Cedar Point Nursery – Big Win for Property Rights

The Supreme Court decision in Cedar Point Nursery v Hassid, 549 U.S. ___ (2021), decided on June 23, 2021, was hailed as a “big win for property rights.”  The 6 to 3 decision significantly bolsters protection of private property rights. The case involved the challenge by two farmers of a California regulation that required farmers to allow union organizers onto their property three hours a day for 120 days each year.  The farmers argued that the regulation was equivalent to a time-limited government easement and this constituted a “per se”… read more

Posted in Inverse Condemnation, Per Se Taking
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FEDERAL POWER OF EMINENT DOMAIN CAN BE DELEGATED TO PRIVATE PARTIES

The United States Supreme Court has rendered an usual number of decisions dealing with eminent domain.  On June 29, 2021, the Court decided PennEast Pipeline Co. v New Jersey, 594 U.S. __ (2021).  The Court held that the Federal Government had properly delegated to private companies’ federal authority to condemn necessary rights-of-way in state owned property. The Natural Gas Act regulates the transportation and sale of natural gas in interstate commerce.  The Act requires natural gas companies to obtain from the Federal Energy Regulatory Commission (“FERC”) a certificate recognizing that… read more

Posted in Delegated Power of Eminent Domain, Eminent Domain, PennEast Pipeline
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The Keystone Pipeline is Dead

The keystone pipeline was an oil pipeline system in Canada and the United States commissioned in 2010 and owned by TC Energy it was to run from the Western Canadian Sedimentary Basin in Alberta to refineries in Illinois and Texas and also to Cushing Oklahoma. The pipeline had significant opposition from environmentalists. In 2015, it was temporarily delayed by President Barack Obama. On January 20,2021 President Donald Trump took executive action to move the project forward. On January 2021 President Joe Biden signed an executive order to revoke the permit…. read more

Posted in Condemnation Procedures, Keystone Pipeline, Partial Takings
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The Independent Appraiser: Not Just a Pretty Title

In cases involving the issue of valuation of real property, the parties usually turn to an independent appraiser. Generally, this means that the appraiser is free from influence, guidance, or control of another or others.  We know that the appraiser will be somewhat biased in favor of the party who retained the expert.  But the Court will have some confidence that the appraiser will use good judgment and abide by a professional code.  The independent expert is also presumed not to have any conflicts in the assignment. Mostly importantly, the… read more

Posted in Condemnation, Conflict of Interest, Independent Appraiser
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No – You Do Not Get Immediate Possession

Some condemnation counsel believe that once their client obtains title that the condemnor can move on and possess the subject property.  Not so.  Vesting title is prescribed by Section 402 of the Eminent Domain Procedure Law. Most condemnations will be controlled by Subdivision B and take place in the Supreme Court.  The law sets strict requirements as to the necessary documents to be filed with a petition to condemn along with absolute time requirements for service. After fully complying with all statutory requirements, a Supreme Court Justice will sign an… read more

Posted in Condemnation, Possession, Title vesting
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Takings for Protective Dunes from Flagler to Fire Island

Flagler County, Florida announced that it would institute a condemnation proceeding to take 2,500 square feet of sand to enable the U.S. Army Corps of Engineers to rebuild dunes along 2.6 miles of beachfront in Flagler Beach.  The dunes are expected to prolong the life of the barrier island against rising seas, especially the homes and businesses along A1A. The condemnation is necessary because the owner refused to grant an easement like 100 other property owners did. The government argues that the easement changes nothing about property owners’ rights.  It… read more

Posted in Dunes, Severance Damages, Special Benefits
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We Don’t Need No Stinking Facts: The Incredible Misinformation of the Media, Eviction at Sheikh Jarrah

Hamas, an Islamist group that seized control of the Gaza Strip in 2007, has launched 1500 rockets into Israel so far.  The flash point for this violence is a simple land dispute in East Jerusalem.   The East Jerusalem neighborhood of Sheikh Jarrah was the location of the eviction of several Palestinian families following a ruling from Jerusalem’s District Court.  The families were represented by counsel.  An appeal has been taken to Israel’s Supreme Court.  But before the appeal can be heard, Palestinian Arabs have rioted nightly with violent eruptions… read more

Posted in Uncategorized
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When A Park Just Isn’t A Park

We represent Brinkmann Hardware Corp. which owns a wooded lot in Mattituck, Suffolk County.  The family-owned business operates four hardware stores across Long Island.  The Town of Southold has used every trick to prevent the construction of the Mattituck hardware store, including imposing a nonsense moratorium. Southold lost every round in Court, so what does it do when it cannot stop construction, authorize condemning the land. The Institute for Justice filed suit in Federal District Court to stop the condemnation alleging a violation of due process and the Fifth Amendment. … read more

Posted in Condemnation, Park, Public Purpose, Public Use, Uncategorized
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The Condemnor’s Burden to Demonstrate “But For” To Apply The Project Influence Rule

The Third Department got it right in Matter of State of New York v KKS Properties, LLC, 119 AD3d 1033, (July 3, 2014).  KKS Properties, LLC is one of those 1033decisions that make you cringe.  An award on an appropriation claim in the Court of Claims which is lower than the advance payment resulting in a judgment in favor of the State is an outrageous outcome for a compulsory taking of one’s property.  We have often advocated that there must be a minimum of “just compensation.”  A condemnor is required… read more

Posted in Condemnation, Project Influence Rule, Severance Damages
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A Funny Thing Happened on the Way to the Beach.

A long simmering dispute regarding the public’s use of the beach at Napeague, East Hampton culminated in a trial at Riverhead.  The homeowners landward of the beach brought suit against the Town of East Hampton and the Trustees of the Freeholders and Commonalty of East Hampton claiming ownership of the beach. Following a multi-day trial, the Court ruled in favor of the Town and Trustees and dismissed the action.  On appeal, the Appellate Division, Second Department reversed. 191 AD3d 77 (2021). But the proceedings are far from over since the… read more

Posted in Adverse Possession, Public Trust, Title to Beach
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