Www.murphyevertz.com 650 Town Center Drive, Ste. 550, Costa Mesa, CA 92626 (714) 277-1700 Eminent...

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650 Town Center Drive, Ste. 550, Costa Mesa, CA 92626 (714) 277-1700

Eminent Domain Update:

New Developments In Eminent Domain Law Across The Country . . . And Around The World

(2010 – 2011)

June 13, 2011

Presented by:

John C. Murphy, Esq.Brad B. Grabske, Esq.



"It's tough to make predictions, especially about the future"

Yogi Berra



“Neither a wise man nor a brave man lies down on the tracks of history to wait for

the train of the future to run over him.”

Dwight D. Eisenhower



“Change is inevitable – except from a

vending machine.”

Robert C. Gallagher



China Facts

Population: 1,226,718,015

World Ranking: 1

Land Area: 9,596,961 sq km

World Ranking: 4

GDP: $10.09 Trillion

World Ranking: 3







China Backs Property Law, Buoying Middle Class

- New York Times, 3/16/07

-Beijing’s Property Rights Revolution

- Investors Business Daily, 3/23/07

China’s Property Law “Ends Capitalism Debate,” Backers Say

- Deutsche Press, 3/16/07









India Facts

Population: 1,189,172,906

World Ranking: 2

Land Area: 3,287,263 sq km

World Ranking: 7

GDP: $4.06 Trillion

World Ranking: 5



India



Japan Facts

Population: 126,475,664

World Ranking: 10

Land Area: 377,915 sq km

World Ranking: 61

GDP: $4.31 Trillion

World Ranking: 4



Japan – Kansai International Airport



Australia









Judicial Overview

● 175 Noteworthy Federal And State Published Opinions.

● About 20% Federal Courts. 80% State Courts.

● Wide Range of Issues - - From Public Use To Access Impairment.



Eight Key Issues: 2010-2011● More Balance In Legislative Reform

● Fewer Judicial Limitations On Public Use

● Relocation Act Violations – Remedies?

● Access Impairment – Bright Line Rules?

● Environmental Remediation Costs – An Offset?

● Dedication Requirements – An Offset?

● Abandonment

● Agency Misbehavior



Suzette Kelo

“This has nothing to do with me. I’m nothing, I’m a nobody. This is every U.S. citizen, every American. No homes, no properties, no farms. Nothing is safe anymore.”



Downturn In Economy "If a legislator

wants to hurt job creation in Mississippi during this recession and forever after, a vote to override this veto is the best way to achieve that terrible outcome."



“You would never build any big thing in any big place in any big city in

this country if you didn’t have the power of eminent domain.”

New York City Mayor Michael Bloomberg





Legislative Update

States That Enacted Major Eminent Domain Reform Laws Since June 2010:

● Texas

● Nevada

● Minnesota

● Oklahoma



Texas’ New Eminent Domain Law

● Applies Only To Condemnation Initiated After September 1, 2011.

● Authorizes Government Agencies To Exercise Eminent Domain Only To Effectuate A Public Use.

● Replaces Statutory Phrase “Public Purpose” With The Phrase “Public Use.”

● Leaves Public Use Definition To The Texas Courts.

● Increased Procedural Requirements - - Including Public Notice And Hearing Requirements.

● Spells Out The Details Of Bona Fide Acquisition Offers. Certified Appraisal Must Accompany Offer.

● Amends Statutory Right To Repurchase Property Taken By Eminent Domain. Makes Repurchase Price The Original Price Paid By The Condemning Entity.



Four Reasons Underlying Legislative Reform

● Lingering Anti Kelo Backlash

● No Real Constituency

● Downturn In Economy

● Sophisticated Opponents



Public Use Opinions

● Exxonmobil Pipeline Co. v. Union Pacific Railroad Co. (La. 2010) 35 So.3d 192

● City of Los Angeles v. Superior Court (Plotkin) (2011) 194 Cal.App.4th 210



Relocation Act Violations

● State D.O.T. v. Evans (Okla. App. 2010) 241 P.3d 273

● Delancey v. City of Austin (5th Cir. 2009) 570 F.3d 590



Access Impairment

● Canteen Service v. Indiana D.O.T. (Ind. App. 2010) 932 N.E. 2d 740

● Kimco of Evansville, Inc. v. State of Indiana (Ind. 2009) 902 N.E. 2d 206, Cert. Denied, 130 S.Ct. 1135 (Jan. 2010)

● Frick v. City of Salina (Kan. 2010) 235 P.3d 1211

● Wardany v. City of San Jacinto (May 27, 2011, C.D. Cal. Case No. 5:09-cv-00299)



Environmental Remediation Costs

● Moorhead Economic Development Authority v. Anda (Minn. 2010) 789 N.W. 2d 860



Dedication Requirements

● Palizzi v. City of Brighton (Colo. 2010) 228 P.3d 957



Abandonment

● St. Louis County v. Berck (Mo. App. 2010) 322 S.W. 3d 610

● Gramm v. City of Stockbridge (Ga. App. 2009) 676 S.E. 2d 818

● Norma Faye Pyles Lynch Family Purpose LLC. v. Putnam County (Tenn. 2009) 301 S.W. 3d 198



Agency Misbehavior

● Kearney v. Foley & Lardner (9th Cir. 2009) 582 F.3d 896

● New England Estates v. Town of Branford (Conn. 2010) 988 A.2d 229



Factors Behind The Trends

● More Tolerance of Government Economic Activism

● Focus On Job Creation/Stimulus

● Changing Judiciary

● Stare Decisis

● Lessons of History (1929-1939)



QUESTIONS?

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