Owners' Counsel of America - a network of experienced eminent domain attorneys serving property owners nationwide and defending the constitutional right to own private property.
In Tuesday's election, Texas voters overwhelmingly voted in favor of Proposition 11, a constitutional amendment limiting the state's eminent domain powers. Prop 11 (H.J.R. 14, Article 1) limits the use of eminent domain for public use and specifically defines "public use" to specifically not include "the taking of private property for...transfer to a private entity for the purpose of economic development or enhancement of tax revenue purposes." (See "Analyses of Proposed Constitutional Amendments", the Texas Legislative Council, pps. 27, 57-60.)
Although Prop 11 was supported by 81% of voters and backed by the Texas Farm Bureau, Governor Rick Perry and many other Texas politicians, some have argued that Prop 11 does not go far enough to strengthen private property rights and to curb eminent domain abuse. The President of the Texas Farm Bureau called the passage of Prop 11 "an important but incomplete victory" and argued that Texas eminent domain laws continue to favor the condemning authority. While, Senator Kay Bailey Hutchison called yesterday's vote a "first step" toward strengthening private property rights in Texas.
Texans Uniting for Reform and Freedom (TURF), a pro-private property and anti-toll organization, have argued that Prop 11 leaves loopholes open for condemnors to continue to abuse eminent domain and to condemn for "urban blight." Further, the Institute for Justice has argued that Prop 11 "allows the state to give any entity—including private entities—the power of eminent domain."
OCA Member H. Dixon Montague, a partner in the Houston office of Vinson & Elkins, LLP, has been defending property owners in condemnation, inverse condemnation, and regulatory takings cases against local, state, and federal authorities in both federal and state courts for the past 30 years.
The opinion piece below appeared in today's Arizona Daily Star and is attributed to Senator John McCain. Senator McCain clearly disagrees with the decision of the U.S. Supreme Court in Kelo and even calls upon the Court to revisit "its decision in the near term because it is irresponsible for the court to abandon long-held limitations on government power." Although it is unlikely that the Court will revisit Kelo "in the near term," the Justices will have an opportunity review a case before the Court concerning the issue of private property rights when oral arguments in Stop the Beach Renourishment v. Florida Dep't of Environmental Protection take place before the Court on December 2, 2009.
Years ago, Mark Twain said, "Buy land, they're not making it anymore." It's a wise admonition, unless you live in one of the many states that disregard private-property rights.
In Connecticut, if a landowner won't sell you his land, then the government is happy to seize it in order to generate new taxable income for the government. Shockingly, four years ago this month the Supreme Court held that cities could take land from a private owner and transfer it to another private owner for economic development.
Nine homeowners were forced out of their well-maintained homes in New London, Conn., because the city believed that the property could be developed to create aesthetic pleasure and more jobs for its citizens — and higher tax revenues for the city.
Arizonans living in the wide-open West cherish their homesteads as much as any American, if not more. And Arizonans cherish their private-property rights, including the right set forth in the Fifth Amendment that their private property shall not be "taken for public use, without just compensation."
For these reasons, 62 percent of Arizonans, including myself, strongly supported a ballot initiative in 2006, known as Proposition 207, which stated that "eminent domain may be exercised only . . . for a public use" and with "just compensation."
However, while residents in Arizona and 42 other states have moved to protect private-property rights, numerous states still leave residents' private-property rights at risk.
The right to own private property is enshrined in our Constitution. John Adams wrote, "Property is surely a right of mankind as real as liberty." It would be shocking for our Founding Fathers to learn that today a government can seize a private, well-kept home for economic development under the guise of "valid public use."
In New London, officials determined that it was a public benefit to take private property to build residential, hotel, conference, research and development space. And what has been built on this 90-acre property four years after the Supreme Court allowed the city to seize it? A 16-acre, $25 million state park with the remaining 74 acres sitting empty.
Four years later, the economic and public benefits have not been seen. But the property owners have still suffered a great loss.
The protection of property rights lies at the heart of our constitutional system. Homeowners' rights have now become vastly unstable. The threat is shared by millions of small-business owners.
Property represents the fruit of one's labor. Our economy is fueled by the dreams of innovators and entrepreneurs. Private-property rights are necessary to secure the incentives that have made America the greatest exporter, importer, producer, saver, investor, manufacturer and innovator on the globe.
Protection of those rights means that the individual reaps the rewards of his or her own hard work, not the government or those who control the government.
I hope the Supreme Court revisits its decision in the near term because it is irresponsible for the court to abandon long-held limitations on government power.
Most Arizonans, and most Americans, want the government to stay out of their lives and off of their property.
Due to the court's decision, private property in much of the country is now vulnerable to being taken and transferred to another private owner, as long as the government sees it as beneficial to the public and its tax coffers.
I hope all Arizonans will stand with me in supporting the private-property rights of all Americans.
