Eminent Domain | Condemnation

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In 118th Street Kenosha, LLC v. Wisconsin Dep’t of Transportation, No. 2012AP2784 (Dec. 10, 2014), a condemnation case, the Wisconsin Supreme Court considered these three issues:

(1) Is a temporary limited easement compensable under Wis. Stat. § 32.09(6g)?

(2) Assuming that a temporary limited easement is compensable under Wis. Stat. § 32.09(6g), did the circuit court appropriately exercise its discretion when it excluded evidence of the commercial property’s diminution in value from lost direct access and proximity to 118th Avenue because the temporary limited easement did not cause the loss?

(3) Is the LLC barred from recovering compensation for the commercial property’s loss of direct access and proximity to 118th Avenue because the relocation of 118th Avenue was a proper exercise of the DOT’s police power?

The crux of the issue before this court is whether damages under Wis. Stat. § 32.09(6g) for the temporary limited easement include the commercial property’s diminution in value caused by its loss of direct access…

Continue Reading Wisconsin: No Compensation For Loss Of Access Because Lost Access Not “Direct”

We didn’t quite finish posting all of the 2014 cases in our “for the blog” folder before the ball dropped, so we’re going to use the next couple of days to clear that queue.

Short postings, little analysis. But we’ll start 2015 off clean, we will.

First up, Buck’s Inc. v. City of Omaha, No. A-13-980 (Nov. 25, 2014), in which the Nebraska Court of Appeals held that a property owner had no inverse condemnation claim when road improvements eliminated a cut in the median, which prevented left turns into the property, because the property continued to enjoy access, just not in the same manner as before. 

Buck’s, Inc. v. City of Omaha, No. A-13-980 (Neb. App. Nov. 25, 2014)

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Continue Reading Nebraska App: Cutting Off One Access Point OK, Since Property Had Others

W’re not going to say much about the U.S. Court of Appeals for the Third Circuit’s decision in Columbia Gas Transmission, LLC v. 1.01 Acres, No. 13-4458 (3d Cir. Sep. 26, 2014), since the opinion is not too long, and the court’s conclusion is pretty “straightforward” as it noted:

The issue before us is straightforward: does Columbia Gas Transmission, LLC (“Columbia”), have the right of eminent domain to obtain easements over the land of objecting landowners, outside of the existing right of way, in order to replace deteriorating pipeline? The answer is equally straightforward and clear: yes. 

The regulatory authority given to natural gas companies such as Columbia actually anticipates replacement outside the existing right of way as we discuss below, and contains no adjacency requirement. The issue before us, then, whether Columbia has a right to replace the pipeline outside of the existing right of way, is actually…

Continue Reading 3d Cir: Pipeline Company Has “Right” Of Eminent Domain

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In State of Oregon v. Alderwoods (Oregon), Inc., No. A146317 (Sep. 17, 2014), an en banc equally-divided Oregon Court of Appeals affirmed the trial court’s determination that while the property owner possessed a property right in access to a public highway, that common law right was worth … pretty much nothing. 

Being an affirmance by an equally-divided court, there’s no majority opinion only a per curiam statement that’s exactly 6 words long (“Affirmed by an equally divided court.”). The real back-and-forth takes place in the concurring and dissenting opinions. 

Under Oregon common law, owners of properties abutting a state highway or county road have a right of access to the highway. And while the concurring judges in Alderwoods paid lip service to that right, they concluded that since that right may be regulated, there was no need for the state to pay just compensation when it took that …

Continue Reading Oregon App: Your “Common Law” Right To Access A Street Can Be Regulated Away, So You’re Owed Nothing If It’s Taken

Here’s the Washington Court of Appeals in City of Bellevue v. Pine Forest Properties, Inc., No. 71827-4-1 (Dec. 22, 2014):

Without question, condemnation of the property for construction of the East Link Project and the City’s road improvement project is a public use.

Slip op. at 15. There’s more detailed analysis in the court’s 25 page opinion, of course, but you really didn’t need to read more than the above, did you?

City of Bellevue v. Pine Forest Properties, Inc., No. 71827-4-1 (Wash. App. Dec. 22, 2014)

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Continue Reading Wash App: Temporary Taking For Rail Project Construction Staging A Public Use

A short one (as usual) from the New York Supreme Court, Appellate Division.

