Owners Counsel of America Honors an Outstanding Lawyer




A graduate of the University of Arizona College of Law, Mr. Burling joined the Pacific Legal Foundation as an attorney in 1983. Over the last 3 decades, he has litigated cases involving regulatory takings, environmental and land use regulations, eminent domain, and Indian law. In 2001, Mr. Burling successfully argued a landmark property rights case, Palazzolo v. Rhode Island, 533 U.S. 606 (2001), before the United States Supreme Court. Palazzolo established that government is not freed from liability for regulatory infringements against property rights simply because the property might be transferred to a new owner.

Mr. Burling is the Chairman Emeritus of the Federalist Society’s Environmental Law and Property Rights Practice Group and a member of the American College of Real Estate Lawyers. He is a frequent lecturer at continuing legal education courses on topics such as the regulation of wetlands, eminent domain, and the taking of private property. He has also been a panelist at the Brigham-Kanner Property Rights Conference, including the 2011 international conference in Beijing, China. Mr. Burling is often invited to speak before community and property rights organizations on subjects ranging from the regulation of wetlands and endangered species, federal land policy, zoning, regulatory exactions, the public trust doctrine, and the condemnation of private property.

Read more: http://www.sfgate.com/business/prweb/article/Owners-Counsel-of-America-Honors-PLF-Attorney-4241725.php#ixzz2K1gu4d9f

James Burling, who has worked in the trenches on behalf of property owners for years, deservedly received the Owners Counsel of America 2013 Crystal Eagle Award, signifying his outstanding efforts on behalf of private property ownership. As the Director of Litigation for the Pacific Legal Foundation, Jim has been a pillar working on behalf of private property ownership, dealing with almost every relevant property rights case in our judicial system. He deservedly has received an award and is to be credited with the wonderful work he has done over the years.

Water Company Facing the Meat Cleaver

In setting up the public hearings requiring a response after holding pro-government hearings to acquire a portion of Aqua Indiana, Fort Wayne is setting up Aqua Indiana for a Star Chamber proceeding. However, numerous meetings ahead of time is an invitation for people to be revved up and angry without regard to whether the utility properly can service the community. This is a tough way for a utility invested in the community to fairly have the opportunity to respond. Is this process really required?




The Indiana Utility Regulatory Commission is requiring Aqua Indiana to improve its system in the event of another drought that could create what the commission deems an unacceptable fire protection risk because of the possibility of inadequate water pressure.

On Nov. 30, the IURC released the second phase of an audit evaluating the utility’s ability to meet challenges it faces serving southwest Fort Wayne residents during a drought.

City of Fort Wayne officials said the audit findings support a decision to move forward with the condemnation process. But the company believes it can make other arrangements with the city that would render condemnation unnecessary.

About 70 percent of Aqua Indiana’s 12,000 southwest Fort Wayne customers live within city limits, and Henry has said he is committed to helping them solve the water challenges they face.

Indiana Water Utility Fight Continues

The issue of whether a party may demand a jury trial is established in almost every jurisdiction. However, a northern Indiana water authority has taken a position that the factual determination of value can be established only by a judge. The notion is that the just compensation appeal is simply from a Board of Public Works' administrative decision.

Despite the Journal Gazette article claim that the decision is likely to be upheld by the Supreme Court, do not be surprised if the notion that juries should determine value in Indiana condemnation proceedings is confirmed by the Indiana Supreme Court.

Fort Wayne Journal Gazette 

Though the state’s highest court will hear legal arguments Sept. 27, the court still will not set the price. The issue now before the court is a Utility Center appeal of a judge’s ruling that the judge will determine the price after a hearing, and the issue will not go to a trial before a jury. The Indiana Court of Appeals upheld that ruling, noting that the role of the lower court is to hear an appeal of the Board of Public Works’ administrative decision to set the price. The judge should examine how the board of works made its decision but not hear testimony and start from scratch in setting a price.

If the Indiana Supreme Court sides with the city, which seems likely, the case goes back to the county court. After that decision is inevitably appealed, the case could well go to the Supreme Court a third time.




Indiana Senate Passes Eminent Domain Compensation Bill

Although the Indiana Senate has now passed a bill that would directly help an individual’s fight against a university expansion, the proposed law must still be approved by the House and Governor.

