OCA Attorney Edward D. McKirdy Honored as "Lawyer of the Year"

Edward D. McKirdy, OCA New Jersey Member and founding partner of McKirdy & Riskin in Morristown, NJ has been named as the “Newark Area Best Lawyers Eminent Domain and Condemnation Lawyer of the Year” for 2011 by Best Lawyers, the oldest and most respected peer-review publication in the legal profession. For over 40 years, EdMcKirdy has dedicated his practice to the representation of New Jersey property owners in eminent domain, redevelopment, and property tax assessment matters.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities. Only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 17th edition of The Best Lawyers in America (2011) is based on more than 3.1 million detailed evaluations of lawyers by other lawyers.

The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in our surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.

Steven Naifeh, President of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Edward D. McKirdy on being selected as the ‘Newark Area Best Lawyers Eminent Domain and Condemnation Lawyer of the Year’ for 2011.”

Follow up: The Wacky & Wonderful World of Eminent Domain After Kelo

Yesterday's webinar "The Wacky & Wonderful World of Eminent Domain After Kelo" packed a lot of information into one quick hour. Speakers Robert Thomas, partner at Damon, Key, Leong, Kupchak, Hastert in Honolulu, Hawaii, and Andrew Schwartz, partner at Shute, Mihaly & Weinberger in San Francisco, California, presented their opposing viewpoints on the use of eminent domain for redevelopment. [Disclosure: Robert Thomas is the OCA member from the Aloha state.]

Robert Thomas titled his presentation "Schlimmbesserung - Eminent Domain for Redevelopment." As Robert explained schlimmbesserung is one of those German words that does not translate directly to an English word and essentially means "to make worse by improving." As Robert explained yesterday and in his blog post here, schlimmbesserung or worsening by improvement describes how he sees the more infamous eminent domain for redevelopment projects such as Kelo and Poletown.

A point that we would like to mention from Robert's discussion: the Supreme Court in Kelo did not unequivocally permit eminent domain for economic development. Rather, the Court indicated that economic development might be a public use. Further, in Kelo the Court points to pretext and found that economic development as a pretext to hide a private benefit is not public use. The Court ultimately required lower courts to review the reasons for a taking to examine the benefit and determine whether the taking is truly for the public use or a pretext hiding a private use/benefit.

Robert's PowerPoint presentation is available below for review or download and has also been posted on his blog here.

Uconn cre thomas_slides_10-2010

View more presentations from inversecondemnation.

The second speaker, Andrew Schwartz, approached redevelopment from a different angle and spoke of the "bigger picture." Andrew argued that redevelopment is a tool used by the government to address situations of market failure. He suggested that for every redevelopment project that fails, 10 succeed. Andrew explained that in California, his home state, redevelopment has been enormously successful in creating affordable housing. He spoke of redevelopment, particularly "infill" redevelopment whereby underutilized or vacant property within an urban area is developed to craft a complete well-functioning neighborhood, as beneficial on climate change as it reduces sprawl. Finally, he argued that Kelo was only a "partial failure of redevelopment." While we do not have a copy of Andrew's PowerPoint that we can share at this time, we will do so if it becomes available.

In the end, the adage: "Beauty is in the eye of the beholder" comes to mind here. One man's underutilized parcel is another man's castle, home or business, while one individuals' well-traveled sidewalk is another's cracked and blighted eyesore. And, finally, while Pfizer may have built a beautiful 33-acre waterfront office complex (that it later announced it would vacate), schlimmbesserung really does seem to describe the redevelopment project initiated by the the New London Development Corporation to bring economic development and increased tax revenues to New London.

The webinar was sponsored by the Counselors of Real Estate, the University of Connecticut, and Robinson & Cole as part of the 2010 Real Estate Teleconference Series and we are looking forward to participating in more interesting conversations within this series.

We also recommend that you read Redevelopment's Dismal Story posted by Professor Gideon Kanner at his blog, Gideon's Trumpet.

Update: I-69 Informational meeting for affected property owners in Indiana

The Princeton Daily Clarion newspaper published an article this morning recapping the meeting held last night in Oakland City, Indiana to inform property owners of their rights and options in eminent domain and on the potential impacts of the proposed I-69 Corridor Project connecting Evansville to Indianapolis.

Some key points from the news article Advice sought on I-69 eminent domain:

• INDOT, in the interest of being responsible stewards of public money, may initially offer low purchase prices for private property needed for this project. Often, these initial offers do not take into account the full value of the property at its highest and best use and the effect the taking would have on the value of remaining property.

