Just Compensation | Appraisal

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We’ve been offline for a few days, but wanted to pick up this decision in an important case we’ve been following about the valuation of protective dunes on the Jersey Shore, and general and special benefits.

In Borough of Harvey Cedars v. Karan, No. 070512 (July 8, 2013), the New Jersey Supreme Court held that a jury is entitled to determine whether the diminution in value caused by construction of barrier dunes on private property, which block the view of the owners and thus must be compensated, can be offset by claimed special benefits by the dunes to the property. The Borough asserted that the dunes resulted in special protection to the property, and enhanced its value. The intermediate appellate court held that the Borough’s evidence was not admissible, but the Supreme Court reversed.

As reported by the New York Times:

They are “waiting for the good old…

Continue Reading New Jersey: Dunes That Protect Everyone Get Paid For By A Few

Here’s one we’ve been meaning to post for a few days because it involves the nuts-and-bolts of eminent domain and inverse condemnation work — the calculation of just compensation and damages, and another victory for colleague Thor Hearne.

In a rails-to-trails taking case our of Florida, McCann Holdings, Ltd. v. United States, No. 07-4261 (June 27, 2013), the Court of Federal Claims awarded $3.1 milllion for the taking, which the government claimed was valued at only $825,000. 

We won’t walk through the entire case, but the court’s Opinion and Order is a very good roadmap for how to calculate severance damages in a partial taking of an easement.

Here’s more about the decision from the local paper.

McCann Holdings, Ltd. v. United States, No. 07-4261L (Fed. Cl. Jun 27, 2013)


Continue Reading CFC Provides Roadmap For Proving Damages And Just Compensation

Remember the case in which the Fifth Circuit held that a townhome association’s right to collect maintenance fees — recognized as property under state law — is not “compensable property” in an eminent domain action? In United States v. 0.073 Acres of Land, 705 F.3d 540 (5th Cir. 2013), the court held concluded that the “consequential loss rule” governed, and thus the property interest, although taken, was not compensable because the right to collect assessments was like a business loss and a frustrated contract.

Well, the townhome association has filed a cert petition, which asks the Supreme Court to review this Question Presented:

The Fifth Amendment to the United States Constitution provides that no private property shall be taken for public use without just compensation. U.S. Const. amend. V. In the present case, the United States condemned 14 of 58 properties comprising Mariner’s Cove Townhomes Association, Inc. All…

Continue Reading New Cert Petition: Is The Right To Collect Assessments A Compensable Property Interest?

Generally, mere offers to purchase are not admissible in eminent domain trials to show the valuation of the property, because they may be speculative, and not related to the question of value. Pennsylvania follows that general rule.

But it’s not an absolute rule, by far. In Lower Makefield Township v. Lands of Dalgewicz, No. 33 MAP 2011 (May 29, 2013), the Pennsylvania Supreme Court (Middle District) held that the Pennsylvania Eminent Domain Code broadened the scope of what is admissible in condemnation cases, “thus easing evidentiary restrictions for determining fair market value of a property.”

The township condemned a farm to build a public golf course on the property. The Board of View determined the value was $3.99 million, and when the parties were not able to agree on compensation, off to a jury trial they went. The owner testified to several offers to purchase the property, including a…

Continue Reading Pa: Offer To Buy Is Admissible In Compensation Trial

Here are links to the cases and other materials we spoke about at today’s teleconference with Professor Dan Mandelker and my OCA colleague Dwight Merriam:

  • Pipeline takings: Texas

…
Continue Reading Teleconference Links: Do You Dare Even Say “Eminent Domain” After Kelo?

According to this story (“Eminent Domain and a Horse Slaugherhouse at Wounded Knee?“) the Oglala Lakota Nation has decided to condemn land on the reservation at Wounded Knee, South Dakota to prevent its sale by its current (non-Indian) owner to third parties. The Wounded Knee site is significant for at least two reasons, the infamous massacre by the U.S. 7th Cavalry in the 1800’s, and the 1970’s takeover and months-long armed standoff by AIM.

