Port Chester offers apology for taking property by eminent domain

Jun 16, 2009 - Port Chester, NY - The village of Port Chester publicly apologized to property owner William Brody for improperly seizing his commercial property by condemnation nearly in 1999. In a settlement that ended the decade-long battle between the property owner and the village, Port Chester paid the property owner $475,000, formally apologized from the steps of the Village Hall during a settlement signing ceremony and re-named the street corner where his commercial buildings previously stood "William Brody Plaza."

Dana Berliner, Senior Attorney with the Institute for Justice (and a member of OCA), represented Mr. Brody in his litigation against the village. As reported in LoHud.com, Ms. Berliner explained that the conditions of this particular settlement were out of the ordinary but that "The case was never about money; it was about vindicating Mr. Brody's rights."

In reality, the case was more than simply vindication for Mr. Brody's individual rights, it became a stimulus for changing New York's eminent domain law.

In 1999, Mr. Brody's property, including four commercial buildings, was seized by eminent domain for the construction of a 27-acre shopping complex built by G&S Investors. Mr. Brody missed the legal notice in the local newspaper which indicated Port Chester's intention to take his and other privately-owned properties. At the time, that was the minimum requirement for notification to a property owner under New York law. Mr. Brody sued the village claiming that he had no opportunity to fight the condemnation because he had missed the newspaper notice.

In a 2004 landmark reform, the notification requirement was amended obligating municipalities to notify property owners by certified mail or personal delivery.

At Tuesday's settlement signing ceremony, Port Chester's Mayor indicated that the village had no intentions of further condemnation actions and that it respects individual property rights. However, many would agree that actions speak much louder than words. Currently, the village owes two other property owners approximately $900,000 for properties seized in 2000 and 2001 for the same development. (See LoHud.com: Port Chester owes nearly $900,000 to owners of 2 seized businesses.) Port Chester has missed its May 15, 2009 deadline to pay these property owners the amounts owed, which includes the property value plus interest since the properties were seized years ago.

Attorney Michael Rikon (OCA New York Member) filed a motion recently against the village seeking payment of the amounts due plus a late payment penalty. Rikon explained that this has become an unnecessary and improper burden upon the two former property owners, who are no longer in business as a result of losing their properties.

The village attorney responded to the recently filed motion by saying that it was unnecessary and that the property owners will eventually get their money. Isn't it interesting: the village was able to quickly condemn property after simply posting legal notices in the paper, yet, some of the property owners whose homes, businesses and livelihoods were taken continue to await just compensation for their losses?

In a blog post yesterday: Apology Doesn't Go Far Enough, veteran journalist Phil Reisman who reported extensively on this "eminent domain fiasco" wrote: "...the apology to Brody isn’t enough. The village should extend it to the scores of merchants, landlords and apartment dwellers who were bullied, terrorized and swindled during that terrible period."

Supreme Court to hear Florida beach erosion case

On Monday morning, the Supreme Court agreed to hear a Florida property rights case, Stop the Beach Renourishment v. Florida Dep't of Environmental Protection, et al. (08-1151). In granting certiorari, the Court will decide whether state legislation to renourish eroded beaches along the coast or lakeshores constitutes a regulatory taking or violates the Fifth Amendment when the boundary lines of waterfront private property is affected.