• Property owners who will be affected by the project or who have already received offers to purchase their property from INDOT should locate a skilled eminent domain attorney, particularly one who has experience with INDOT. A lawyer experienced in condemnation law and in litigating with condemning authorities, such as INDOT, can assist property owners by navigating the complexities of the eminent domain process and securing just compensation, which may include relocation costs.

• Many attorneys will defend a property owner in an eminent domain suit on a contingency fee basis - requesting as their fee a percentage of the compensation amount awarded above the initial offer. Additionally, Indiana's eminent domain law IC 32-24-4.5, passed in 2006, provides that if there is a trial and the amount of damages awarded to the owner is greater than the amount specified in the last offer of settlement made by the condemnor, the court shall require the condemnor to pay the owner's litigation expenses, including reasonable attorney's fees, in an amount that does not exceed twenty-five percent (25%) of the cost of the acquisition.

CRE-UCONN Webinar: The Whacky & Wonderful World of Eminent Domain After Kelo

Tomorrow, October 21, 2010, from Noon to 1:00 PM (Eastern) the Counselors of Real Estate in conjunction with University of Connecticut will host a webinar entitled "The Whacky & Wonderful World of Eminent Domain After Kelo."

OCA Member, Robert Thomas (Hawaii) will be speaking about what the Court in Kelo really decided, and how courts in the intervening five years have viewed the decision. On the panel with Mr. Thomas will be Andrew W. Schwartz, from San Francisco's Shute, Mihaly & Weinberger. The session will be moderated by John Clapp, Ph.D. of the UConn Center for Real Estate, and Michele Maresca, a land use attorney at Robinson & Cole in Hartford.

This webinar has been offered as part of the 2010 Real Estate Teleconference Series sponsored by the Counselors of Real Estate and Robinson & Cole. Here's a description of the program:

The Supreme Court's decision in Kelo v. City of New London has been viewed by property rights advocates as the virtual gutting of the Fifth Amendment's limits on the use of eminent domain for transfer to private developers, while advocates of governmental and redevelopment authority power have argued that the decision was simply the continuation of long-standing takings doctrine. Which is it? With the perspective that five years provides, this webinar will look at what the Court decided and what it didn't and recent cases where eminent domain was used for public/private partnerships.

Click here to download the registration form.

Informational meeting tonight on the impacts of the I-69 Corridor in Indiana

I-69 Corridor - Proposed Route (Sections 1-6)

The Hoosier Environmental Council (HEC) will be hosting an informational forum concerning Indiana Department of Transportation's (INDOT) I-69 corridor project, a 142-mile highway connecting Indianapolis and Evansville. The meeting will take place at the Wirth Park Community Building in Oakland City, Wednesday, October 20, 2010 beginning at 6:30 PM. This event is geared toward private property owners and will provide Pike and Gibson County residents a chance to ask questions about how the Section 2 of the proposed I-69 project will affect them, their property, and their way of life. Note: this meeting is not sponsored by INDOT but by individuals and groups whose focus is upon environmental impacts, property rights and the use of eminent domain.

There is no cost for this informational meeting. However, the meeting sponsors do request that those wishing to participate register here.

Additional details for the meeting are as follows:

Wirth Park Community Building
Wirth Park
Oakland City, Indiana 47660

Pizza will be served at 6:30 PM CDT

Speakers will begin at 7:00 PM CDT

Speakers include:

Tim Maloney and Steven Meyer from HEC
Thomas Tokarski from Citizens for Appropriate Rural Roads (CARR)
Attorney Keith Guthrie of Elizabethtown, IN

This event is sponsored by:

Hoosier Environmental Council (HEC)
Citizens for Appropriate Rural Roads (CARR)
Pike-Gibson Citizens for Quality Environment

More details about this informational meeting are available at HEC's website here. See also the Bloomington Alternative here for a recap of a similar informational forum held in September.

Crusading against eminent domain: Nevada attorney, Kermitt Waters, a man of the people

Eminent domain lawyer Kermitt Waters fights government efforts to take private land and strongly promotes the process of citizen ballot initiatives to “protect the people.”
Photo Credit: Steve Marcus, The Las Vegas Sun

Sunday (10/10/10), The Las Vegas Sun featured Owners' Counsel of America member and eminent domain attorney, Kermitt Waters, in a story titled Crusading eminent domain lawyer a man of the people. As Reporter Erin Dostal explained: "The cell phone won’t stop ringing. It is election season, after all, and it seems as if everybody from every party wants a piece of Kermitt Waters." Kermitt, however, is not running for political office and probably never will. He has and will continue to fight on behalf of the people and against special interests in his eminent domain practice, ballot initiatives and legislative reform.