Frequently, bills easily traverse one chamber of the legislature, only to face a myriad of problems in the second. This is the same type of issue that may occur in Virginia, as its legislature prepares to tackle eminent domain reform during the upcoming legislative session.

Muncie Free Press

The Senate voted 34-13 on the bill filed by Sen. Doug Eckerty, R-Yorktown, that would benefit his Good Government friend ChrisHiatt  who could lose his campus Hiatt Printing business to Ball State University. Sen. Tim Lanane, D-Anderson, voted against the bill that had been opposed by Ball State, Indiana University, Purdue University and others.

 Eckerty said the change would rectify present eminent domain law, which does not require universities to consider loss of future income when providing compensation to business owners. Universities now pay the fair market value of the building and property. 

The Inherent Problem of Government Officials' Property Being Acquired By The Government

A former mayoral candidate challenged the City of South Bend’s acquisition activity. Rather than having South Bend obtain his property through eminent domain, the candidate sold it to the private redevelopment agency for three times the appraisal price.

The amount the city wound up paying for this transaction raises issues of its own. To say that Mr. Curry, the unsuccessful candidate, would be unlikely to find greater political success in the future, is an understatement.


The City of South Bend found a way to complete the Family Dollar deal, but it won’t be buying the home of former mayoral candidate Wayne Curry.

“Property rights were, as far as I’m concerned, were upheld since eminent domain was not used and it was a private purchase by the developing entity,” Curry told News Center 16 on Tuesday.

You may remember that the City of South Bend tried to take Curry’s home through the use of eminent domain, but Curry fought back by filing a civil lawsuit.

In an out of court settlement, Curry recently sold his home directly to the subdivision developer—the Northeast Neighborhood Revitalization Organization (NNRO) for $355,000.

As part of the out of court settlement, the city has dropped its eminent domain proceedings, and Curry has dropped his lawsuit.

While Curry was given a chance to buy a new home in the new subdivision, he turned that offer down.
“There are certain rules and stipulations in the new subdivision that, things I, like, like a hot tub for instance, isn’t allowed in the new subdivision…you just have a lots of rules and things I didn’t particularly care for.”

While the financial settlement will allow Curry to buy a new home somewhere in South Bend, it won’t buy him the happiness he had.

Flood Plain Protection Moves Forward in Indiana

The article below describes a growing legal battle between a farmer and a Conservancy District. Landowners claim the District is not a public entity because it does not hold meetings or office hours, among other factors. Of course, the County truly runs the District. Further, the Court has granted the District the right to enter property to establish whether it has any archeological value and would make a good flood detention area. Most likely, the District will be able to exercise taking power.

We can readily foresee water retention becoming a substantial issue with the increased rainfall and high water level along the Mississippi and its tributaries this year. Indeed, if rainfall continues to increase, eminent domain proceedings for water retention will become very frequent throughout the United States. 

News and Tribune

During the legal battle, Lewis claimed the conservancy district did not have the right to claim eminent domain because it was not meeting the requirements necessary for a public entity. It was claimed the district was not holding regular public meetings, did not have a public office and regular office hours and was failing to offer a certain level of transparency. The district also collects taxes from local residents in the area to the tune of about $40,000 per year to support its operations.

A court order recently granted entry onto the former Lewis property in order to conduct a survey and an appraisal to determine its value.

Mead said the district has the right to enter on anyone’s land to conduct surveying work in furtherance of the district. And the work had been long-delayed. He said AMEC was ready to conduct an investigation of the archeological site in 2006, but Lewis refused to grant them access to her property.

School Land for Airport

Post Trib

School officials were waiting for their attorneys to review the decision.

"(The resolution) is an option they have threatened to exercise in the past," said School Board President Nellie Moore. "If that's what they choose to do instead of a more amicable resolution, then I have no problem with that."

School district attorney Ragen Hatcher was less diplomatic.

"I would think they would've at least invited a representative from the school district to the meeting," Hatcher said of the Board of Works decision.

According to the city's resolution, the impasse comes after three years of "extraordinary good faith efforts" by the city and the airport to reach a deal with the schools.

"The action avoids any more delays to the timetable for the (runway) expansion," Curry said, "and now a court of law will determine the appropriate value of the land."

Why would a school system expect any different treatment than any other owner?  Governments rarely truly provide notice to the owners of property when it decides to utilize the eminent domain process.  However, the process in most States does require some attempt to negotiate prior to the filing of a condemnation complaint.  Indiana, where this taking is to occur, has a process.

