Friday, October 31, 2008
Photo 2 (left to right) : Prof. Robert C. Ellickson, Prof. Gideon Kanner, Toby Prince Brigham, W. Taylor Reveley, III, Prof. James W. Ely, Jr., Prof. Eric A. Kades, Lynda L. Butler, Joseph T. Waldo.
The fifth annual Brigham-Kanner Property Rights Conference and presentation of the 2008 Brigham-Kanner Property Rights Prize was held the weekend of October 17th at the College of William & Mary Law School in Williamsburg, Virginia. The 2008 Brigham-Kanner Property Rights Prize was presented to Professor Robert C. Ellickson, the Walter E. Meyer Professor of Property and Urban Law at Yale Law School, during a candle lit dinner in the historic Sir Christopher Wren Building – America’s oldest academic building.
The Brigham-Kanner Property Rights Conference and Brigham-Kanner Property Rights Prize are named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights. The conference included five panel discussions focused on private property rights as well as the scholarship of Robert Ellickson.
The first panel discussion, entitled The Role of the Judiciary in the Checks and Balances Affecting Property Rights, focused on the role of jurists in the fight to protect private property interests. The panel included former Brigham-Kanner Property Rights Prize recipient Professor James W. Ely, Jr. of Vanderbilt University, the Honorable Wilford Taylor of the 8th Judicial Circuit Court of Virginia, and the Honorable Maureen O’Connor of the Supreme Court of Ohio.
Professor Ely addressed the need for the separation of governmental powers as it relates to property rights. He discussed the history of the government’s attempt to protect property rights and its efforts to ensure that the power to infringe upon those rights was not vested in a single institution.
In describing the role of the judiciary and its relation to property rights, Justice O’Connor of the Ohio Supreme Court discussed the Court’s decision in the case of Norwood v. Horney. The Court’s Norwood decision was the first opinion on the public use clause by a state high court after the controversial U.S. Supreme Court decision in Kelo v. City of New London. Discussing the unanimous opinion she authored, Justice O’Connor described the Court’s reasoning in reaching its conclusion and emphasized her belief that the opinion needed to be unanimous to appropriately affirm private property rights. Ultimately, Justice O’Connor wrote that economic benefit to the community, standing alone, was not sufficient to establish a public use for purposes of the Ohio Constitution’s takings clause.
The first panel concluded with Judge Wilford Taylor’s discussion of the role of the trial court in the protection of private property rights. His remarks focused on the role of the trial judge as the "gatekeeper” of property rights. The trial court is the first arbiter in disputes regarding property rights and, as Judge Taylor explained, it is the court’s responsibility to ensure that all property owners are treated fairly and that the law is properly applied to the facts.
The second panel of the afternoon was entitled Norms & Decentralization of Property Rights. The panel focused on Professor Ellickson’s research on the effects societal norms have on private property rights. The members of the panel included Professor Nicole Stelle Garnett of the University of Notre Dame Law School, Professor Roderick Hills, Jr. of New York University Law School, and Professor Stewart Sterk of Cardozo Law School.
Professor Garnett focused on the effect social norms have on the allocation of public spaces. She discussed how social norms could have both positive and negative effects on public spaces ranging from social activities such as neighborhood barbecues to gang activities. Professor Garnett also discussed norm enforcers at length, focusing on the role of the public-at-large as well as law enforcement officers in curbing behavior outside social norms and analyzing the norms of certain law enforcement scenarios.
Professor Hills’ prepared remarks addressed the evolution of the decentralization of property rights in America. He described the change in view from the late 1960’s and 1970’s in which many believed that property rights would be federalized to the belief today, after Kelo, that the protection of property rights would fall to the state and local levels. Professor Hills stressed that decentralization of property rights simply means looking to other sources of law for protection and that perhaps it is beneficial that there is no national public use doctrine.
Concluding the afternoon forum, Professor Sterk discussed contracts as they relate to social norms and the public’s increasing unwillingness to read legal documents. Professor Sterk argued that courts in the interpreting and enforcing legal documents are ignoring the language of the documents because the social norm is for parties not to read them.
The first day of the conference concluded with the dedication of the Brigham-Kanner Property Rights Prize plaque followed by a reception and dinner in the Wren Building at which Professor Ellickson was presented with the 2008 Brigham-Kanner Prize. During his acceptance, Professor Ellickson reminded the audience that while property rights scholars and advocates are a small group with limited recognition, the benefits of their work is far reaching.
The second day of the Fifth Annual Brigham-Kanner Property Rights Conference commenced with a panel discussion focusing solely on Professor Ellickson’s property scholarship. The panelists included Carol M. Rose of the University of Arizona, Eduardo M. Peñalver of Cornell University, Lee Fennell of the University of Chicago, and Henry Smith of Yale Law School. The speakers together discussed the broad themes and underlying views central to Professor Ellickson’s research and publications. Among the main themes central to Professor Ellickson’s scholarship are the decentralization of property rights and a libertarian view of appropriate governmental intervention.
The second panel of the day was entitled, How Will Global Warming Change the Climate for Property Rights, and included OCA member Michael Berger from Manatt, Phelps & Phillips, LLP, and Eric Kades of William & Mary Law School. The panelists debated the effect of climate change on private property rights and the possibility that global warming may require limitations on the rights currently enjoyed by property owners. Mr. Berger argued that property rights are protected by the United States Constitution and that any statutory efforts to curtail those rights would be trumped by the Supremacy Clause. Conversely, Professor Kades described the Constitution as a living document and argued that fundamental changes to property rights would be needed to address the growing concerns over global warming.
