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June 13, 2011 Presented by: John C. Murphy, Esq. Brad B. Grabske, Esq.

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.

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June 13, 2011 Presented by: John C. Murphy, Esq. Brad B. Grabske, Esq.

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  1. 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.

  2. "It's tough to make predictions, especially about the future" Yogi Berra

  3. “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

  4. “Change is inevitable – except from a vending machine.”Robert C. Gallagher

  5. 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

  6. 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

  7. 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

  8. India

  9. 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

  10. Japan – Kansai International Airport

  11. Australia

  12. 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.

  13. Eight Key Issues: 2010-2011 ●MoreBalance In Legislative Reform ●FewerJudicial 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

  14. 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.”

  15. "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." Downturn In Economy

  16. “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

  17. Legislative Update States That Enacted Major Eminent Domain Reform Laws Since June 2010: ● Texas ● Nevada ● Minnesota ● Oklahoma

  18. 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.

  19. Four Reasons Underlying Legislative Reform ● Lingering Anti Kelo Backlash ● No Real Constituency ● Downturn In Economy ● Sophisticated Opponents

  20. 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

  21. 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

  22. 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)

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

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

  25. 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

  26. 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

  27. Factors Behind The Trends ●More Tolerance of Government Economic Activism ●Focus On Job Creation/Stimulus ● Changing Judiciary ●Stare Decisis ●Lessons of History (1929-1939)

  28. QUESTIONS?

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