Airport Wants School Property

 Gary Post Tribune

But the School Board -- facing a fiscal deficit -- wants $3.75 million for the land. That's terribly unrealistic, even if the schools would choose to preserve the land and include it in its curriculum.

The School Board now is taking the insanity to a new level by spending $30,000 on an appraisal. It would appear the School Board knows acquisition of the land is vital is the Airport Authority, and as a result is demanding an outrageous price.

Litigating the matter isn't the answer. That will be the case if the two sides can't agree and the city proceeds with eminent domain, as it threatened last week.

We hope Mayor Rudy Clay steps in, brings the two sides to the table and issues the following mandate: Don't leave the room until you have settled the matter.

What is good for the airport is good for the city of Gary, including the schools. The airport remains the city's greatest hope for the future. Further delays would be unconscionable.

Often, we need to have the judicial system intervene on behalf of two behemoths, such as a city and an airport.  The Gary, Indiana situation above is not an exception.  The dispute involved federal funds to acquire land versus individual community vested tax dollars.  In the case of education funding, the tax dollars are usually derived from real estate assessments.  The Gary newspaper is simply way off base!


Developer Bails in Indiana

Indiana Business

Cleveland-based Fairmount Properties has pulled out of a $100 million redevelopment project in downtown Fishers, northeast of Indianapolis. The developer says the current state of the economy, combined with the number of homes which would need to be acquired, makes it difficult to complete the project in Hamilton County. A number of public meetings will be scheduled to receive input on the future redevelopment of the area.


During good times, it is often unnoticed when the public provides land to private redevelopers.  Accordingly, people are often more likely to ignore the overall likelihood the project will fail. However, what has occurred in Fishers, Indiana is but an example of what we are facing because of the present financial crunch. The ones left 'holding the bag' will too often be the citizens of the community who elected the public officials that made the ill founded decision.

Asking Judge to Reconsider

Indy Star

Hamilton County officials have decided they want a judge to reconsider his ruling in an eminent domain lawsuit that would provide additional parking in downtown Noblesville.

Superior Court 1 Judge Steve Nation ruled against the county in July in its attempt to obtain land through condemnation of McMillan's Auto Care in the 500 block of Conner Street.

The judge said the county's case was flawed because it failed to show how the property would be used or even why it was needed.

County commissioners filed a legal motion Friday to correct errors in Hughes' ruling. Chuck McMillan, the property's owner, has until Sept. 30 to respond to the motion.

In his initial ruling, Nation noted the county had access to 344 parking spaces leased from Riverview Hospital and said their availability made it less crucial for the county to take over the McMillan property.


-Governmental agencies all too frequently prevail in these uncertain cases of unknown or unjustifiable desire to take property. 

Some day, the courts will really review whether the finding of a taking is indeed an error of law or abuse of discretion, a standard that all too often leads to a result where the government is perceived to make no mistake even though there is clearly a mistake.

Motor Speedway Project

The Indy Channel, April 20, 2008

Speedway is a step closer to making big changes near the Indianapolis Motor Speedway despite the efforts of some residents to derail the project.

Some people are upset that the Speed Zone development plan would force them off their properties.

"The unfortunate thing is that the plan that they have put together basically is a steamroller," said Danny Williams, owner of Pit Stop Liquor.
Supporters of Speed Zone said it would make the area around the speedway a more desirable destination.

"I think that the changes that we're proposing will revitalize this area," said Scott Harris, who is on the redevelopment commission.
The commission on Monday voted in favor of acquiring about 40 pieces of property to move forward with the project.

The commission will get appraisals on properties and begin negotiations with owners. If needed, officials said the town can use eminent domain to take the properties.

-Owners have built at section lines (mile roads) fully expecting a ninety degree\right angle at their property corner. Roundabouts give the historical expectation no respect. Owners get hurt, and their only recourse is Just Compensation because roundabouts are considered a public use.

Construction at McGalliard Road

The Star Press, March 17, 2008

The state hopes to raise the bypass over McGalliard Road, building entrance and exit ramps, according to INDOT spokesman Harry Maginity.

In an unrelated development, INDOT also announced it would resume plans to build an overpass that would carry Centennial Avenue over the bypass. Centennial's intersection with the bypass was the site of a fatal accident in 2007, two fatal accidents in 2002 and several other accidents in recent years that left motorists with serious injuries.

