New York's Brief in Opposition to River Center's Cert Petition

The state has filed its Brief in Opposition to the property owner's Petition for Certiorari in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012).  This case involves one of the largest condemnations of private property in the history of New York City – the taking of the unused development rights of an entire city block located in the neighborhood of the Lincoln Center for the Performing Arts.  At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government’s power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use.  

Owners' Counsel has filed an Amicus Curiae Brief in this case on behalf of the property owner.  Here the Petitioner is seeking review of the decisions of the New York courts which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York.  The New York courts concluded that an owner whose property is taken by eminent domain must have specific plans that will "come to fruition" in the immediate future. The Owners’ Counsel brief argues that all evidence of value must be considered by a reviewing court, and it cannot disregard evidence that a potential buyer of the property would consider important in assessing value.

See our previous posts regarding this case here and here. See also Robert Thomas's post on this case here and here.  [Mr. Thomas prepared and filed the brief on behalf of Owners' Counsel.]

Brief in Opposition, River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (filed Mar. 2...

Owners' Counsel Welcomes Anthony Della Pelle as the New Jersey Member-Attorney

Owners' Counsel of America welcomes Anthony F. Della Pelle, Esq., CRE of McKirdy & Riskin, P.A. in Morristown, New Jersey as the New Jersey member dedicated to representing landowners throughout the State.  Mr. Della Pelle succeeds his partner, Edward D. McKirdy, Esq. who previously served as the  New Jersey representative.

Mr. Della Pelle concentrates his practice in the areas of eminent domain, redevelopment, and real estate tax appeals. He is a designated member of The Counselors of Real Estate®, an international organization of real estate practitioners who are recognized as the leading advisors in complex real property matters.  He holds Martindale-Hubbell’s® highest rating, AV Preeminent, and has been selected as a “New Jersey Super Lawyer” by New Jersey Monthly Magazine since its inception.  This year, he was recognized as one of New Jersey’s Top 10 attorneys in the New Jersey Super Lawyers Magazine.

Mr. Della Pelle blogs about eminent domain, redevelopment, and property tax appeals at the  New Jersey Condemnation Law Blog, www.njcondemnationlaw.com, and the New Jersey Property Tax Law Blog, www.realestatetaxappealsnj.com. 

 

“I am extremely honored to be elected as the New Jersey representative of Owners’ Counsel.  Its members are recognized nationally as leading property rights attorneys, and I look forward to working with them and collaborating in order to provide my clients with the best legal representation possible,”  said Della Pelle.    

To learn more about Mr. Della Pelle's career accomplishments, please visit his profile page on our website here.   

Remembering a Preeminent Condemnation Attorney, Jay S. Dushoff, Phoenix, Arizona

The Owners’ Counsel of America is greatly saddened by the death of our fellow Member and friend, Jay S.Dushoff.  A nationally recognized condemnation and property rights attorney, Mr. Dushoff passed away on March 21, 2012 in Phoenix, AZ following a long battle with cancer. 

Mr. Dushoff’s legal career spanned more than a half-century and included the representation of property owners in more than 5,000 eminent domain cases throughout Arizona and several other states. He focused his practice in the areas of eminent domain, inverse condemnation, commercial litigation, real estate and valuation litigation, land use and zoning.  Mr. Dushoff not only witnessed the evolution of condemnation law, but contributed to the development of this important legal specialty as a practitioner, speaker and author.

In 2009, Best Lawyers honored Mr. Dushoff’s extraordinary accomplishments, during its 25^th Anniversary event in Atlanta, Georgia. The event celebrated the distinguished careers of 1,397 lawyers, including Jay, who had been listed in the publication since its inception in 1983.

“Jay Dushoff was a dynamic individual and a committed and passionate attorney,” said Owners’ Counsel of America Executive Director, Cathy Newman. “We will miss his enthusiasm for private property rights, his wisdom and counsel, but most of all, his friendship.”

Mr. Dushoff graduated from the University of Pennsylvania (B.A., 1954), Phi Beta Kappa.  He obtained his law degree from Harvard University (J.D., cum laude, 1957). He is survived by his wife Souheir Alkhoury Dushoff, his daughter, Rachel, son, Eric, and step-son, William.

