Come and Take It: The Eminent Domain Podcast

Jennifer Polovetsky of Duane Morris LLP’s New York office joins the show to discuss a grab bag of eminent domain issues.  The first segment focuses on the special benefits rule (and how it is distinct from the Miller, or Project Influence, Rule). Following that, Jennifer discusses trade fixture issues under New York law, and the differences between that and New Jersey (and Texas) rules. Links: J. Polovetsky Biography https://www.duanemorris.com/attorneys/jenniferpolovetsky.html#tab_Biography Article on Special Benefits: https://www.duanemorris.com/articles/not_so_special_benefit_eminent_domain_0625.html Article on Trade Fixtures: https://www.duanemorris.com/articles/trade_fixtures_new_york_eminent_domain_cases_what_qualifies_how_are_they_valued_1124.html

Jeff Meader of Eminent Domaine wine joins the podcast to give a landowner's perspective on experiencing eminent domain.  Jeff formerly owned a commercial building in Portland that was taken by a local metro transit authority to install a light rail line.  After that experience, Jeff took the proceeds and started a winery. In the episode, Jeff talks about the aspects of the ED process he takes issue with, the stresses of living through the process and coordinating with his tenants, and the importance of having counsel. At the end, Jeff talks about the winery, his style of winemaking, and his new life in Ribbon Ridge.    Links: Eminent Domaine Wine: https://eminentdomaine.com/   

In this episode, Kristin Renfro, a California condemnation attorney, joins the show to discuss inverse condemnation and its intersection with tort law. Kristen describes her experience litigating a case involving a catastrophic landslide. She details how inverse condemnation differs from tort law in that it requires no fault—only that a public project caused damage. Kristen explains the legal and scientific challenges of proving causation, including the need for expert geological and geotechnical testimony, and outlines the strategic decisions made during the trial. The conversation also touches on broader implications for property owners, utilities, and constitutional rights, especially in light of California’s progressive stance on public utility liability.  The episode concludes with Renfro's review of a recent trip to see Dead & Company at the Sphere in Las Vegas.   Links:   https://www.linkedin.com/in/kditlev/

In this episode, Tom Malapit and Eric Rochford--two Indiana condemnation lawyers--join Bobby to discuss a significant eminent domain case they tried last year in Indiana, which they believe is the largest jury verdict in an Indiana condemnation proceeding. They detail the challenges of the case, including the initial offer from the school corporation, taking over the case from another firm after a failed mediation, and a critical ruling on the admissibility of a prior family transaction involving the property. They also describe how they used the condemning authority's own witnesses during cross-examination to support their case and fighting for the property's highest and best use as commercial land despite its present designation as farm land. They also share insights into trial logistics, witness order, judge personality, and the valuable feedback received from the jury after the verdict. Links: Tom Malapit & Eric Rochford Webiste and Bios: https://www.eminentattorneys.com/about    

A few weeks ago, Bobby was invited to give a presentation to IRWA Chapter 36’s Spring Seminar on the history of Texas’s takings provision—specifically, the evolution of the term “adequate compensation” and what difference there is, if any, between that term and the U.S. Constitution’s use of “just compensation.”  This episode is a live recording of that presentation.   Links: https://irwachapter36.org/ 2025 Spring Seminar: https://irwachapter36.org/meetinginfo.php?id=131&ts=1738095773  

Christina Martin of the Pacific Legal Foundation joins to discuss litigating Hennepin County to the Supreme Court. Christina shares some stories about moot arguments ahead of oral arguments with Paul Clement, and compares the tax foreclosure sale in Hennepin to traditional bank foreclosures.  After discussing the case, Christina talks about her current work in follow up, including other property taxation issues and blight designations.    Links: Tyler v. Hennepin Co. Decision: https://www.supremecourt.gov/opinions/22pdf/22-166_8n59.pdf Christina Martin at Pacific Legal: https://pacificlegal.org/staff/christina-martin/ 

Joe Wilkinson of The Avenue Research Group joins the podcast to talk about technology in marketing for eminent domain cases.  In addition to traditional mail marketing, Bobby and Joe talk about broader marketing strategy campaigns, geofencing, AI, and why marketing research should both reach clients and also inform lawyers about projects.  At the end of the episode, Joe's interest in archeology becomes the basis for the cross examination. Links: Joe Wilkinson LinkedIn: https://www.linkedin.com/in/joseph-wilkinson-829406248/ https://avenueresearchgroup.com/   Contact: info@avenueresearchgroup.com P: (803) 509-5078

Emilio Longoria returns to the podcast to make the argument for why condemning authorities should pay landowners' attorneys fees in eminent domain cases.  Bobby plays Devil's Advocate and presents the arguments for the existing default rules.  After discussing the legal background arguments, they examine a sample of different state structures as examples of how differently states handle attorneys' fees.  Emilio offers some practice tips on structuring engagement letters for landowners' counsel.     Link: https://ackerman-ackerman.com/why-condemnors-should-pay-property-owners-attorney-fees-in-eminent-domain-cases-and-a-50-state-survey-on-the-issue/