As Ms. Dostal mentions in her article, Mr. Waters championed a petition initiative following the Supreme Court's ruling Kelo called PISTOL — the People’s Initiative to Stop the Taking of Our Land, also known as "The Property Owners' Bill of Rights." PISTOL, however, was not merely Nevada's response to Kelo but also Nevada's response to what Nevada property owners viewed as eminent domain abuse within their state as seen in the Nevada Supreme Court decision in City of Las Vegas Downtown Redevelopment Agency v. Pappas, which allowed the government to use its power of eminent domain to take private property from one owner and give it to another. (Kermitt Waters represented the Pappas family in the 1990s when the City of Las Vegas used eminent domain to buy the Pappas property to build a parking garage downtown.)

Because PISTOL was an amendment to the state constitution, Nevada law required it to be passed in two separate general elections and so it was placed on the ballot in both the 2006 and 2008 general elections. Subsequently and despite many legal challenges, Nevada voters overwhelmingly approved the PISTOL initiative (by nearly 70% in both elections). PISTOL is now encompassed within the Nevada Constitution, governing the use of eminent domain within in Nevada and includes safeguards for landowners that make it more difficult for state and local governments to take private property.

PISTOL is “going to stop government from financing public projects on the backs of landowners,” Waters told the Sun in 2006. “It is intended to protect the people, the politically and economically weak people who can’t fight back. This will keep the rich from robbing the poor.”

Amendments to PISTOL are on the November 2010 ballot as "Question 4." If is passes, Question 4 will water down the protections established by PISTOL. Differences between PISTOL and Question 4 include a clause that extends a requirement that property taken by eminent domain must be used within5 years or it will revert back to the owner and instead would permit governments to take 15 years before beginning work on acquired property and creates loopholes or exceptions for government to take private property for private transfer rather than purely public use and also weakens the PISTOL provisions governing just compensation for property owners. Despite Question 4's weakening of PISTOL's protections, Waters told the Sun that "95 percent of the initiative is still there — all the important, core parts."

Disclosure: Kermitt Waters is the Nevada Member of the Owners' Counsel of America and has defended Nevada property owners in eminent domain and inverse condemnation actions for over 40 years.

NY State Court of Claims: CSX entitled to $12.1 million in damages for property taken by eminent domain

The following press release regarding a recent NY Court of Claims ruling awarding just compensation of $12.1 million to the property owner in an eminent domain action is available in its entirety here.

New York, New York (October 1, 2010) -- Attorneys from the New York law firm of Goldstein, Rikon & Rikon, the only law firm in New York practicing exclusively in the area of eminent domain and condemnation law, secured a $12.1 million award from the New York State Court of Claims for the permanent taking of easements owned by CSX Transportation, Inc.

The case, New York Central Lines v. State of New York (Claim No. 102648), was litigated in the New York State Court of Claims before the Honorable Alan C. Marin. Judge Marin's award to CSX Transportation (same entity as New York Central Lines) was for the actual amount of $12,104,006.00 and was filed on September 23, 2010.

In January 2000, the State appropriated a portion of what is known as the Freemont Secondary Line, a rail freight line that runs from the Oak Point Yard in the Bronx, across the East River via the Hell's Gate Bridge to Fresh Pond Junction in Queens. The State appropriated some 236,836 square feet in fee and 43,856 square feet by permanent easement. In addition, there were five temporary easements appropriated as well. The condemnation involved the demolition of three bridges, which were replaced with a longer span and new retaining walls.

Goldstein, Rikon & Rikon, P.C. represented CSX in filing a claim under New York's eminent domain law. Eminent domain refers to the government's power to take private property for a public use, provided that "just compensation" is paid. At trial, the State of New York took the position that no damages were due to CSX/New York Central Lines for any of the property it took by eminent domain.

"We were able to show that the bridges used by CSX, as of the taking, were functional and that there was no showing of any problem or variance from applicable standard or safety regulations," said Michael Rikon, an experienced eminent domain attorney and partner at Goldstein, Rikon & Rikon. "More importantly, the Court reiterated the well-established law in the State of New York that improvements to remaining land can never be used to offset the value of the land taken in eminent domain."

Disclosure: Michael Rikon is the New York member of the Owners' Counsel of America.

Prof. Carol Rose honored at 7th Annual Brigham-Kanner Property Rights Conference

The seventh annual Brigham-Kanner Property Rights Conference and presentation of the 2010 Brigham-Kanner Property Rights Prize took place September 30 and October 1, 2010 at William & Mary Law School in Williamsburg, Virginia. The 2010 Conference included various panel discussions focused upon private property rights as well as the scholarship of the 2010 prize recipient, Carol Rose.