More details concerning Mr. Dushoff's exceptional career are available here.  

Updated 3/23/12: An obituary and guest book in Mr. Dushoff's memory are available online here. 

Government Restrictions on Groundwater Constitute Inverse Condemnation in New Jersey

Farmer Todd Kuehm has battled the Township of Montville for almost a decade seeking to simply use the groundwater beneath his land for irrigation.  Mr. Kuehm’s 28 acre farm is located on the Towaco Aquifer which supplies water to many area residents.  Despite the property’s natural water resources, Montville has prohibited Mr. Kuehm, a fourth generation New Jersey farmer, from using the groundwater to irrigate his crops.   As a result, the farm business has suffered damages as Mr. Kuehm has been unable to put his agricultural property to its highest and best use cultivating more lucrative crops.  Rather he has chosen to plant corn which requires less water and a lower financial investment to cultivate.

In December 2011, the Superior Court of New Jersey found that the restrictions placed upon the property by Montville constituted a taking under inverse condemnation.  The Court ordered the Township to pay Mr. Kuehm just compensation for the taking as well as his attorneys’ fees.  While Mr. Kuehm is seeking only $275,000 in damages as a result of the taking, the amount of just compensation due to Mr. Keuhm will remain undetermined for some time as the Township has appealed the Superior Court’s December 2011 ruling.

Condemnation counsel to Mr. Keuhm, Anthony Della Pelle* said in an article by Carla Townsend in The Daily Record, “I want to make sure that Todd is made whole for the deprivation of the property rights by the town so he can go on with his life and farm his farm.  With modern farming, especially here in this state where there’s so little land, you have to farm that land efficiently to make any money.”

For more background on this story, see Montville farmer’s battle over water rights and the NJ Condemnation Blog post New Jersey Farmer Growing More Dedicated in Fight Against Eminent Domain.  You can also watch an interview with Mr. Keuhm and his attorney, Anthony Della Pelle, on Fox News here or click below.

[Disclosure: Anthony Della Pelle, Esq., CRE is the New Jersey member of the Owners’ Counsel of America and a partner with McKirdy & Riskin, P.A. in Morristown, NJ.  Mr. Dell Pelle practices exclusively to the in the areas of eminent domain, redevelopment and property tax appeals representing private property owners throughout the state of New Jersey .]

Arkansas Jury Awards Property Owners Just Compensation Five Times the Government's Offer

Last week a jury in Boone County, Arkansas awarded two landowners $341,500 for private property condemned by the Ozark Mountain Regional Public Water Authority.  The verdict represents an increase of more that five times the $67,000 offer made to the owners by the water authority for their 29.87 acres.  

In 2010, Ozark Mountain condemned a portion of the property's 809.82 acres for the construction of a water intake and treatment facility.  The condemnation resulted in the loss of lake access for the remaining 779.95 acres. Of the 29.87 acres acquired, 20.36 acres were taken by Ozark Mountain to construct a 15 acre water treatment facility site and for buffer areas around the intake facility.  The remaining 9.51 acres were encumbered by permanent easements for the construction and use of roadways, transmission pipelines, and electrical distribution lines to service the facility which will supply water from Bull Shoals Lake to several cities, towns, and water associations in Boone, Newton, Marion, and Searcy Counties.  

Attorneys for the the landowners, Michael B. Phillips and Brandon Moffitt, asked the jury for $468,000 for the takings.  After three days of testimony, the twelve person jury deliberated for approximately an hour and a half before returning with their verdict of $341,500 as just compensation for the property taken. 

[Disclosure: Michael B. Phillips is the Arkansas Member of the Owners' Counsel of America.  Mr. Phillips and his partner, Brandon Moffitt, of Moffitt & Phillips, PLLC in Little Rock, represent property owners throughout Arkansas in condemnation proceedings.]

Will National Eminent Domain Reform be a Reality in 2012?

