Eminent Domain Blog : Pennsylvania Eminent Domain Lawyer & Attorney : Fox Rothschild Law Firm : Condemnation, Real Estate Valuation : Philadelphia, Bucks County, Pennsylvania

Two local members of the Flight 93 Federal Advisory Commission resigned because they vehemently disagree with the federal government’s plan to condemn private property in order to build a Flight 93 Memorial. The National Park Service announced that the federal government will condemn land from seven property owners for a Flight 93 memorial. As a result, Somerset County Commissioner Pamela Tokar-Ickes and Stonycreek Township Supervisor Gregory Walker resigned. Both were original members of the 15-person board. “The NPS and the Families of Flight 93 are sensitive to the community’s concerns regarding the use of eminent domain and will work hard to alleviate those concerns,” National Park Service officials wrote.

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The U.S. House of Representatives passed the Mortgage Reform and Anti-Predatory Lending Act of 2009. The bill, H.R. 1728, passed by a vote of 300 to 114 on May 7, 2009. The bill includes provisions that will impact appraisers including:

• Requirements for complete interior inspection appraisals for all subprime loans;
• Establishment of a federal appraisal independence standard with significant monetary penalties for violations;
• Modernizing provisions of Title XI of FIRREA to provide additional resources for state enforcement and greater accountability of federal and state appraisal regulators;
• Required separation and clear disclosure of fees paid to appraisers and fees paid for appraisal administration (i.e., fees paid to appraisal management companies);
• Limitations on the use of broker price opinions in loan origination; and
• Registration requirements, and a regulatory framework, for Appraisal Management Companies, with mechanisms to prohibit infiltration by appraisers sanctioned by state regulatory agencies.

The bill now will be considered by the SenateSenate Banking Committee. There is no timetable yet for its consideration.

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The National Park Service announced that the federal government will condemn land from seven property owners for a Flight 93 memorial. The Park Service stated that it wanted to purchase the property but “these negotiations have been unsuccessful.”  However, the property owners dispute that negotiations have even taken place. 

The seven property owners own about 500 acres still needed for the site. The plans are for a $58 million, 2,200-acre permanent memorial and national park at the crash site near Shanksville, Pittsburgh. The U.S. Justice Department will file a complaint in federal court exercising the power of eminent domain to acquire the property.

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The Pennsylvanian House of Representatives is considering a bill that would increase the amount of professional fees in eminent domain cases to $25,000. The Pennsylvania Eminent Domain Code was amended in 2006 and currently provides that a property owner “shall be reimbursed in an amount not to exceed $4,000 as a payment toward reasonable expenses actually incurred for appraisal, attorney and engineering fees.” Prior to the 2006 amendment, property owners were entitled to $500 for professional fees.

This issue continues to be controversial. In 2007, the United States Government Accountability Office issued a report regarding eminent domain. In that report, the GAO stated: “Multiple property rights groups further explained that owners often are unable to fight a condemnation action if they want to retain their homes or businesses or seek additional compensation because costs related to hiring an appraiser or attorney, as well as court costs, are too high.” Of course, increasing the reimbursable amount could also increase the cost of a project.

The likelihood that this bill – House Bill 796 – will ultimately become law is unclear at this time. It was introduced by State Representative RoseMarie Swanger and was referred to the House State Government Committee on March 9, 2009.
 

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Senate Majority leader Harry Reid is proposing to build power lines to carry renewable energy from remote places like solar and wind-power farms. The proposal would give the President authority to declare “renewable energy zones.”

States and the federal government would jointly develop “green” transmission plans for such areas. However, the proposal would allow the Federal government to use its power of eminent domain to take land and issue construction permits if a project were stalled or killed by state action. The proposal is expected to become part of a broader energy bill the Senate plans to take up in the coming weeks.
 

