May 13th, 2015

Katrina Flooding leaves Army Corps of Engineers Liable for a Taking

The Court of Federal Claims in  St. Bernard Parish Gov’t v. United States, No. 05-1119L (May 1. 2015) – has ruled in favor of a class of plaintiffs including St. Bernard Parish (Louisiana has parishes instead of counties) and citizens of the Ninth Ward in New Orleans for flooding damages they suffered when the levees broke during Hurricane Katrina. Plaintiffs asserted the United States, and specifically the Army Corps of Engineers, decisions to reroute the flow, build levees and failures in maintaining the levees led to the flooding and constituted an inverse condemnation/temporary taking of their property.

Spinning Nightmare

In a lengthy but fascinating opinion, the Court details the history of the extreme southern Mississippi River Delta and the changes made to the flow, including levee construction. Summing it all up, the Court held:

The Army Corps’ construction, expansions, operation, and failure to maintain the MR-GO caused subsequent storm surge that was exacerbated by a “funnel effect” during Hurricane Katrina and subsequent hurricanes and severe storms, causing flooding on Plaintiffs’ properties that effected a temporary taking under the Fifth Amendment to the United States Constitution.

For the whole opinion, click here brought to you by our friends over at inversecondemnation (see their full writeup on the case here.




June 4th, 2014

Osceola Parkway sparks resident furor

Look at all the landowners under that footprint

Look at all the landowners under that footprint

The Osceola Expressway Authority held a public meeting last Thursday night to roll out five alternative alignments of where their proposed roadway extension will be located. Project engineers attempted to explain to a packed house the process and need for the parkway. We were in attendance to see these proposed corridors and help property owners determine which ones would or would not impact them.

Many home and property owners indicated this was the first they were hearing of the parkway potentially impacting their homes or property. This is alarming. Even worse, many of these owners were even more confused and surprised to find out their properties, many of which are in Orange County, are being threatened by the Osceola County Expressway Authority.

Pursuant to legislation the Governor is expected to sign soon, the Orlando/Orange County Expressway Authority will become the Central Florida Regional Expressway Authority which will have board members drawn from Seminole, Orange and Lake Counties. Osceola County was to merge into the CFREA, but that was delayed by certain legislators who fought to delay the Osceola County Expressway Authority’s absorption until 2018, giving the Osceola Expressway Authority time to complete 3 major projects, including the extension of Osceola Parkway. Given the significant opposition that showed up to make their voices heard on Thursday, some serious decisions need to be made and quickly so that these hundreds of property owners, home owners and developers are not stuck in limbo waiting to find out if their property will be impacted.


See News13’s story here.

WFTV covered the meeting as well, here.






April 11th, 2014

Bailouts a Taking?

Another victim on the Boulevard of Broken Dreams
Photo by John Martinez Pavliga, Berkeley, USA

Here’s an unusual takings (maybe?) case making its way through the Federal Courts:

A&D Auto Sales v. U.S.

The issue goes something like this. As part of the bailouts of GM and Chrysler, the Feds mandated that these two automakers cancel franchise agreements with certain dealerships, including the Plaintiffs.

Plaintiffs brought suit alleging a taking of their franchise agreements. But are these franchise agreements ‘property’ as defined by the Constitution and case law protecting property? The government argued no, moving to dismiss the case and also argued that the terminations were not causally linked to the government demands.

The Court of Federal Claims refused to dismiss, and the Federal Circuit agreed, saying this unique case of first impression warranted a continued look, but sent the case back down for the Plaintiffs to amend their complaint to more clearly define and explain that the government action, not the financial situation for GM and Chrysler, caused the loss in value.

Stay tuned, this could get interesting as more facts are developed in the case.


February 17th, 2014

Eminent Domain and Mortgage Foreclosure


Sign of the Times

We live in the age of foreclosures. The courthouses are filled with pro se litigants, trying to find the proper hearing room, or showing up 20 minutes late and missing the hearing entirely.

None of this has stopped Florida’s population growth and the deterioration of our roads. FDOT and other condemning authorities can’t wait around for the foreclosures to work their snail’s pace through the system. So the ‘condemnation in concert with foreclosure’ has become more of a rule than exception in residential eminent domain matters.