Last week (February 28), the United States House of Representatives passed by the Private Property Rights Protection Act of 2012 (H.R. 1443), which is intended to prevent the misuse of eminent domain for economic development.  The proposed bill is not a cure for eminent domain abuse.  Rather, it moves eminent domain reform forward on national level by cutting federal economic development funds to state and local governments that justify taking private property for economic development.  If a government violates the bill’s ban on economic development takings, federal development subsidies will be withheld for two years.  Further, the bill provides private property owners with the right to take legal action against any government entity that violates the provisions of the law.  

The Private Property Rights Restoration Act will provide American citizens in every state with the means to protect their private property from exceedingly unsubstantiated claims of eminent domain.  Under the legislation, if a state or political subdivision of a state uses its eminent domain power to transfer private property to other private parties for economic development, the state is ineligible to receive federal economic development funds for two fiscal years following a judicial determination that the law has been violated.  Additionally, the bill prohibits the federal government from using eminent domain for economic development purposes.

The protection of property rights is one of the most important tenets of our government.  I am mindful of the long history of eminent domain abuses, particularly in low-income and often predominantly minority neighborhoods, and the need to stop it.  I am also mindful of the reasons we should allow the government to take land when the way in which the land is being used constitutes an immediate threat to public health and safety.  I believe this bill accomplishes both goals.

Excerpted from the text of Rep. Jim Sensenbrenner’s remarks on the House floor introducing H.R. 1433.

As many will remember, this is not the first time that legislation has been introduced to limit the use of eminent domain for economic development.  Following the U.S. Supreme Court ruling in City of New London v. Kelo, the House passed a similar measure in response to the Court's decision and the national cry of outrage that followed.  Unfortunately, the 2005 legislation died in the Senate before making its way to the floor for a vote.  The current legislation, H.R. 1433, is now in the Senate Judiciary committee.  Let’s hope that this bill makes it to the Senate floor for a vote.

For more discussion on H.R. 1433 see also:   

•  House Passes Anti-Kelo Eminent Domain Reform

• Eminent Domain Reform Bill Passes the House

• Walsh: Congress Can Hault Eminent Domain Abuse

More Amicus Briefs Filed in Support of Property Owner in Just Compensation Case

Two other amicus briefs have been filed in support of the petitioner in River Center LLC v. Dormitory Auth. of the State of New York, No. 11-922 (cert. petition filed Jan. 23, 2012).  [Disclosure: Owners’ Counsel has also filed an amicus brief in support of the petitioner, see our previous post here.]  

Motion for Leave to File Brief and Brief for Real Estate Board of New York, Inc., International Council of Shopping Centers, National Multi Housing Council, and Real Estate Roundtable as Amici Curiae in Support of Petitioners 

Presents the following question: 

Whether state-court valuation rules in condemnation proceedings that systematically exclude or ignore all relevant market-based evidence favorable to the owner on the value of a parcel in development afford the owner of real property “the full and perfect equivalent in money of the property taken,” as required under the Just Compensation Clause of the Fifth Amendment to the United States Constitution?

 

Motion for Leave to File and Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of the Petitioner  

Presents the following question: 

Does just compensation under the Fifth Amendment for a taking by eminent domain include

the value of land uses that the condemning agency illegally sought to delay and frustrate?

This case involves one of the largest condemnations of private property in the history of New York City – the taking of the unused development rights of an entire city block located in the area of the Lincoln Center for the Performing Arts.  At issue are important questions about the Just Compensation Clause of the Fifth Amendment which limits the government’s power of eminent domain by requiring that "just compensation" be paid to an owner if private property is taken for public use. The property owner is challenging the compensation awarded by the New York courts for the condemnation of its private property. 

The petitioner in River Center filed a Petition for Writ of Certiorari seeking review of the New York courts, which denied the landowner and developer the right to present evidence concerning the value of land taken by the Dormitory Authority of the State of New York.  The petitioner had the intention of developing the property into a multi-use commercial, retail, and residential complex.  Its plans and ability to do so, however, were severely restricted by the Dormitory Authority’s strategic interference over 19 months to deny the re-zoning of the property and delay construction.  When the property was eventually condemned by the Dormitory Authority in 2001, the intended development had not yet broken ground.

For more information visit inversecondemnation.com; blogger and attorney, Robert Thomas, prepared and filed OCA’s amicus brief in this case. [Disclosure: Robert is also the Hawaii member of the Owners’ Counsel.]