Beachfront property owners along Florida's Gulfcoast, have been trying to stop an effort by local and state officials to restore the beach through renourishment, a process by which sand is dredged from the ocean floor, transported through pipes and distributed along eroded beach areas, in essence adding sand to widen the beach. This proposed beach renourishment project would cover nearly seven miles of shoreline and widen the beach by approximately 210 feet in Destin, FL.
A key issue in the litigation thus far, which has moved from Circuit Court to the First District Court of Appeal to the Florida Supreme Court, is that by adding sand to the waterfront and restoring the beach, the State of Florida will assume ownership of some of the beach. The property owners have argued that their littoral rights would be limited, amounting to a regulatory taking, without just compensation.
In its September 29, 2008 opinion, the Florida Supreme Court opined that since enactment of Florida's Beach and Shore Preservation Act (specifically Part I of Chapter 161, Florida Statutes (2005)), the state has a constitutional duty to protect the beaches. The Florida Supreme Court sought to answer the certified question, which it rephrased as: "On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?" In its decision, the Court answered the question in the negative, quashing the appellate court decision, which had previously ruled in favor of the property owners.
Both the Florida Supreme Court and the First District Court of Appeal provided extensive factual and procedural history for the Beach and Shore Preservation Act and Florida's efforts to restore eroded beaches in their opinions. The background is outlined briefly here.
Following a number of hurricanes in the 1990's and early 2000's, the beaches of Walton County were drastically eroded and as a result the Florida Department of Environmental Protection (FDEP) listed the County's beaches as "critically-eroded." To restore the beach area, Walton County applied to the FDEP for a permit to renourish the areas. In order to do so, the FDEP needed to establish a line at which the renourishment should begin, the Erosion Control Line (ECL).
A coastal survey was completed in 2003 which established the Mean High Water Line (MHWL) and the ECL was drawn along the MHWL. According to the Beach and Shore Preservation Act (specifically Section 161.191(1)), upon recording, the ECL became the boundary between publicly owned land and privately owned upland. In other words, once the ECL was established at the MHWL along private waterfront property, any sand added to the beach seaward of the ECL would be considered public lands and the private property would no longer have a direct boundary with the ocean. The private property owners argued that as a result of the beach restoration, they would no longer have common law littoral rights -direct ocean access, use and view as well as accretion and reliction - and that as a result of the loss of littoral rights, their property values would decrease.
In its opinion, Florida's Supreme Court outlined the relationship between the public and Florida's beaches.

Under both the Florida Constitution and the common law, the State holds the lands seaward of the MHWL, including the beaches between the mean high and low water lines, in trust for the public for the purposes of bathing, fishing, and navigation. See art. X, § 11, Fla. Const. (“The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people.”)

Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102, p. 12 (Fla. 2008).
The Court explained that in addition to its duties under the public trust doctrine, which has origins in English common law, the State has the responsibility to preserve and protect Florida's beaches as "important natural resources." Id at 13. The Court continues this explanation by stating that upland property owners have no rights to navigable waters and sovereign lands superior to the general public but that private property owners do have littoral rights - to access, use, view, accretion and reliction. The Court argued that the Beach and Shore Preservation Act expressly preserves the littoral rights of upland owners - access, use, and view, as well as the rights of ingress and egress. The Court found that at least facially there is no impairment of littoral rights, despite altering the property owners' rights to accretion and relicition. Therefore, the Court held that the Beach and Shore Preservation Act, on its face, did not unconstitutionally deprive upland owners of littoral rights without just compensation. Id at 36.
In just 24 hours since the Supreme Court announced that it would hear this case, there have been many articles and blog posts about the issues surrounding this regulatory takings case. Some links and interesting articles include:

• SCOTUS To Review Beachfront Takings Case: Can A Court Decision "Take" Property? - Robert Thomas's inversecondemnation blog
• Surprise! Supreme Court Grants Cert in Beach Takings Case - ABA Journal online
• Supreme Court Takes Regulatory Takings Case - Volokh Conspiracy blog
• SCOTUSblog - including links to the Petition for certiorari and all briefs filed thus far

The AP has reported that oral arguments will most likely be heard this winter.

Photo Credit: "Restoration in Progress - Eastern Destin" from www.destin-fwb.com

Author and Publisher Ask Court to Dismiss Eminent Domain Defamation Lawsuit

Recently, the Institute for Justice released the following press release regarding the lawsuit filed by Texas Developer H. Walker Royall against author Carla Main and publisher, Encounter Books, regarding Ms. Main's book: Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land. The Institute for Justice represents Ms. Main and Encounter Books in this defamation suit. Bulldozed is available at Amazon and Barnes & Noble. For more about this story see our previous posts here.