The case raises unsettled issues. Can the Nation to condemn land owned by non-members? According to an unnamed Indian law expert quoted in the story, it would be “very hard for me to see the tribe pull this off.” What’s the value of the land if it can be taken by eminent domain? The owner claimes to have offers from potential purchasers in the millions, while others claim that the land is worth…

Continue Reading Eminent Domain In Indian Country: Oglala Sioux To Condemn Land At Wounded Knee?

Mark your calendars: on August 21, 2013, The Seminar Group is putting on the 2d Annual Eminent Domain and Condemnation Law Conference, in Honolulu (Hilton Waikiki Beach). Our Damon Key partner Mark M. Murakami is the Planning Chair, and the rest of the faculty is pretty good, too. 

We’ll be speaking at two of the sessions: “Honolulu Rail Litigation Update – EIS and Acquisitions,” and “The Evolving Process of Eminent Domain – Condemnation Update; Recent Court Decisions of Interest.”

These topics will also be covered:

  • Contractor Licensing Update
  • Planning Update – Development Near the Right of Way
  • Uniform Relocation Act Benefits
  • Rail Development and Property Valuation
  • Ethics in Eminent Domain: Obligations of Condemnor’s and Condemnee’s Counsel

More information here. Download the brochure here, or below.

Hope you can join us for another great program.

2d Annual Eminent Domain & Condemnation in Hawaii – Aug 21, 2013 – Honolulu Continue Reading Eminent Domain And Condemnation Law Conference (Honolulu, Aug. 21, 2013)

Much of the interest in eminent domain law since Kelo v. New London understandably has been on the Public Use Clause, but as condemnation lawyers know, a supermajority of the issues in these cases involve the other part of the Takings Clause, the question of just compensation.

The shorthand usually employed is that an owner whose property is taken is entitled to “fair market value,” but that is only part of the equation, since, as the Supreme Court has held, the Just Compensation Clause requires the “full and perfect equivalent” be provided when an owner of forced to give up property for the public good. See Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893).

A newly-published law review article addresses some of those issues, and is worth reading.  Brian Angelo Lee, Just Undercompensation: The Idiosyncratic Premium in Eminent Domain, 113 Colum. L. Rev. 593 (2013).

Continue Reading New Law Review Article On Just Compensation: Property Owners Getting Too Much

Here’s the amicus brief we filed today on behalf of our colleagues at Owners’ Counsel of America, urging the U.S. Supreme Court to grant cert in Marvin M. Brandt Revocable Trust v. United States, No. 12-1173 (cert. petition filed Mar. 22, 2013).

That petition asks the Court to review a Tenth Circuit decision that continued a lower court split about the meaning of the term railroad “right of way” as used in an 1875 federal statute and federal land patents subject to the 1875 Act. The issue is whether the federal government retained an “implied reversionary interest” when it issued these patents, or whether these grants were subject only to a railroad easement. The difference is that easements may be extinguished, while reversionary interests cannot. In this case, the railway abandoned its use, after which the federal government instituted a quiet title action in federal court asserting…

Continue Reading Amicus Brief In Rails-to-Trails Case: Switching Tracks To Undermine Takings Claims

Check out the opinion of the Indiana Supreme Court in Utility Center, Inc. v. City of Fort Wayne, No. 90S04-1208-PL-450 (Apr. 11, 2013. The issue is what the term “rehear … de novo” means in Indiana’s eminent domain code relating to condemnations by cities and towns, which provides for such review by trial courts on administrative appeal from a valuation assessment by a municipal works board. The city had the option to condemn the property either under that provision, or under the general eminent domain statute in which the landowner would be entitled to demand a jury.

The landowner objected to the board’s valuation, and demanded a jury trial. The trial court granted the city’s motion to strike the jury demand, concluding that “de novo” only required a limited review of the administrative record to insure that the valuation decision was made “in conformity with proper legal procedure.”

The…

Continue Reading Indiana S Ct: Meaning Of “De Novo” Rehearing In Eminent Domain Code Not Quite A “No Brainer”