The 2010 Brigham-Kanner Property Rights Prize was presented to Professor Carol M. Rose, Ashby Lohse Chair in Water and Natural Resources at the University of Arizona James E. Rogers College of Law on September 30, 2010. Professor Rose is a graduate of Antioch College. She received a Ph.D. in history from Cornell and a J.D. from the University of Chicago. Before joining the faculty of the University of Arizona in 2005, Professor Rose held the position of Gordon Bradford Tweety Professor of Law and Organization at Yale Law School. Professor Rose has also held visiting professor and visiting scholar positions at a number of distinguished universities.

Professor Rose was awarded the prize on Thursday evening following a reception and dinner in the historic Sir Christopher Wren Building – America’s oldest academic building - on the William and Mary campus. William and Mary Law Professor Eric A. Kades, a former student of Professor Rose, spoke about Professor Rose, her scholarship and her teaching before the prize was awarded. In preparation for the event, Professor Kades solicited comments from fellow Yale law students who had taken Rose's course. Interestingly, he also located the course outline - yellowed and crinkled from his time in Prof. Rose's class.

The Conference began Friday morning with a panel discussion focusing upon the scholarship of Professor Rose. Panelists included Robert C. Ellickson, Walter E. Meyer Professor of Property and Urban Law, Yale Law School, Jedediah Purdy, Professor of Law, Duke Law School, Daniel J. Sharfstein, Associate Professor of Law, Vanderbilt Law School, and Henry E. Smith, Fessenden Professor of Law, Harvard Law School.

The second panel discussion, "Defining Just Compensation: How Do You Get There and What Does It Mean?," presented three varying perspectives on just compensation from the view of academia, practicing attorney and presiding judge. The panelists who discussed Just Compensation included James W. Ely, Jr., Professor of Law Emeritus, Vanderbilt University, Joseph T. Waldo, Attorney, Waldo & Lyle, P.C., and The Honorable Robert W. Wooldridge, Jr., (Retired) Fairfax Circuit Court Judge and Senior Lecturer in Law, George Mason Law School.

Friday afternoon the Conference continued with a panel discussion entitled "Property Rights and the Commons." The academics on this panel included Michael A. Heller, Lawrence A. Wien Professor of Real Estate Law, Columbia Law School, Mark Sagoff, Director and Senior Research Scholar at the Institute for Philosophy and Public Policy, University of Maryland and Laura S. Underkuffler, J. Dupratt White Professor of Law, Cornell Law School. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School was scheduled to participate in this panel but was unable to attend the conference.

The Conference concluded with a panel discussion titled "The Uneasy Relationship Between Public and Private Property Rights" and focused upon the most recent takings case heard by the Supreme Court in 2009, Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection. James S. Burling, Principal Attorney, Pacific Legal Foundation and John D. Echeverria, Professor of Law, Vermont Law School presented their views of this case from their individual and competing perspectives. Both gentlemen authored amici briefs in the case - Mr. Burling on behalf of the property owners and Prof. Echeverria in support of the government. The heart of their discussion focused upon the fact that although the Court did not find that a taking occurred in this particular instance it also did not rule upon the doctrine of judicial takings or whether a court can "take" property via adjudication. Eminent domain attorney Leslie A. Fields, Partner, Faegre & Benson LLP in Denver, Colorado, moderated the discussion and posed a series of questions to stimulate debate.

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. Since 2004, the Brigham-Kanner Property Rights Conference has recognized outstanding scholarly contributions to the field of property rights with the annual presentation of the Brigham-Kanner Property Rights Prize.

The Conference was video taped and copies will be available for purchase from William and Mary Law School, contacting Kathy Pond at 757-221-3796 or ktpond@wm.edu to order.

Save the dates - October 14-15, 2011 - for the Eighth Annual Brigham-Kanner Property Rights Conference which will take place in Beijing, China. The 2011 conference will be held in conjunction with Tsinghua University School of Law in Beijing and promises to be quite amazing. More details, including the 2011 Property Rights Prize honoree, will follow as they become available.

Disclosure: Joseph T. Waldo, Leslie A. Fields, James S. Burling, Toby P. Brigham and Gideon Kanner are all members of the Owners' Counsel of America and represent private property owners in eminent domain.

UPDATE: See "Joyful Property Professor" Carol M. Rose Honored with 2010 Brigham-Kanner Property Rights Prize, Justice Sandra Day O'Connor to Receive 2011 Prize at Beijing Conference for more details and photos from the 2010 events.