IJ WEB RELEASE: June 5, 2009

Dallas, Texas—The author and publisher of Bulldozed: “Kelo,” Eminent Domain, and the American Lust for Land today asked a Dallas state court to dismiss the defamation lawsuit filed against them by Dallas developer H. Walker Royall. Published in 2007, Bulldozed chronicles events in Freeport, Texas, where Royall signed a development agreement to have the city take land owned by Western Seafood—a generations-old shrimping business—and give that land to Royall’s development company for a luxury yacht marina. Royall sued the book’s author, Carla Main, and its publisher, Encounter Books, in October 2008, seeking monetary damages and a permanent prohibition on further printing or distribution of the book.
Royall’s lawsuit is part of a national trend. Similar suits have been filed in Tennessee, Missouri, Washington and elsewhere by developers and government officials looking to silence critics of eminent domain for private gain. Earlier, when the Gore family—owners of Western Seafood and the original victims of Royall’s eminent domain abuse effort in Freeport—complained against Royall’s actions, he sued them for defamation. In the present lawsuit, Royall has also sued the Galveston newspaper that reviewed the book, along with the book reviewer. Law Professor Richard Epstein, whom Royall also sued, was dismissed from the lawsuit in March.

When asked by Main and Encounter to identify specific passages in Bulldozed that defame him, Royall could point only to Main’s criticism of his involvement in the Freeport marina project and a handful of random statements that fall far short of the legal standard of defamation.

“Mr. Royall does not seem to understand that the First Amendment protects the right of journalists to criticize people who seek to profit from public projects,” said Matt Miller, executive director of the Institute for Justice Texas Chapter (IJ-TX), the nonprofit public interest law firm that is defending Main and her publisher. “Mr. Royall agreed to have the city of Freeport take his neighbors’ land and give it to him so that he could build a luxury yacht marina. Carla Main enjoys the same right all Americans enjoy under the First Amendment, to chronicle and condemn Mr. Royall’s behavior. We asked Mr. Royall to tell us how, exactly, Bulldozed defames him and he came up empty-handed. Carla wrote a hard-hitting exposé of the events in Freeport, but she did not defame Mr. Royall.”

Main is a veteran journalist who was an associate editor of The National Law Journal, where she edited the opinion page and wrote a column on law and society. She wrote for The Wall Street Journal, Policy Review, National Review, The American Lawyer and The New York Sun, among other publications. Before becoming a journalist, Main practiced as an attorney in New York City for ten years. Bulldozed was reviewed in many newspapers, including The Wall Street Journal, was nominated for the Texas Historical Commission’s annual T.R. Fehrenbach Book Award and won a highly competitive independent press award for political science writing.

“The book was a labor of love,” said Main. “I researched it meticulously and gave Mr. Royall multiple opportunities to be interviewed. His primary complaint about the book seems to be that I described him as participating in an economic development taking, which he did.”

“Eminent domain for private gain is the subject of nationwide public debate,” said Institute for Justice Senior Attorney Dana Berliner, who was co-counsel in the Kelo v. New London Supreme Court case, which is addressed at length in Bulldozed. “If Walker Royall doesn’t want anyone to talk about him or his development deals, he shouldn’t enter into deals that involve a city’s condemnation of his neighbors. Today we are asking the court to put an end to Mr. Royall’s lawsuit spree.”

If successful, the motion filed today will result in a complete dismissal of the lawsuit against Main and her publisher.
Media Contact:
John Kramer
(703) 682-9320

About the Institute for Justice

Founded in 1991, the Virginia-based Institute for Justice fought the landmark legal battle to protect property rights in the U.S. Supreme Court, arguing Kelo v. City of New London in 2005. The Institute has successfully defended eminent domain abuse activists sued for speaking out in St. Louis, Mo., and Clarksville, Tenn.

Dana Berliner, IJ Senior Attorney, is a member of the Owners' Counsel of America and a recipient of the Crystal Eagle Award.