Robert McNamara of the Institute for Justice joins to talk about his oral argument to the Supreme Court of the United States in Devillier v. Texas.  Robert discusses how he prepared for argument, what was at stake for his client, and what it means for eminent domain practitioners more generally.   In the cross exam, Robert shares how much coffee he drinks, and what minor superpower he'd like to have.   Links: Devillier Opinion: https://www.supremecourt.gov/opinions/23pdf/22-913_3204.pdf The Institute for Justice: https://ij.org/  Robert McNamara Profile: https://ij.org/staff/robert-mcnamara/  Devillier Oral Argument (with transcript and speaker highlights): https://youtu.be/OqpVdv_KkjE?si=2b0paALhLis_exLV 

In this episode, Alan Lichtenstein joins to discuss one avenue for landowners facing eminent domain to potentially minimize the tax impact of takings: 1033 Exchanges.  The episode begins with a general discussion of the requirements of 1031 (or, voluntary) exchanges, which listeners may be more familiar with.  Alan then explains some of the additional flexibility and options that 1033 exchanges offer for involuntary sales of property, like eminent domain.   At the end, Alan shares his thoughts on what a great Super Band would look like of his favorite musicians.   DISCLOSURE: The information herein has been prepared for educational purposes only and does not constitute an offer to purchase or sell investments. This material is not to be interpreted as tax or legal advice. Please speak with your own tax and legal advisors for advice/guidance regarding your particular situation.  DST 1031 properties are only available to accredited investors (typically defined as having a $1 million net worth excluding primary residence or $200,000 income individually/$300,000 jointly of the last two years and reasonably expects the same for the current year) and accredited entities. There are material risks associated with investing in private placements, DST properties and real estate securities including illiquidity, general market conditions, interest rate risks, financing risks, potentially adverse tax consequences, general economic risks, development risks, and potential loss of the entire investment principal.   Links: Alan Lichtenstein Profile: https://www.1031dst.com/alan-n-lichtenstein/  Alan Lichtenstein Email: alichtenstein@fortittudeinvestments.com  LinkedIn: https://www.linkedin.com/in/alan-n-lichtenstein-a77b926/  General Website: www.1031dst.com

In this episode, we interview a handful of guests--presenters, first timers, and repeat attendees from the 2025 ALI-CLE Eminent Domain and Land Valuation Conference. Note: Next Year's conference will be in Savannah, GA.    Links: ALI-CLE 2025 Conference Information: https://www.ali-cle.org/course/Eminent-Domain-and-Land-Valuation-Litigation-2025-CG204 Guest Chris Clough: https://www.barronadler.com/attorneys/christopher-clough/ Guest Angela Misch: https://www.gunster.com/people/angela-j-misch  Guest Clint Schumacher: https://www.dawsonsodd.com/attorneys/clint-schumacher/  Guest Elizabeth Sockwell: https://www.millermillercanby.com/attorney/elizabeth-r-sockwell/

In this episode, David Dominy and Cameron Boone (two appraisers with JLL) discuss property access issues, and how changes in either the quality or quantity of access can impact valuation in eminent domain proceedings.  Throughout, they distinguish control of access from circuity of travel issues, discuss a few of the key Texas legal principles and cases that define the scope of permitted access damages in condemnation cases, discuss the challenges of valuing a loss of access in the market, and provide examples from their experience.    Links: David Dominy at JLL: https://www.us.jll.com/en/people/david-dominy Cameron Boone at JLL: https://www.us.jll.com/en/people/cameron-boone  Episode 108: Mayor Steve Adler on the ED Podcast: https://podcasts.apple.com/us/podcast/special-joint-episode-with-the-infrastructure/id1437306753?i=1000599502892  State v. Schmidt (SCOTX, 1994): https://casetext.com/case/state-v-schmidt  Interstate Northborough v. State (SCOTX, 2001): https://casetext.com/case/interstate-northborough-v-state TXDOT Manual on Access Management: https://onlinemanuals.txdot.gov/TxDOTOnlineManuals/TxDOTManuals/acm/manual_notice.htm 

Anthony DellaPelle returns to the show, this time to discuss his recent tenure as the global chair for the Counselors of Real Estate.  Anthony explains what separates CRE from other real estate organizations, how he became involved, why he accepted the invitation to join its leadership, and the various activities in the organization that he has been involved with.  At the end, he highlights CRE's "Top 10" issues publication for the year and how a better understanding of broader real estate issues inform his legal practice.    Show Links: A. DellaPelle Law Firm Bio: https://www.mrod.law/team/anthony-f-della-pelle-cre/  A. DellaPelle on LinkedIn: https://www.linkedin.com/in/anthonydellapelle/  Counselors of Real Estate Main Page: https://cre.org/  CRE Application Process: https://cre.org/become-a-member/application-process/  CRE Real Estate Issues Publication (articles): https://cre.org/real-estate-issues/  CRE Top 10 Issues Facing Real Estate, 2024-25: https://cre.org/top-ten-issues/2024-25-top-ten-issues-affecting-real-estate/ 

