiring to initiate redevelopment projects without employing condemnation powers.  

S2447 codifies Gallenthin Realty Development Inc. v. Paulsboro, 191 N.J. 344 (2007), in which the New Jersey Supreme Court clarified one of the statutory criteria that must exist in order for an area to be determined in need of redevelopment and emphasized that the use of eminent domain cannot be justified to acquire property solely upon the basis that it is underutilized, unless the property otherwise meets the criteria for blight.

The bill also seeks to amend the LRHL by codifying Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), which addresses the issue of due process and adequate notice to property owners.  In DeRose an appeals court opined that a municipality must provide adequate written notice of condemnation for the purpose of redevelopment during the planning process.  S2447 would require municipalities to advise property owners within a proposed redevelopment area of the municipality’s intention to use or not use eminent domain to facilitate a redevelopment plan at the outset of the investigation and provide specific notice of such designation.

S2447 advanced to the Senate Budget and Appropriations Committee for consideration with amendments while a companion bill, A3615, was considered by and reported out of the Assembly Economic Development and Commerce Committee with similar amendments. The added amendments clarified that the legislation would not reach back retroactively to prohibit condemnation in an area determined to be in need of redevelopment prior to enactment and that the enhanced notification provision would not apply to designation made within 90 days of the bill's passage.

We applaud OCA New Jersey Member Anthony Della Pelle for his participation with the committee that authored the initial version of the bill and worked to have it introduced in the legislature.  

We'll continue to track this legislation as it moves through both houses and report back as new developments arise.