Land owners and other opponents to the Atlantic Yards re-development project have argued that this economic development taking is specifically contrary to the eminent domain provision of New York's Constitution and constitutes an abuse of the government's power. With the sting of Kelo still fresh in the minds and hearts of many Americans, Goldsteinv. New York is a case to watch.
"The state is taking my home and other people's homes, not for the public use, but to give an extraordinary benefit to the developer. It's not a public use. For the government to take my home to enrich any developer...is wrong and I believe is illegal."
- Daniel Goldstein, lead plaintiff, as quoted in the Wall Street Journal 10/14/09
See also Daniel Goldstein's editorial about the Atlantic Yards Project and the fight he and his neighbors have undertaken to save their homes and businesses at Reason online here.
UPDATE: We watched today's oral arguments before the New York Court of Appeals and followed the live blog hosted by Robert Thomas, participants included Hawaii land use attorney Mark Murakami and Pacific Legal Foundation's Timothy Sandefur. It seems that the participants in Robert's live blog commentary would agree that counsel for Petitioners/Landowners had a strong rebuttal with solid argument and responses to the Court's questions. So now begins the wait and see game until the Court rules.
This is a case to watch as it may be the only legal barrier holding developer Forest City Ratner and the ESDC back from seizing private property - occupied residences and small businesses - to construct a proposed mega-arena and mixed use redevelopment project.
OCA New York Member, Mike Rikon, filed an amicus brief in support of the property owners and on behalf of Willets Point United Against Eminent Domain Abuse. In his brief, Rikon argues that the New York State Constitution expressly prohibits the exercise of eminent domain for economic development. Yet, over the years, the meaning of public use has become corrupted to include "public purpose" or "public benefit." The brief urges the NY Court of Appeals to disregard the Supreme Court's ruling in Kelo as "...simply wrong in it's failure to respect the fundamental constitutional right to own property." (Brief p. 8.) Additionally, it asks the Court of Appeals to follow the decisions of others states that have put an end to this form of eminent domain abuse. (See our previous posts here.)
New York journalist and blogger, Norman Oder, writes in his Atlantic Yards Report today about the upcoming arguments, possible implications, a history of the case and of eminent domain in NY as well as thoughts on how the judges might rule. See his post "The eminent domain battle Wednesday: an easy call for the Court of Appeals of a fresh look at blight, "public purpose," and relative benefits?" here.
We will be following the arguments (by webcast, hopefully) and posting here Wednesday.
(Williamsburg, VA) - William & Mary Law School will host the Sixth Annual Brigham-Kanner Property Rights Conference Oct. 16-17 in Williamsburg, Va. The conference is presented by the William & Mary Property Rights Project and the Institute of Bill of Rights Law.
During the conference, Richard E. Pipes, Professor Emeritus of History at Harvard University, will be honored with the 2009 Brigham-Kanner Property Rights Prize. The conference will include panels on Professor Pipes's property rights scholarship, the psychology of property rights, and the contract clause. The conference concludes with a roundtable luncheon discussion of inverse condemnation comparing regulatory takings with condemnation blight and the Kelo backlash.
The Brigham-Kanner Property Rights Prize is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights. Previous recipients of the Brigham-Kanner Prize include Professor Frank I. Michelman, Harvard Law School (2004), Professor Richard A. Epstein, University of Chicago Law School (2005), Professor James W. Ely, Jr., Vanderbilt University Law School (2006), Professor Margaret J. Radin, University of Michigan Law School (2007), and Professor Robert C. Ellickson, Yale Law School (2008).
Participants in this year's conference include David Bernstein, George Mason School of Law; Jeremy A. Blumenthal, Syracuse University College of Law; Andrew Prince Brigham, Brigham Moore, LLP, Jacksonville, Fla.; Toby Prince Brigham, Brigham Moore, LLP, Miami, Fla.; Alfred L. Brophy, University of North Carolina at Chapel Hill Law School; Lynda L. Butler, William & Mary Law School; James W. Ely, Jr., Vanderbilt University Law School; Eric Kades, William & Mary Law School; Gideon Kanner, Manatt, Phelps & Phillips, LLP, Los Angeles, Calif., and Loyola Law School Los Angeles; Janice Nadler, Northwestern University Law School; Scott Nelson, College of William & Mary; John V. Orth, University of North Carolina at Chapel Hill Law School; Carol M. Rose, James E. Rogers College of Law, University of Arizona; Stephanie M. Stern, Chicago-Kent College of Law; and Joseph T. Waldo, Waldo & Lyle, Norfolk, Va.
Richard E. Pipes is the Frank B. Baird, Jr., Professor of History, Emeritus, at Harvard University. Among his appointments, he served as Director of Harvard University’s Russian Research Center from 1968-1973, as Chairman of the CIA’s “Team B” to review Strategic Intelligence Estimates in 1976, and as Director of East European and Soviet Affairs in President Ronald Regan’s National Security Council from 1981-1982.