The final panel of the 2008 Brigham-Kanner Property Rights Conference featured the two men for whom the conference was named. Toby Prince Brigham spoke on the topic of Human Nature & Property Rights and Gideon Kanner discussed Juxtaposition of Judicial Rhetoric and Judge-Made Compensability Rules – Indemnity or Kleptocracy? Mr. Brigham focused on the changes in the law of eminent domain in Florida during his years of practice and explained that property rights have been recognized for thousands of years. Mr. Brigham emphasized that, given the long history of protection of the right to own property, there is no need to reinvent the rights of the owner. He closed by stating the best method of preserving property rights is to honor the principles of the Constitution and to maintain the rights that have always been afforded by it. Gideon Kanner discussed the standards employed by the courts in determining just compensation and criticized judges who developed independent compensability rules. He reemphasized the belief that juries should determine just compensation and should do so in accordance with the governing laws, not according to the whims of the bench.
The 2008 Brigham-Kanner Property Rights Conference was video recorded and can be purchased by contacting Mary Beth Dalton (firstname.lastname@example.org) at the College of William & Mary’s Law School or to order online click here.
The above post was authored by Brian G. Kunze, Esq., an associate with The Law Firm of Waldo and Lyle, P.C. in Norfolk, Virginia. Mr. Kunze and the attorneys at Waldo & Lyle limit their practice exclusively to the defense of private property owners in eminent domain and condemnation proceedings. Waldo & Lyle, P.C. serve property owners in Virginia and throughout the mid-Atlantic. Joseph T. Waldo, Esq. is the Virginia Member of the Owners' Counsel of America.
Monday, October 13, 2008
After suit, Road Commission owns gas station
by Mike Martindale
On Thursday, Awdish shut down Frank's Fast Break Sunoco at Crooks and South Boulevard after two years of trying to keep afloat.
He blames road improvements in the area -- a widening of Crooks Road that necessitated a shutdown of one of the South Boulevard driveways into his station -- for diminished traffic. He said after the driveway was closed two years ago, it cost him money every day he tried to operate the station.
"Customers, especially those wanting to get to the diesel pumps on that side of the station, couldn't get in," said Awdish, who was at the station Thursday assisting in an inventory and takeover by the Road Commission for Oakland County.
Awdish, 55, filed a lawsuit against the Road Commission of Oakland County. Earlier this year, Oakland Circuit Judge Daniel Patrick O'Brien agreed with his claims and made a judgment in his favor, to be paid today, in exchange for the property, Awdish attorney Alan Ackerman said.
"Most people would be excited getting a check for over a million dollars -- I think the judgment will total nearly $1.3 million," Ackerman said. "But he paid $1.7 (million) for the business when he got into it over 10 years ago. And he has been losing over $100,000 a year for the past two years."
Craig Bryson, a Road Commission spokesman, said the commission would abide by O'Brien's ruling, which has increased the cost of the $20 million widening project between Square Lake and M-59.
"We have essentially bought the property but have no plans to operate a gas station," Bryson said. "We'll sell it and expect the new owner will disprove his claims that a gas station can't survive at the location."
Land along Crooks directly across from the station is being cleared for a new Chase Bank, and two small shopping centers at the intersection appear busy. There are several subdivisions, including upscale gated communities, nearby.
Ackerman said while the Road Commission operates in good faith, "they made a big mistake here, and he lost a thriving business."
It's the second business loss for Awdish. Over a decade ago, a Hamtramck party store he operated was destroyed in a storm, Ackerman said.
"Frank's a great guy," said Brian Kennedy, owner of a Rochester Hills sprinkler company, who dropped in the station to say goodbye. "I can't believe they shut him down like this."
Awdish said while the court judgment will help pay off bills, he won't be made whole.
"I've been busy trying to find a job," Awdish said. "All I hear is I'm too old or else the pay is only $8 an hour. I've got a big family to support. I don't know what I'm going to do."
Thursday, October 2, 2008
“This agreement is a magnificent victory for Joy Ford and all Tennessee home and small business owners,” said Scott Bullock, senior attorney with the Institute for Justice, which represented Ford and fights eminent domain abuse nationwide. “By challenging eminent domain abuse, Joy Ford obtained a landmark agreement where she keeps her building and gets more and better land next to it.”
Under the agreement, Ford will exchange a portion of her back parking lot measuring 50 feet wide and 73 feet deep for a parcel adjacent to the eastern (right) side of her building measuring 49 feet wide and 105 feet deep. Nashville’s Metropolitan Development and Housing Agency (MDHA) did not participate in the negotiations between Ford and Lionstone.
“This agreement demonstrates what can happen when private parties sit down to work something out without the government,” said Bullock.
The Institute, along with Nashville eminent domain attorney Jim Fisher of Lassiter Tidwell, represented Joy Ford throughout the controversy, including negotiations over the agreement.
In June, the MDHA filed an eminent domain action against Ford to obtain her entire parcel of land so that it could be given to a Houston-based private developer, Lionstone Group, to construct an office building. Under pressure, MDHA in August dropped its eminent domain suit against Ford’s building but demanded that Ford settle by giving up virtually the entire back portion of her long, narrow parcel of property. Ford rejected this demand, but came up with an alternative proposal: she would exchange a portion of the back of her property for more accessible land on the east side of her building owned by Lionstone. After weeks of intense negotiations, Lionstone agreed to the proposal. The agreement is solely a swap of land. No money was exchanged.
“I am elated with this agreement,” said Joy Ford. “This battle was never about money. It was about protecting my rights and keeping my family’s legacy on Music Row. Now I will have a more accessible and better parking area for my clients’ cars, trucks and buses while they are visiting Country International.”
Although Ford achieved victory in her battle, she is not done with her fight against eminent domain abuse, pledging to work with other property owners and Metro and state legislators to stop eminent domain abuse. “I will not rest until eminent domain is stopped being used on behalf of private interests.”