TRUMP REVIVES KEYSTONE AND DAKOTA PIPELINES

President Trump signed an Executive Order on January 24, 2017 reviving the Keystone XL and Dakota Access Pipeline projects.  Former President Barack Obama rejected the Keystone 1,179 mile pipeline in 2015. When he signed the Order, Mr. Trump recited that the pipeline would bring 28,000 construction jobs.  But according to the New York Times, “studies showed that the pipeline would not have a momentous impact on jobs.”  New York Times, January 24, 2017.  The President also indicated that he would renegotiate the terms with the pipelines. The President also seemed… read more

Posted in Pipeline Takings
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CAN A PUBLIC BENEFIT CORPORATION INSIST ON CONFIDENTIALITY AS PART OF A SETTLEMENT AGREEMENT?

Counsel for public benefit corporations often insist on the inclusion of a confidentiality provision in their settlement agreements.  Often claimants refuse to agree.  But many claimants are anxious to finally wind up their litigation and recover their award.  The issue is can a public benefit hide the payment of just compensation?  Isn’t the settlement something of great concern to the public, the press, legislative overseers and the bar in general?  An often overlooked consequence is that a claimant agreeing confidentiality may find unanticipated tax consequences.  See, for example, Amos v… read more

Posted in Confidentiality, Settlement Agreements
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PIPELINE TAKINGS – TIME TO RECONSIDER THEIR POWER OF EMINENT DOMAIN

If you monitor eminent domain issues on a national level, you must be aware that by far the greatest controversy has focused on pipeline takings. The United States has the largest network of energy pipelines in the world, generally accepted to be 2.5 million miles, more recently, because of fracking, massive new pipeline building has been taking place.  Most of those lines are for oil.  Some states make a distinction between oil and gas pipelines.  Gas pipelines would not have the federal statutory priority and would be subject to state… read more

Posted in Partial Takings, Pipeline Takings
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IF REAL PROPERTY WAS CONDEMNED FOR A PUBLIC PURPOSE, MAY IT BE CONDEMNED AGAIN FOR ANOTHER USE?

Generally, a property presently used for a public purpose may not be condemned.  See New York, L. & W.R. Co. v Union Steam-Boat Co., 99 NY 12 (1885).  Nor may property owned by a higher sovereign be acquired without consent.  This is known as the prior public use doctrine.  As the New York State Court of Appeals has noted, “[t]o defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear.”  In re City of Buffalo, 68 NY 167, 175… read more

Posted in Condemnation Procedures, Eminent Domain
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SUPREMACY CLAUSE? WE DON’T NEED NO STINKING SUPREMACY CLAUSE!

On December 7, 2016, the Appellate Division, Second Department handed down Monroe Equities, LLC v State of New York, 2016 NY Slip Op 08206.  The decision affirmed the dismissal of a claim for damages based on the contention that the application of watershed regulations precluding the right to install a septic system constituted a per se taking under Lucas v South Carolina Coastal Council, 505 US 1003, requiring compensation under the Takings Clause of the United States Constitution because claimant was deprived of all economically beneficial use of its property…. read more

Posted in Recent cases, Regulatory Taking
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WHEN A JUDGE GETS IT ABSOLUTELY RIGHT: Matter of Village of Haverstraw (AAA Electricians, Inc.)

Like many condemnation proceedings by small towns and villages, the Village of Haverstraw taking of some 19 acres owned by our client AAA Electricians, Inc. represented a severe example of eminent domain abuse. The vacant land was taken for the construction of luxury condominiums on the Hudson River.  By Decision and Order dated August 5, 2016, the Honorable Bruce E. Tolbert awarded the claimant $1,190,582 as an additional allowance pursuant to Section 701 of New York’s Eminent Domain Procedure Law. The case was litigated over a thirteen year period of… read more

Posted in Additional Allowances, Eminent Domain
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“Property Rights as Defined and Protected by International Courts”

The following is an excerpt of a paper presented by Michael Rikon, “Property Rights as Defined and Protected by International Courts,” which was presented at 2015 Brigham-Kanner Property Rights Conference, The Hague, Netherlands, on October 21, 2015. The right of an individual to own property may be traced to the French Revolution and the United States Bill of Rights.  As American Lawyers, we assume, not only the right to own property, but the right to compensation if that property is taken by the government.  That process is known as eminent… read more

Posted in International Courts, Judicial view, Lawyers
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A Perfect Example of The Highest And Best Use Concept

On September 21, 2016, New York’s Appellate Division, Second Department, handed down Matter of 730 Equity Corp. v New York State Urban Development Corp., __ AD3d ___, 2016 NY Slip Op 06086 (2d Dep’t 2016). If there was an eminent domain case book, this decision would be included as an example of establishing a highest and best use in a condemnation. The claim involved a one-half acre parcel of vacant land on Atlantic Avenue, Brooklyn, New York.  The land was under a long term triple net lease to a major… read more

Posted in Highest and Best Use, Recent cases, Zoning
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How Do You Stop a Pipeline? Answer: Get POTUS to Help.

An estimated 8,000 people from 150 different Native American tribes in the U.S. and Canada have come together to stop the Dakota Access Oil Pipeline.  They have been joined by many more people concerned by the environmental threat and the abuse of eminent domain. The 1,172 mile long pipeline has an estimated cost of $3.7 billion and will pump nearly a half a million gallons of light crude from the Bakken Shale in North Dakota across South Dakota and Iowa to its terminus in Pakota, Illinois. The Standing Rock Sioux,… read more

Posted in Eminent Domain, Energy, Energy Use
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Landowners May Appeal To The Judiciary If Property Is Designated As Wetlands Subject To Federal Jurisdiction

This blog follows an article Michael Rikon wrote which was published in the New York Law Journal on August 26, 2016. Wetlands are areas saturated by surface or ground water sufficient to support distinctive vegetation adapted for life in saturated soil conditions.  The New York State Department of Environmental Conservation regulates two main types of wetlands, tidal wetlands along Long Island, New York City and up the Hudson River, and freshwater wetlands found on river and lake flood plains across the State. But wetlands may also be regulated by the… read more

Posted in Uncategorized, US Supreme Court cases, Wetlands
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