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.

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.