Several of our attorneys are currently on all sides of this issue. In one case, we represent a property owner who was already deep in a foreclosure case when he received notice of a taking, creating a tangled web of interacting and overlapping interests of the taking authority, bank, courts and property owner.

In other cases, we are working on behalf of a condemning authority which needs a portion of property for a public project. The problem is the property is deep in foreclosure and the owner is nowhere to be found.

Finally, the third side. In yet other cases, we work on behalf of banks which have been put on notice that they have an interest in, or a property they are in the process of foreclosing has been slated for partial acquisition.

The unique issues created when these two claims colide have yet to make it to the appelate courts, and questions still abound. For example, does the condemning authority take subject to the foreclosure? Could they end up paying the wrong party if the Court grants the foreclosure? What are an owner’s rights to the proceeds in an eminent domain action where they are already in foreclosure?

No matter whether you are an owner, bank or represent a condemning authority, the first step is to check your mortgage. Most, if not all, have a provision entitling the bank to some or all of the proceeds of any condemnation, provided they are applied to the outstanding balance. Moreover, many contain provisions allowing the bank, either always or in situations where the owner is not appropriately defending their title, to hire attorneys to stand in the owner’s shoes and contest the taking or argue for appropriate compensation.

Foreclosure Notices make for a nice wallpaper at the Courthouse

The real Gordian Knot comes where a condemning authority needs only a portion of property already in a mortgage foreclosure. There, a lis pendens has been filed on behalf of the bank seeking the foreclosure judgment. A lis pendens is a document filed in the public records putting the world on notice that there is a lawsuit out there, or a claim, where someone other than the title holder is asserting a right to title to a piece of property. Anyone who acquires title to the property while a lis pendens is in place may be doing so subject to the outcome of the litigation.

This means the condemning authority may or may not (depending on who you ask) be willing to go forward and secure title to the property. The competing theories are as follows: (1) with a lis pendens in place, any title transferred is subject to the decision of the foreclosure court where the case is pending. In this scenario, if a condemning authority obtains title from the fee owner, ignoring the mortgage holder’s lis pendens, the condemning authority could be taking the property subject to the outcome of the foreclosure case. In this scenario, the condemning authority may end up taking the property twice. Because of this, many condemning authorities want clarity in the title and concert between the eminent domain case and the foreclosure matter.

Alternatively, the power of condemnation may not subject to a lis pendens, as all property is held subject to the sovereign’s ultimate right to retake it. While this is probably the legally correct view, the practical application of this in system with title insurers who want title as clear as possible remains murky.

If you or your clients are experiencing both foreclosure and an eminent domain suit and would like more information on this topic or to discuss it further, feel free to contact us.

Constitutional Law,Florida Eminent Domain

August 1st, 2013

FPL Moves Forward with Two Natural Gas Pipelines

Florida property owners will face eminent domain battles over two natural gas pipelines set to be built in the state, totaling approximately 340 miles.

Florida Power & Light Company has awarded the bids for the construction of two new natural gas pipelines in the state of Florida.  Sabal Trail Transmission, LLC will construct a new 214-mile pipeline running from the Florida-Georgia border to FPL’s Central Florida Hub in Osceola County.  From the Central Florida Hub, Florida Southeast Connection, LLC will build a new 126-mile pipeline to transport natural gas to FPL’s Martin County Clean Energy Center.

**Click here for a map of the proposed Sabal Trail Transmission route, and click here for a map of the proposed Florida Southeast Connection route, both of which are still subject to change.

Both of these projects will require FPL to use the power of eminent domain to acquire private property for the pipeline construction.

In Florida, property owners who are faced with eminent domain takings are not without protection.  The Florida Constitution and Florida Statutes require a condemning authority to pay “full compensation”  for an eminent domain taking.  This includes both the full value of the property taken, as well as any damages to the remaining property.  In addition, in Florida, the condemning authority is required to pay the owner’s attorneys’ fees and reasonable costs, including costs associated with hiring a team of experts to evaluate the taking and its effects.   Often this will include a real estate appraiser and an engineer, and many times a land planner.

Property owners in Florida have no obligation to take the first offer made by the condemning authority.   For more information about these projects or if you have questions about the potential impacts to your property, please contact us.

Florida Eminent Domain