Category: Publications

Working With Experts

The retention of an expert requires certain basic tenets, and if any are broken it is likely that the viability of a condemnation just compensation claim will be destroyed. Condemnation counsel need to follow a specific approach in dealing with the process. The key to obtaining a decent appraiser is finding one who can fully explain and justify his valuation process to the final fact finder.

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The Interplay between the Fourteenth Amendment’s Due Process Clause and the Fifth Amendment’s Taking Clause: Is the Supreme Court’s Test for “Public Use” Merely Rational Basis?

What part of the Constitution limits the power of eminent domain? The obvious answer is the Takings Clause of the Fifth Amendment, which states “nor shall private property be taken for public use, without just compensation. But what about the Due Process Clause of the Fourteenth Amendment. It was not until 1978, in Penn Central Transp. Co. v. New York that the Supreme Court matter-of-factly held that the Takings Clause of the Fifth Amendment was “of course” applicable to the states. To justify incorporation, Penn Central cited only one 19th century case, which itself did not mention the Fifth Amendment. Before Penn Central, the court relied on the Due Process Clause to restrict the scope of state taking power.  

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Protect Your Domain From Eminent Danger

As private companies and government agencies engage in a continued push to make needed infrastructure upgrades and improvements, eminent domain and condemnation remain hot-button issues. No matter how well intended, these actions often lead to unavoidable conflicts of interest between the condemning agency and private property owners.

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The Relevance and Admissibility of Rezoning and Comparable Sales Occurring After the Date of Taking, When Determining the Value of Condemned Property

The right to just compensation, when the government acquires property through eminent domain, is enshrined in the Bill of Rights and all state constitutions. However, courts struggle to define how what compensation is “just”. The valuation question involves a careful appraisal of the property—its location, structures, zoning, state and municipal regulations, and so forth. Further complicating this analysis is the fact that property values can change sporadically in relatively brief periods. Plunges nationwide in real estate values in cities like Detroit and Las Vegas attest to this fact. Thus, the question of when a taking occurs is paramount. The “general rule is that value is fixed at the time property is actually appropriated.” This seems like a simple determination, and under “slow take” procedures, where appropriation and compensation occur at the same time, it is. However, many states now use a “quick take” procedure, in which the government takes title to property before initiating condemnation proceedings. The gap between acquisition of property and when the owner actually receives compensation can be months, even years. In this interim period, many events can affect value of the property, especially changes in the real estate market and rezoning of the property.

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Highest And Best Use And Partial Takings Issues

This is the second part of a two-part series dealing with the valuation of surface parking lots acquired through a governmental agency’s power of eminent domain. Parking lots acquired through eminent domain involve other than a voluntary negotiation and valuation process. All of us expect to be treated fairly, especially if we are not voluntarily selling our property.

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Principles Of Compensation

This is the first of a two part series dealing with parking lots and just compensation process for parking lots acquired through a governmental agency’s use of eminent domain. Principles of “just compensation” and basic valuation are discussed in the first of these articles. The second article will include discussions of the concepts of “highest and best use” and the valuation determination for “partial takings”.

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