Just Compensation | Appraisal

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Next week, we’ll be in New Orleans for the 2014 edition of the ALI-CLE Eminent Domain program, now in its 31st year. 

As usual, my Owners’ Counsel colleagues Leslie Fields and Joe Waldo (the programming co-chairs) have put together a fantastic 2.5 day of programming, taught by expert faculty.  At 11:00 a.m. on the first day of the program, I will be joining Professor James Ely to speak about “The Full and Perfect Equivalent for Just Compensation: The Historical Context and Practice.” 

Should be fun. If you are not joining us in-person, ALI-CLE is producing it as a live webcast, and will make the coursebook and video and audio available for later listening or viewing. 

More details here, or download the brochure here, or below. 

31st Annual Eminent Domain and Land Valuation Litigation, ALI-CLE Program (CV023) (Jan. 23-25, 2014) New Or…

Continue Reading 31st Annual ALI-CLE Eminent Domain And Land Valuation Litigation (New Orleans)

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According to this story (“Eminent domain panel values Flight 93 crash site at $1.5 million“), a three-person panel of commissioners appointed by the U.S. District Court has settled on the amount of compensation owed the landowner for the taking of the site in middle Pennsylvania where United 93 crashed on September 11, 2001.

The above photos were taken during our visit a few years ago. The lower photo shows the impact site (the large solitary flag), in the middle of the field.Continue Reading PA Flight 93 Site Just Compensation – $1.5 Million

Just in: the Federal Circuit today issued an opinion in Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Dec. 3, 2013), concluding that the government must pay just compensation for a taking, because it caused the Commission’s land to be flooded.

This is the case that was up before the U.S. Supreme Court last year (and in which we filed an amicus brief).  The unanimous Court held that government-induced flooding could be a taking (rejecting the Federal Circuit’s per se rule that temporary flooding was never a taking, only a tort). The Supreme Court remanded the case to the Federal Circuit, and in today’s opinion, that court affirmed the Court of Federal Claims’ conclusion that the flooding was a temporary taking.

We’ll have more after a chance to review the opinion in depth. 

Arkansas Game & Fish Comm’n v. United States, No. 2009-5121 (Fed. Cir. Continue Reading Fed Cir: On Remand From SCOTUS, Arkansas Game Flood Is A Taking

No one contests that when it condemned property in Norfolk, Virginia to expand the Federal courthouse, the federal government made unreasonable pretrial offers to the property owner. The owner’s appraisals valued the property at $36.1 and $30.7 million, but the government valuation resulted in a $6.175 pretrial offer. After the pretrial dance, the final offers were $9.4 million from the government, compared to $15.4 million by the property owner.

Fortunately, the property owner had the good sense to seek advice from our good friends at Waldo & Lyle, and the jury returned a verdict for $13.4 million. As one of the prevailing parties, the property owner sought attorneys fees under the Equal Access to Justice Act. The government objected on the basis that its final offer was substantially justified, even though its pretrial offer may not have been, and thus “the position of the United States” as used…

Continue Reading 4th Cir: Govt’s Reasonable Trial Position On Just Compensation Doesn’t Get It Off The Hook For Its Unreasonable Pretrial Position

Cornell lawprof Robert Hockett, the guy who by all accounts thought up of the idea of using eminent domain to take “blighted” (underwater, but mostly performing) mortgages, was interviewed on “Air Occupy” about the scheme yesterday. Here’s the podcast (we originally embedded the podcast below, but the darn thing was set to play automatically and it was just supremely irritating, so we deleted it and provided the link instead).

He goes into his thoughts on the motive of the opponents, among other things.

One thing we can’t figure: how an organization (although perhaps “decentralized, hacktivist collective” would be more acceptable to the group), can get within five feet of supporting a plan that was proposed, funded, and pushed by a bunch of the same “Wall Street” types who supposedly caused the problem. Anarchy breeds strange bedfellows?Continue Reading Cornell Lawprof Talks About His Plan To Take Underwater Mortgages

A very short opinion (2 pages) about why a trial court cannot consider issues regarding damages when the property owner failed to timely object to the report filed by the court-appointed appraisers. In Clark Cnty. Bd. of Aviation Comm’rs v. Dreyer, No. 10S01-1308-PL-529 (Sep. 12, 2013), the Indiana Supreme Court held it was not because the failure to object deprived the trial court of jurisdiction, but only because … well, you didn’t object. Forfeiture, waiver, whatever you want to call it, we suppose.

Not much there, folks, but we posted it anyway because how often do see a Supreme Court admit that the language in its own earlier opinion “is misleading?”

Clark Cnty Bd of Aviation Commissioners v. Dreyer, No. 10S01-1308-PL-529 (Ind. Sep. 12, 2013) Continue Reading Indiana S Ct: We Goofed

Dwight Merriam, familiar to our readers for the items of interest he frequently forwards, as a co-author of a recent brief in the New York rent control case, chapter author in the seminal eminent domain treatise Nichols on Eminent Domain, for being the editor of the ABA’s annual “Cutting Edge” land use books, the author of “The Complete Guide to Zoning” (which could be our favorite book on the subject), and the moderator of perhaps the most well-attended legal teleconferences on the planet (we understand this recent example had over 800 participants), has authored “Eminent Domain for Underwater Mortgages: A Cure Worse Than the Disease?,” a piece for The Abstract, the magazine of the American College of Mortgage Attorneys. 

It’s a good quick summary of the facts in the case of the plan for the city of Richmond, California to…

Continue Reading Merriam On Taking Underwater Mortgages: “Lindsay Lohan has a greater chance of staying out of trouble than the city of Richmond”

Missouri has a peculiar statute that we wish were more widespread. In 2006, state legislators adopted the “heritage value” statute requiring courts award an additional 50% over fair market value as just compensation when property owned by a family for more than 50 years is taken by eminent domain. Thus, when heritage property is taken, the owner is entitled to 150% of fair market value.

We like.

Congratulations to our Owners’ Counsel colleague Robert Denlow for defending the heritage value statue in the Missouri Supreme Court in St. Louis Cnty v River Bend Estates Homeowners’ Ass’n, No. SC92470 (Sep. 10, 2013), a decision which, among other things, resulted in the court upholding the statute against a constitutional challenge. The two main claims of illegality were that (1) the legislature went outside of its authority and defined just compensation to mean “too much,” and (2) the payment of the heritage…

Continue Reading The Descendants Win A Just Compensation Case In The Missouri Supreme Court – “Heritage Value” Statute Is Constitutional

Here’s the Opinion and Order of the Court of Federal Claims after the damages trial in Childers v. United States, No.  08-1981 (Aug. 5, 2013). It’s a very long opinion (145 pages, with a table of contents!), so we’re not going to summarize it, but if you want to know how a rails-to-trails case is tried, you can’t do better than this. Here’s the court’s overview:

This Fifth Amendment taking case comes before the Court following a trial on damages. Plaintiffs, landowners of 13 separate properties in Sarasota, Florida, seek just compensation stemming from the imposition of a recreational trail across their properties pursuant to the Rails to Trails Act. Specifically, Plaintiffs seek $8,703,800, representing $4,938,200 for the encumbrance of the trail and $3,765,600 in severance damages. Defendant asserts that compensation should be limited to the encumbrance, which it claims is properly valued at $2,220,900. The Court awards just…

Continue Reading Major CFC Decision On Rails-To-Trails Takings