The court’s opinion in New Creek Bluebelt, Phase 4 v. City of New York, No. D42909 (Nov. 19, 2014) is so brief, you should just read it yourself. But here are the highlights:

  • The city condemned a 19,500 square-foot vacant parcel on Staten Island.
  • The property had been designated “wetlands” before the current owners acquired it.
  • Applying a Penn Central analysis, the trial court determined, and the appellate division affirmed, that it was reasonably probable the wetlands designation was a regulatory taking. 
  • The regulations resulted in an 82% diminution of value.
  • That’s usually not enough, standing alone, but the regulations also were an “effective prohibition on development on any part of the property.”

For more, see this post (“Appellate Division Affirms 75% Increment Applicable to Wetlands Taking“) from our Owners’ Counsel colleagues at Goldstein, …

Continue Reading NY: Reasonable Probability That Wetlands Designation Is A Regulatory Taking Under Penn Central

The Morris Family LLC v. South Dakota DOT, No. 26831 (Dec. 23, 2014), the latest from the South Dakota Supreme Court, is more focused on due process and civil procedure than on eminent domain, but since the background of the case involves a 1970 condemnation judgment, and a present claim for inverse condemnation claim, we’re all ears.

In 1970, SDDOT condemned part of what is now the Morris property for highway widening. The taking required moving the property’s driveway. The case was eventually settled and the court entered judgment. The judgment noted the state was granted “the right to control access to the right of way[.]” Slip op. at 10. 

Flash forward to the present, and “Morris Family asserts that it alleged two distinct causes of action—one claiming it was the victim of inverse condemnation and the other claiming that the State and the City of Watertown conspired to…

Continue Reading South Dakota: No Property Interest In Highway Access

Continuing with our year-end opinion dump, here’s the conclusion of the Texas Court of Appeals in City of Blue Mound v. Southwest Water Co., No. 02-13-00343-CV (Nov. 13, 2014):

Because as a matter of law the City is attempting to condemn Appellees’ water and wastewater system as a going concern, because as a matter of law Appellees are entitled to compensation for going-concern value as an element of this purported taking, because the general Texas condemnation statutes provide no mechanism for the awarding of going-concern value as held in Lone Star Gas Co., and because Lone Star Gas Co. remains binding precedent, we hold that Appellees conclusively established their entitlement to summary judgment on the ground that no statutory procedures exist authorizing the City’s condemnation suit in this case in district court.

Slip op. at 29.

City of Blue Mound v. Southwest Water Co.…

Continue Reading Tex App: City Can’t Condemn Wastewater Facilty

Most of you already know that under the Fifth Amendment’s Takings Clause, the fees expended by a property owner to recover just compensation are not recoverable as part of just compensation. That has never made much sense to us, for how does a condemnor fulfill its obligation to put the property owner in as good a position pecuniarily as if her property had not been taken, if the property owner must bear the cost of obtaining just compensation when the condemnor has not offered it? As a practical matter, this alone keeps many property owners from challenging a condemnor’s offer, which results in systematic undercompensation. Some states have deemed fee shifting a requirement of their state constitutions, while others have adopted statutes that allow fee-shifting (but those are matters of legislative grace). 

South Carolina is an example of the latter, and has a statute (scroll all the way to the bottom…

Continue Reading Eminent Domain, Contingency Fees, And Fee-Shifting Statutes: A “Constellation Of Factors”

Here’s the Virginia Department of Transportation’s answering brief in the case which we posted about last week, Ramsey v. Commissioner of Highways, now pending before the Virginia Supreme Court. 

Under Virginia’s condemnation procedures, as a prerequisite to a court exercising jurisdiction over an eminent domain action, a state condemning agency must as an initial step present to the property owner a statement of “the amount which [the condemnor] believes to be just compensation,” and must include an appraisal if an appraisal is required.

The trial court viewed the required “statement” as a “settlement offer,” and prohibited the property owner from both telling the jury about the statement, and cross-examining the state’s appraiser about it. Even though the state’s initial statement of just compensation was $246,292, and later, its new appraiser at trial testified that just compensation was only $92,127. The “Savage Appraisal” in the headline of this post …

Continue Reading A “Savage Appraisal” Indeed: DOT Argues That Its Statement Of Valuation Is A Confidential Settlement Offer