I tried an eminent domain case last week in Bucks County, PA. The condemnor – the PA Turnpike Commission – alleged the property was worth $850,000. We alleged on behalf of the property owner that the property was worth $2.3 million. The jury deliberated for 3 hours and came back with a verdict of our exact amount – $2.3 million. I am thrilled for my clients who are great people.

The NC House is considering a bill that would result in an eminent domain amendment to the NC Constitution. House Bill 3 would place the amendment on the November 2018 ballot. The bill would not allow private property to be taken by eminent domain, or to be condemned, except for public use. The bill does not define public use. The US Constitution and many states have similar requirement.

Another bill adds communications and natural gas facilities and pipelines to those projects for which eminent domain is allowed for infrastructure projects. In cases where public use is permitted, HB 3 would require “just compensation” be paid and the amount determined by a jury if requested.

The NC House has submitted similar bills at least five previous times since a the 2005 U.S. Supreme Court Kelo decision. However, none were enacted by both houses.

Indiana is considering a bipartisan eminent domain bill. House Bill 1260 made it out of the House of Representatives with a 95-0 vote and is expected to go before a Senate committee Monday. The bill is in response to a proposed freight train line by Great Lakes Basin Transportation. The proposed bill, which would take effect July 1 if it makes it out of the Senate and Gov. Eric Holcomb signs it, states that any rail line must follow Indiana’s incorporation rules, and a rail line must show the end result would be good for a community. It also amends appraisal related requirements.

I tried a case in York County, PA in July involving a condemnation of the former York County Prison. My clients purchased the property in the ‘80s and were waiting for the right time to develop the property when it was taken by the City of York RDA.

The RDA claimed it was worth about $65,000. We presented evidence that the property was worth $1,250,000.

After less than ½ hour, the Jury returned a verdict of $1,250,000 – the full amount we alleged.

Unfortunately, the RDA chose to file post-trial motions to set aside the verdict. However, the Judge rejected each and every argument. He found that the verdict was well supported by “thorough and credible” evidence. Once again, it was very gratifying to see that the Judge and Jury agreed with our evidence and we hope the RDA will now pay what our clients rightfully deserve.

The N.C. Court of Appeals has issued a stay of a Forsyth County Superior Court Judge’s order directing the N.C. Department of Transportation to make payments to property owners in the path of the Winston-Salem Northern Beltway. Forsyth Superior Court Judge John O. Craig entered an order would have set in motion a procedure for the DOT to begin paying landowners who won an inverse condemnation ruling last June from the N.C. Supreme Court.

The State’s motion argued that Judge Craig’s order would require the state to “make unauthorized expenditures of public funds.”  That order requires N.C. to deposit funds equaling the estimated value of the lands allegedly taken which the property owners could withdraw at will.

A Connecticut Judge has ruled that the City of Hartford must pay an additional $3 million for property it acquired through eminent domain for development around Dunkin’ Donuts Park two years ago. The City acquired the three parcels in November 2014 for $1.98 million, based on the City’s appraisals. The property owner, Covered Bridge Ventures, appealed the price and a trial was held in February 2016.

“The most astounding shortcoming of both the City’s appraising experts is that neither of them took into account the ballpark …,” the Judge wrote in her ruling, adding that by July 2014 the city had already recognized the significant potential for the entire area in its requests for proposals from potential developers.

In her decision, Epstein also considered two appraisals done for Covered Bridge Ventures. She found an appraisal for $5.22 million to be “much too enthusiastic” for the court to rely upon. In her conclusion, Epstein found the second appraisal, for $4.81 million, to be the fair market value on Dec. 9, 2014, the date the city took the property by eminent domain.

A Texas state judge has ruled that a case must go to trial where the issue is whether a high-speed rail project developer has the authority to survey private lands and pursue eminent domain in order to draw the best route for a train that would run from Dallas to Houston. In Texas Central Railroad & Infrastructure Inc. v. Calvin V. House, Texas Central Railroad & Infrastructure Inc. filed a motion for summary judgment asking the court to deem the developer both a “railroad company” and an “interurban electric railway company” under Texas law which would enable it to survey private property for possible eminent domain. The suit seeks injunctive relief against Calvin House, a landowner who denied the company access to his 330-acre property.