Robert Thomas joins Bobby Debelak to discuss the most interesting legal developments from 2024, cases to watch next term, and previews the 2025 ALI-CLE conference to be held in San Diego at the end of January 2025.  At the end, a musically themed cross-examination includes Robert's dream set list of 70s bands. Links: https://pacificlegal.org/staff/robert-h-thomas/  https://www.ali-cle.org/course/Eminent-Domain-and-Land-Valuation-Litigation-2025-CG204   

Bobby interviews Nick Atwood, a trial lawyer with Ritchie Rock & Atwood in Shawnee, Oklahoma. Bobby and Nick discuss the procedural process for ED cases in Oklahoma, a protracted and unique six-year case that Nick recently tried against the Oklahoma Turnpike Authority, attorneys' fees issues under OK law, and how to work with clients. Throughout, Bobby asks Nick detailed discovery, procedure, and trial strategy questions, including how to prepare clients for taking the stand, how to handle a landowner client whose valuation is higher than the appraiser, and negotiating with opposing counsel even when those efforts fail.  The cross exam includes a personal view into Nick's first car and life in outer space.  Links: https://www.rrmalaw.com/team/nick-atwood

Richard and Leah Rothstein join the podcast to discuss the history of government action that aided in the creation and enforcement of segregation in American Neighborhoods--and, importantly, what all citizens can do in their communities to undo those injustices.  Mr. Richard Rothstein is a Distinguished Fellow of the Economic Policy Institute and a Senior Fellow (emeritus) at the Thurgood Marshall Institute of the NAACP Legal Defense Fund. He is the author of The Color of Law: A Forgotten History of How Our Government Segregated America, which recovers a forgotten history of how federal, state, and local policy explicitly segregated metropolitan areas nationwide, creating racially homogenous neighborhoods in patterns that violate the Constitution and require remediation.  The book has almost 18,000 reviews and a 4.8 rating on Amazon. He is a graduate of Harvard University and previously served as the former national education columnist for The New York Times. Ms. Leah Rothstein also works on public policy and community change, from the grassroots to the halls of government. She led the Alameda County and San Francisco probation departments’ research on reforming community corrections policy and practice to be focused on rehabilitation, not punishment. She has been a consultant to nonprofit housing developers, cities and counties, redevelopment agencies, and private firms on community development and affordable housing issues. Her policy work is informed by her years as a community organizer with PUEBLO and Californians for Justice, and as a labor organizer with the Union of Needletrades, Industrial, and Textile Employees (UNITE).  Their new book, Just Action, discusses local and community initiatives that all citizens can take to begin remedying the wrongs of the past.  Other Links: Just Action on Amazon: https://www.amazon.com/Just-Action-Challenge-Segregation-Enacted/dp/1324093242#customerReviews Just Action Book page with links and resources: https://www.justactionbook.org/ 

Judge Andrew Edison joins the podcast to discuss the longest land takings fight in American History--the Black Hills of South Dakota land dispute--which has now spanned more than a century.  An episode in legal history and includes lessons for lawyers in staying with the fight.   Links: https://www.txs.uscourts.gov/page/judge-andrew-m-edison-biography  Wiki write up: https://en.wikipedia.org/wiki/Seizure_of_the_Black_Hills 

Tom Forestier of Winstead PC joins the show to talk about a career of litigating high profile eminent domain cases, including his work in recent years with the Austin Airport taking case and the expansion of the Alamo Plaza. Bobby and Tom discuss the growing impact of media, from the advent of social media, impacts on grassroots efforts, and handling traditional media coverage of significant cases.   Links: https://www.winstead.com/People/Tom-Forestier  Episode 110: Chris Clough on the Austin Airport Taking https://www.eminentdomainpodcast.com/110-airport-taking/ 

Professor Ilya Somin of George Mason University and the Cato Institute discusses his work in drafting amicus papers in the Kelo case, working with Jane Jacobs, writing a book on Kelo (The Grasping Hand) a decade after the decision, and his current work on the costs of exclusionary zoning. Throughout, Bobby and Prof. Somin discuss the common ground that otherwise-differing philosophies find in property law.   Links: https://www.law.gmu.edu/faculty/directory/fulltime/somin_ilya  https://www.cato.org/people/ilya-somin https://www.theatlantic.com/ideas/archive/2024/06/constitutional-case-against-exclusionary-zoning/678659/  https://www.amazon.com/Grasping-Hand-London-Limits-Eminent/dp/022642216X/ref=tmm_pap_swatch_0?_encoding=UTF8&dib_tag=se&dib=eyJ2IjoiMSJ9.Av65EcHKeo7CqGfLDs_9-g.tENW9VkASB1jBty2_iVzTu5b5-S5ECKGI_CBiubYZHA&qid=1724864661&sr=1-1 

The Eminent Domain Podcast returns!  Clint Schumacher passes the torch (microphone) to a new host, Bobby Debelak. Clint introduces Bobby, they discuss their eminent domain experience, and plans for the show going forward.