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Planning for the last phases of the Marshalls Creek Bypass Project – which PennDOT now calls the “Marshalls Creek Traffic Relief Project” – continues. The project was put on hold in April due to funding issues. PennDOT held a public meeting in October to discuss the options for this phase of the project which can be viewed at www.marshallscreekbypass.com/index.cfm

PennDOT posted the following update on January 2, 2009 on its website:

Project Milestones Reached
• PennDOT submitted the Final Traffic Reports to FHWA on November 24, 2008.
• PennDOT submitted the Final EIS (Environmental Impact Statement) Re-Evaluation on November 26, 2008.
• The Kick-Off Meeting for Final Design was held on December 2, 2008.
• A meeting for the Section 106 Programmatic Agreement (environmental/historical compliance agreement) amendment was held on December 4, 2008, with FHWA, SHPO (State Historic Preservation Office), and PennDOT's District and Central offices.
• The Phase III Archaeology report was delivered to FHWA and PHMC on December 30, 2008.
• A Right-of-Way review meeting was held at the PennDOT District Office on December 30, 2008.
• The Park-and-Ride project bids were reviewed and there is an apparent low bidder (Leeward Construction of Honesdale).
• Core borings have begun and will continue through February 1, 2009.

Upcoming Project Milestones
• The Environmental Review and Permitting will continue to be the challenge when trying to advance the Design/Build contract.
• Rettew Associates is scheduling a preliminary meeting with the permitting agencies for the “bypass” portion of the project.
• The Dewberry Team continues to advance the Final Design.
• The next Bi-Monthly Coordination Meeting is set for January 13, 2009.
• Park-and-Ride lot construction to begin in the spring and last one construction season.
 

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One of the new buzzwords these days is “infrastructure.” It is likely that Congress will enact an ambitious economic stimulus package soon after President-elect Obama is inaugurated. One important component will be funds that will be spent on “infrastructure” including roads and bridges.

State officials are drawing up plans for bridge and road improvements in anticipation of funds from a federal economic stimulus package. PennDOT has stated that they are confident that Congress will make money available for replacements and repair projects early next year.

PennDOT has a number of projects that have been stalled due to lack of funding. It is very possible that PennDOT will use an influx of federal funds for these projects. It is unclear at this point the extent to which the projects will involve acquiring property through the power of eminent domain.

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The United States Tax Court recently found that an appraisal does not necessarily need to comply with the Uniform Standards of Professional Appraisal Practice – commonly known as USPAP – to be admissible or reliable. In Whitehouse Hotel Limited Partnership v. Commissioner of Internal Revenue – filed October 30, 2008 – the IRS’ appraiser submitted an appraisal that did not fully comply with USPAP. The taxpayer argued that the appraiser’s report was per se unreliable since it is not in conformance with USPAP. It further argued that it should not be received into evidence.

The Tax Court rejected that argument and admitted the appraisal into evidence. It offered the following explanation for its holding:

“USPAP is widely-recognized and accepted as containing standards applicable to the appraisal profession. Adherence to those standards is evidence that the appraiser is applying methods that are generally accepted within the appraisal profession. Therefore, at a minimum, compliance with USPAP is an indication that the appraiser's valuation report is reliable. However, a noncompliant valuation report is not per se unreliable. Full compliance with professional standards is not the sole measure of an expert's reliability. Petitioner essentially asks the Court to supplant its responsibility to assess an expert’s reliability with a rigid standard of reliability. Sole reliance on USPAP is a far more inflexible definition of reliability than the definition (depending on "reliable principles and methods") incorporated into Rule 702 of the Federal Rules of Evidence. Therefore, we decline to adopt USPAP as the sole standard for reliability of an expert appraiser.”

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Montgomery County Pennsylvania’s planning commission is considering a transportation program that could cost $150 million. The Commission recently met to discuss a county program that could involve local governments and the private sector paying for an improvement program for local roadways and bridges. The Commissioners stated that there have been repeated complaints from residents and businesses about traffic congestion.

According to reports, Commissioners appear to be committed to some type of program and are considering a few options. The most popular option includes a 10-year program that would involve over 70 projects. This option would require voter approval to borrow $150 million. One project example cited was widening Route 309 in Montgomery Township to six lanes between Upper State and North Wales roads along with adding turn lanes and reconfiguring accesses to businesses.

The planning board members said they hope to finalize a recommendation at the November 12, 2008 meeting and submit a proposal to Commissioners by the end of the month.
 

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