In a one-page order filed Friday, Harris County District Judge Joseph J. Halbach Jr. denied the motion “in its entirety.”  The property owner argued that the fact that it would operate a railroad in the future wasn’t enough for it to claim it qualified as an “operating a railroad.”

The case will now proceed to trial.

A Texas appellate court recently affirmed the dismissal of the city of Austin’s lawsuit claiming commercial and vacant property are being undervalued during property tax appraisals.  Austin sued the Travis Central Appraisal District after an appraisal review board in Travis County denied the city’s formal challenge to what it said was the systematic undervaluation of two classes of vacant and commercial properties. The city alleged the state’s property tax appraisal system is unconstitutional and creates two different standards of assessment, resulting in arbitrary and unequal taxation.

In Austin v. Travis Central Appraisal District et al., case number 03-16-00038-CV, the Third Court of Appeals said, though the city does have statutory standing to challenge the level of appraisals of any category of property in the district, Austin had effectively foregone the administrative determination of its challenge, depriving the district court of jurisdiction. The court said the city could bring its concerns over tax policy to the attention of the Legislature, but that Austin “has no standing to pursue such a debate in this court.”  “The city’s constitutional challenge is a transparent attempt by a taxing unit to debate an issue of tax policy that is within the prerogative of the Legislature, rather than the judiciary,” the court said.

Austin filed the suit in August 2015, two months after the appraisal review board’s ruling, also naming as defendants several individual property owners it claimed held undervalued properties. It argued commercial and vacant properties weren’t being appraised at market value because property owners aren’t required to disclose real estate sales data, which the city said created an imbalance in information available for different properties.

The NJ Appellate Division recently decided a case involving an important and recurring issue – valuing a property for a use that requires land development approvals.  In New Jersey Transit Corp. v. Franco, Docket No. A-3802-12T4, the Appellate Division reversed the trial court due to “prejudicial error” in permitting the condemnees’ experts to value the property with an apartment complex as its highest and best use without establishing the reasonable probability of obtaining certain land development approvals.

The Appellate Division explained that the “crucial issue on appeal is whether the creation of a cul-de-sac . . . would have required and received approval by” the municipality. The condemnees’ experts assumed the municipality would not need to approve a use variance access or that the street could be dedicated to the municipality without need for a use variance.  New Jersey Transit contended that the experts’ opinions failed to analyze whether there was a reasonable probability of obtaining the variance or dedication.  Condemnee’s testified at trial over New Jersey Transit’s objections, which resulted in a jury award of $8.1 million.

The Appellate Division held that the condemnees were required to and failed to show a “reasonable probability” the municipality would either grant a use variance for the cul-de-sac or accept the dedication of the cul-de-sac as a public street. The Appellate Division expressed no opinion on whether the condemnees could, in fact, show such a reasonable probability and remanded the case for a new trial.

The Subcommittee on Housing and Insurance will hold a hearing entitled “Modernizing Appraisals: A Regulatory Review and the Future of the Industry” at 10:00 a.m. on Wednesday, November 16, 2016. This hearing will examine the appraisal industry since the creation of the Appraisal Subcommittee in 1989, review the Dodd-Frank Act’s impact on appraisers, consumers and stakeholders, and explore the future of appraisals, including alternative home valuation methods.

The link to view the hearing ishttp://financialservices.house.gov/

This will be a one-panel hearing with the following witnesses:

  • Mr. James R. Park, Executive Director, Appraisal Subcommittee
  • Mr. David S. Bunton, President, The Appraisal Foundation
  • Ms. Joan N. Trice, Chief Executive Officer and Founder, Clearbox
  • Mr. Bill Garber, Director of Government and External Relations, Appraisal Institute
  • Mr. Ed Brady, Chairman of the Board, National Association of Home Builders
  • Ms. Jennifer S. Wagner, Managing Attorney, Mountain State Justice, Inc.