Pipes’s books include Formation of the Soviet Union (1954, 1964, 1998), Struve, 2 vols. (1970, 1980), Russia under the Old Regime (1974), The Russian Revolution (1990), Russia under the Bolshevik Regime (1994), Property and Freedom (1999), Communism: A History (2001), Vixi: The Memoirs of a Non-Belonger (2003), and Conservatism and its Critics (2006). He received the National Humanities Medal in 2007.
There is a $50 conference registration fee, which includes admission to all panels and Saturday’s breakfast and roundtable luncheon discussion. Waiver of the registration fee is available for students. Virginia CLE credit is pending. For a brochure, contact Kathy Pond at (757)221-3796 or ktpond@wm.edu.
The Institute for Justice announced this week that IJ lawyers had reached an agreement with Long Branch attorneys settling the eminent domain actions filed almost five years ago against a group of homeowners whose properties lie along Marine Terrace, Ocean Terrace and Seaview Avenue (MTOTSA) in Long Branch.
“Today’s [9/15/09] agreement finally ends this government-created nightmare that was imposed upon these Long Branch homeowners,” said Scott Bullock, a senior attorney at the Institute for Justice which, along with noted New Jersey eminent domain lawyers Peter H. Wegener and William Ward, represented the homeowners. “With this agreement, the neighborhood can be restored to the kind of wonderful community it was before the city and the developer targeted it. These modest, proudly-maintained homes will no longer be threatened by the bulldozers.”
IJ's press release describes the terms of the agreement, which includes dismissal of the eminent domain suits, tax abatements for homeowners reinvesting in their properties (the tax abatements were originally offered to the city-designated developer who would have benefited from the opportunity to build new high-end condos on the homeowners' properties), and partial payment of the owners' attorneys' fees. Perhaps most importantly, the settlement bars Long Branch from taking the homes in the MTOTSA neighborhood under the current or any future redevelopment plan. Additionally and equally important, the settlement obligates the city and the developer to improve conditions in the neighborhood, including repaving and repairing the streets and repairing street lights. The developer must also remedy the damage caused to the neighborhood after it acquired some homes through eminent domain. These homes have remained abandoned and boarded-up, which poses safety and crime risks and an overall decline to the neighborhood.
“At long last, we can get our homes, lives and neighborhood back,” said Lori Vendetti, who owns one of the homes across the street from the house her parents bought more than 40 years ago—a home where her mother still resides. “I am so glad my father and the other seniors in the neighborhood were able to live out their days in their homes, but I wish they could have been here to see this wonderful conclusion.”
For additional details about this lengthy eminent domain battle and the the settlement see the Institute for Justice website here, Rudi Larini's article at NJ.com here and David Porter's Associated Press article here.
In a statement on its website, the Connecticut Office of Ombudsman For Property Rights announced the closure of the office effective September 8, 2009 as a result of budgetary constraints. Robert S. Poliner who held the position of the first and only Connecticut Ombudsman for Property Rights served only two years.
Mr. Poliner wrote in his online farewell letter to the citizens of Connecticut: "When I was appointed, my goal was to increase respect for property rights at all levels and in all branches of our state's government. I hope the assistance I gave to hundreds of citizens and government agency personnel in the last two years has contributed in some small way to that goal." When questioned about how this will affect property rights in Connecticut, Benson Snaider, OCA Connecticut Member, expressed his concern over the legislature's closure of this office and his praise for Mr. Poliner and his accomplishments as Ombudsman. "The closing of Connecticut's Office of Ombudsman For Property Rights constitutes a sever blow to those of us who labor in the field of condemnation in Connecticut. Bob Poliner was able to mediate issues which previously had to be litigated. He was a tireless public servant who has the added qualities of intelligence and the depth of knowledge which 30+ years of private practice can bring to a man."
Mr. Snaider further denounced the decision to close the office and commended Ombudsman Poliner's work, "I am ashamed that the Governor and state legislators could see fit to turn their backs on the inequities inherent in the involuntary conversion of private property to public use so soon after the flush of awareness brought about by the Kelo case has died down. Bob Poliner deserves kudos and recognition for his excellent efforts."
Mr. Poliner's online letter references the many resources available to property owners on the website including links to the statutes pertaining to eminent domain, frequently asked questions and the many newsletters and reports authored by Mr. Poliner over the past two years. However, it is clear that Connecticut property owners facing condemnation after the closure of the Office of Ombudsman For Property Rights will no longer have the resource of Mr. Poliner himself as mediator and advocate.
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Benson A. Snaider, Esq. is an attorney in New Haven, Connecticut. With more than 30 years of experience, Mr. Snaider has successfully represented numerous Connecticut property owners in real estate litigation concentrating in condemnation and condemnation appeals.
Owners' Counsel of America is a network of experienced eminent domain and property rights lawyers from every state in the nation who seek to advance, preserve and defend the rights of private property owners, large and small, locally and nationally. OCA membership is by invitation only and is open to only one trial attorney from every state.
"No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
14th Amendment, United States Constitution
"...nor shall any State deprive any person of life, liberty, or property without due process of law..."
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