William & Mary Law School to host Brigham-Kanner Property Rights Conference

(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.

For more information, visit law.wm.edu/propertyrights

Victory for Long Branch Homeowners

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.

Connecticut Office of Ombudsman for Property Rights Closes

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.

OCA files amicus brief in SCOTUS beach takings case

On September 4, OCA Hawaii Member Robert Thomas filed an amicus brief on behalf of the Owners' Counsel of America in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009).
The U.S. Supreme Court will consider whether a 2008 Florida Supreme Court decision which upheld the Florida Beach and Shore Preservation Act and reversed more than a century of Florida law constitutes a "judicial" taking. Additionally, the Court will decide whether the Florida court's decision violated the Fifth Amendment's due process guarantee.
In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that the Florida statute permitting "beach renourishment" projects without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing common law rights of the owners to accretion on their land and direct access to the ocean.
The brief focuses on three issues:

• First, the notion of "property" embodies core components transcending a state court's power to redefine. The rule of accretion, which insures that littoral parcels remain so, is one of those fundamental components.

• Second, the remedy for a judicial taking is invalidation of the state court judgment.

• Third, this brief summarizes several of the more notable instances where state courts have openly and notoriously rewritten established rules of property. This was accomplished under the guise of "correcting" errors in long-standing common law doctrines, reinterpreting terms to alter their commonly understood meanings, or "discovering" that private property is (and has been all along) subject to a public trust.

More about this case and links to the various briefs filed thus far by the property owners and amici is available on Robert Thomas's inversecondemnation blog and case resource page and at our previous posts here and here.
See also The Destin Log (the Florida Gulfcoast paper where this property rights battle began) for analysis on how the newest Supreme Court Justice, Sonia Sotomayor, is expected to rule on this case.

NJ appeals court finds business losses are compensable in temporary takings

A New Jersey appeals court recently ruled that business losses resulting from a temporary taking of commercial property for the repair of public infrastructure must be compensated. In it's August 27, 2009 opinion, the appellate court upheald a trial court’s dismissal of the New Jersey Department of Transportation’s attempted taking of such a property where its offer of compensation failed to consider the business losses. The appellate court, in State v. Arifee, A-5633-07, adopted a U.S. Supreme Court ruling that “an exercise of the power of eminent domain which has the inevitable effect of depriving the owner of the going-concern value of his business is a compensable ‘taking’ of property.”
Because business losses are compensable in temporary takings and the NJDOT failed to consider those issues in making its offer of compensation, its offer was defective and the dismissal of the State’s complaint was upheld on appeal.
More details and case history are available at the New Jersey Condemnation Law Blog.
The property owners in this matter, Mohammed and Jawed Arifee and the Palace Car Wash, were represented by the law firm of McKirdy and Riskin, including OCA New Jersey Member Edward McKirdy with Anthony Della Pelle and Joseph Grather at trial and on appeal.

Willets Point United Files Amicus Brief in Atlantic Yards Appeal

Willets Point United Against Eminent Domain Abuse (Willets Point United) filed an amicus brief this week in support of a group of fellow NYC property owners, businesses and tenants who are fighting the use of condemnation and the taking of their properties for the proposed Atlantic Yards Arena and Redevelopment Project in Brooklyn. (For more detailed reporting of the proposed Atlantic Yards project, see Norman Oder's Atlantic Yards Report.) The case, Goldstein v. New York State Urban Dev. Corp., is pending in the New York State Court of Appeals.

OCA New York Member, Mike Rikon, represents Willets Point United and authored the brief. The members of Willets Point United include businesses and property owners who have organized under the common threat of eminent domain and are fighting the abuse of that power by the NYC Economic Development Corporation in the Willets Point neighborhood (Queens, NY), particularly with respect to the NYEDC's proposed Willets Point Redevelopment project.

In both the Atlantic Yards project and the Willets Point redevelopment, the taking authorities seek to seize private properties, relocating hundreds of businesses and tenants, in order to give the land to private developers for the purpose of economic development. In Atlantic Yards, that developer is Forest City Ratner, owned by Bruce C. Ratner, who is also principal owner of the Nets basketball team. Interestingly, a large portion of the proposed Atlantic Yards project includes a new $800 million mega-arena for the Nets team.

"The brief is intended to urge New York's highest court to restrict the use of eminent domain to takings for public use and stop condemnations of privately owned property to give to another, usually well connected, private party for economic development," explained attorney Mike Rikon.

The majority decision in Kelo v City of New London written by Justice Stevens was wrong, wrong in its holding and wrong on its facts.
- Amicus Brief of Willets Point United Against Eminent Domain Abuse at 7

Specifically, the brief 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." Citing such infamous NY cases as Courtesy Sandwich Shop, Inc. v. Port of New York and New Jersey Auth., 12 N.Y.2d 379 (1963) (condemnation of approximately 13 city blocks of private property for the World Trade Center site), the "adulteration" of the simple and direct language found in NY's public use clause is highlighted. (Brief pp. 10-12.)

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.

"Finally," Rikon concluded, "it is argued that the courts in New York should make full review of all issues. At present the courts hold that they are bound by 'legislative determinations.' But there is nothing legislative about the determinations which are made by appointed individuals who are not elected or responsible to anyone. In short, the courts reviewing these matters have abdicated their responsibilities."

The merits brief of the Brooklyn property owners and tenants (Goldstein, et al.) is posted here.

See also our fellow OCA Hawaii Member Robert Thomas's blog postings here and here.