Currently, the McGalliard-Bypass intersection is serviced by a four-way traffic signal.
INDOT spokesman Harry Maginity said the proposed interchange would be safer and better suited to the original purpose of having a bypass.

To complete such a project, the state would have to acquire additional right-of-way, displacing some property holders in the area, which includes several businesses.

Construction at McGalliard Road would begin in 2010 and cost around $22 million, according to the INDOT Web site.

-As States sell off infrastructure, from water works to toll roads, they now have funds to initiate other transportation improvements from other than road taxes.

Eminent Domain Sought For Ice House

The News Dispatch, January 19, 2008

MICHIGAN CITY - An obstacle in the city's plans to redevelop the North End could become moot soon after a lawsuit was filed to condemn two properties near Michigan Boulevard and Eighth Street.

Michigan City Redevelopment Commission Attorney Michael Bergerson said Friday he'd filed the suit last week in La Porte Superior Court 3.

The city wants condemned the Weber Sign property, 730 E. Eighth St., and property known as "the ice house," owned by Thomas and Florence Sobkowiak, 748 Michigan Blvd.

The city has tried for more than two years to purchase the properties - two of only three holdouts remaining in a string of properties needed for North End redevelopment.

Owners of Blocksom, a factory complex near Michigan Boulevard and Fifth Street, are in discussions with the city for an anticipated sale and relocation of the facility.

The Webers and Sobkowiaks, however, have refused to budge, as has the city. Bergerson's request for an eminent domain judgment, he said, is the last step in an arduous process.

The city is offering the Webers and Sobkowiaks $1 each for their properties. Bergerson said the offer is fair - in the eyes of the court - because the land under both properties is "highly contaminated."

"We can't pay for property that's also contaminated beyond its value," he said. "They can't sell it and they're living in a dream world if they think the taxpayers of Michigan City want to pay for a property and pay to clean it up."

Glenn Kuchel, the Hammond attorney representing Bill and Kathy Weber, the owners of Weber Sign, said Friday the offer of $1 isn't fair.

If condemnation is granted, an appraiser will settle on values for both properties and offer that amount to the owners. If the owners object to the price, the city will issue a deed and take the properties, but will still debate price with the owners.

-In reading the article and the claim of a “$1” value, one has to wonder whether the community fully understands the choices an owner has even with contaminated property. This is a court filing which was “rushed to judgment,” by the writer of the article, premised on comments of the community. Without question, the writer was not fairly notified of the owners' rights in this particular factual setting.

Water Company's Rights

An Aqua Indiana customer on Windsor Road, Steger bought a water softener and replaced a dishwasher and garbage disposal because of the harshness of his water, he said.

But the somewhat graphic description of his water’s color is the most telling.

“I would take showers and the water would turn the gray hairs on my chest red,” he said.

But people like Steger – who complain about the company’s water service – are becoming rarer, at least according to the number of complaints received by the private utility. In fact, complaints about water color, poor pressure and other service problems dropped by a third on average from 2004 through 2006, when compared with the previous three years.

One of the city’s main reasons to take over the private northern system was to provide better water.

The city started an eminent domain action in 2002 to acquire the northern system. Last summer, the Indiana Supreme Court ruled in a 3-2 vote that the city can take the utility through eminent domain. Aqua Indiana is challenging the city’s $16.9 million appraisal of its assets, but has not yet publicly offered what it believes is a fair price.

Steger, 68, bought his home on Windsor with the promise his home was on City Utilities. Upon discovering the water was from Aqua Indiana, he installed a water softener for $500, which he said was necessary to make the water potable. Even with the softener, he said the water still comes out red or black at times. He said he pays about $18 a month for salt for the softener.

Even if the cost of acquiring the private utility comes in more expensive for the city, Steger said he would be willing to pay a premium to relieve himself of the hassles.

“I don’t mind paying for a quality product,” he said.

-This article serves as a harsh repudiation of the water company’s fair rights. Given that the case is to be tried by a jury of peers in the community, when the community offers phone numbers to call for “complaints,” one wonders how fairly the water company can be treated in this situation.

Clarksville May Condemn Peddler's Property

News and Tribune, October 4, 2007

The town of Clarksville says it may condemn a portion of the Peddler's Mall property in order to pursue a revitalization project on Easter Boulevard.

The condemnation being discussed would not affect the building but would lay claim to about 25 feet of road frontage.

The plan is to add new lanes, landscaping and sidewalks.  

- One of the things apparent in Clarksville is that the owners do not necessarily have to respond to the government.  Owners have no obligation other than to provide the condemning agency with materials which may serve as the basis for valuation.  

McLean, Livingston, DeWitt County Pipeline

Pantagraph, August 20, 2007

A Canadian crude oil transporter requested eminent domain to construct a pipeline through McLean, Livingston and DeWitt counties.

The eminent domain power is sought only in the interest of efficiency and to meet public need for crude petroleum.

Enbridge wants to construct a 170 mile pipeline east of Bloomington from Pontiac to Patoka. Construction is slated to start in 2008.

-The pipeline going through Indiana is also going through Illinois. Property owners are challenging the taking at the Illinois Commerce Commission. It is unlikely that the local Commerce Commission would rule against a pipeline, especially in the present day context that the pipelines are federal activities and the challenge would therefore be made at the federal level. The pipeline company will aggressively take on the farmers, so the farmers and other owners challenging the estimate of just compensation is incorrect at a future date.

LaPorte County Airport

Post-Tribune, August 5, 2007

Northwest Indiana is a prime piece of the national shipping puzzle.

A 3,000 acre parcel in LaPorte County is the potential site future site for a huge transportation hub.  The site is close to nearly all major interstates in Northwest Indiana.  

If the property owners of the tract do not respond soon to offers, eminent domain maybe used to kick them off their property.  Governments have the power to force private property owners to sell their land for the public use or for private use where there's a substantial public benefit.

-The location is a prime example of the highest and best use assembled by the government.  There is a reasonable argument that maintains that the government is the only source to assemble, but there is also an argument that part of the special value of the location should be for the benefit of the owners.

Landing Fees

NWI.com, July 13, 2007

The Gary/Chicago International Airport approved making a $1.6 million court deposit to secure a key stretch of land west of the main runway.  

The deposit is part of condemnation proceedings the airport initiated last year.

The authority board also approved paying the moving costs of a business located there and clean up costs. 

-Gary/Chicago International Airport will be a key foundation of redevelopment in the area. However, this is not to be a building block for one to the detriment of only the owners. Airport acquisitions are always specific and far more complicated than what first meets the eye. 

Bloomington Pipeline

Pantagraph, July 10, 2007

A Canadian company that wants to contruct a crude-oil pipeline through Central Illinois plans to file for eminet domain power near the end of the month.

Eminent domain remains a last option, however, Endbridge Inc. might begin negotiating with landowners around the same time it files for certificate of good standing...

The 170-mile pipeline would run east of Bloomington Normal from Pontiac to Patoka, affects about 95 landowners in Mclean county, 68 in Livingston County and 65 in DeWitt Count.

-A Canadian pipeline will work its way through Illinois despite the opposition of the local farmers. The issue then becomes one of how owners can be treated fairly. To simply “start negotiations” does not deal with the compensation or the valuation of pipeline takes.

At least there seems to be recognition that the tile fields will require repair.

Water Fight

News Essential, June 2007

Fort Wayne is now free to take over the Aqua Indiana water utility's northern operation.   It will probably spend more than $1 million plus already invested in legal fees for a bad use of eminent domain - taking over a business that is working perfectly well in private hands.  

The Indiana Supreme Court has affirmed the original court's decision in favor of the city, relying on the "indeterminate permit" language giving authority to "a municipality like the city to purchase its property."  And the utility does not have the authority to designate a particular condemnation procedure.

-This article attacks the basic judicial premise that individuals and corporate entities have a right to make a profit without fear of acquisition by a condemnor. However, State Supreme Courts have consistently held that when a legislature grants a local agency the authority to purchase a franchise, the local government will generally be allowed to acquire. A similar example occurred in the Township of Grosse Ile v. Grosse Ile Bridge Company action of Township of Grosse Ile v. Grosse Ile Bridge Company, Supreme Court No. 131185, Court of Appeals No. 255759.

It is incomprehensible that such deference is given to legislative bodies at the local level where a statutes allow challenges for lack of necessity. Yet, courts have consistently construed the challenge to necessity being one of whether the end use is or is not a public purpose.