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Eminent Domain and Real Estate Valuation Blog

Condemnation and Real Estate Litigation

NC Senate Seeks To Place Eminent Domain Constitutional Amendment On Ballot

Posted in Eminent Domain

The NC Senate Republicans gave initial approval to putting three constitutional amendments on the November ballot. One of those amendments seeks to restrict eminent domain powers.  An eminent domain amendment has been approved by the NC House five times since the 2005 U.S. Supreme Court Kelo decision.  The proposed amendment provides that private property cannot be taken for eminent domain except for a public use and that just compensation shall be paid and determined by a jury at the request of any party.

NC Court Finds NCDOT Statute Constitutes Taking

Posted in Eminent Domain

North Carolina’s Supreme Court held that a state law carving out potential future highway projects represented an unconstitutional taking of residents’ property without just compensation. In Kirby et al v. North Carolina Department of Transportation, 56PA14-2, a group of Winston-Salem landowners challenged the state’s Roadway Corridor Official Map Act, better known as the Map Act, saying it wrongfully allows the state to invoke eminent domain to condemn their land without proper payment for future corridor highway projects that are part of the North Carolina Department of Transportation’s long-range transportation plan.  The justices affirmed a state appeals court ruling that the state had to pay the property owners, concluding that the Map Act implements an indefinite restraint on fundamental property rights through eminent domain. That 1987 law gave the state agency the power to chart out official roadway maps, creating protected corridors for future highways and indefinitely barring property owners with parcels within those corridors from getting building permits to improve, develop or subdivide their property.

“The Map Act’s indefinite restraint on fundamental property rights is squarely outside the scope of the police power,” the justices said. “No environmental, development or relocation concerns arise absent the highway project and the accompanying condemnation itself. Justifying the exercise of governmental power in this way would allow the state to hinder property rights indefinitely for a project that may never be built.”

The justices remanded the dispute to the lower court with instructions to crunch the numbers on the value of the loss of the landowners’ fundamental rights, specifically by calculating the value of the land before the corridor map was recorded by NCDOT and the value of the land afterward, according to the opinion. Other factors would also have to be taken into account, including the restriction on each plaintiff’s fundamental rights, as well as any effect of the reduced ad valorem taxes, the court said.

PA Court Precludes Appraisal By Non-Testifying Expert

Posted in Uncategorized

A Pennsylvania state appellate court recently held that a taxing authority could not present an appraisal prepared by a non-testifying expert for the taxpayer. In Millcreek County School District v. Erie County Board of Assessment Appeals v. Wegmans Food Markets Inc., 39 C.D. 2015, the Court of Common Pleas of Erie County allowed the Millcreek Township School District to present certified appraiser Barry Polayes’ appraisal submitted by the taxpayer during a 1998 valuation.  The Commonwealth Court of Pennsylvania reversed the decision.  It ruled that Polayes was not an agent of the taxpayer and his earlier opinions should not have been used against the taxpayer in court.  They held that the appraiser was not a representative of the taxpayer and, therefore, the appraisal violated the hearsay rule.

Appraisal Institute Lobbies Congress Regarding Appraisal Process

Posted in Appraisers

The Appraisal Institute has reported that it will lobby Congress for the modernization of the appraisal regulatory process. The issues the Appraisal Institute want to see addressed include the relationship of Federal and state regulations, the ability of appraisers to work in multiple states, more flexibility in the appraisal process and better processes for sharing information.

SCOTUS Won’t Hear Fla. Apartment’s Takings Suit

Posted in Eminent Domain

The U.S. Supreme Court declined to hear a Florida apartment complex’s class action challenge to a state law allowing the government to keep most of the interest on funds the county court held during eminent domain proceedings. Jupiter, Florida, apartment complex Mallards Cove LLP asked SCOTUS to hear its inverse condemnation suit against the Florida Department of Transportation and the clerk of the Pasco County Circuit Court. Mallards Cove argued that a state statute allowing the government to collect the overwhelming majority of interest on quick-take deposits violates the Fifth Amendment’s ban on the government’s taking of property without providing fair compensation.

The Second District Court of Appeal’s March 2015 held that the deposited funds were not Mallards Cove’s property. The county clerk invested the deposit and later paid the FDOT 90 percent of the interest earned, the petition said.  The case is Mallards Cove LLP v. State of Florida, Department of Transportation et al.

Md. High Court Allows Post-Cutoff Tax Assessment Evidence

Posted in Assessments

Maryland’s highest court recently held that the tax court can value a property by relying on sale prices of comparable properties bought soon after a cutoff date for the assessment. In Ann Lane v. Supervisor of Assessments of Montgomery County, the Maryland Court of Appeals concluded that the Maryland Tax Court had properly taken into account sales of comparable properties that occurred a few months after the so-called date of finality when determining the value of a condominium. The date of finality is a Maryland assessment tool used to determine the value of a property once every three years and is defined as “January 1, immediately before the 1st taxable year to which the assessment based on the new value is applicable.”

New Hampshire Sen. Passes Bill Aiding Pipeline Condemnees

Posted in Eminent Domain

The New Hampshire Senate passed a bill intended to give eminent domain protections to homeowners in the path of a gas pipeline project. Energy company Kinder Morgan recently suspended its plan to build a natural gas pipeline through southern New Hampshire, but a bill aimed at the project still passed 23-1. If enacted, it would allow homeowners to request a gas pipeline developer take their entire property, even if the company is just interested in a small piece. The measure would apply only if the house that are within 250 feet of the project.

A version of the bill has already cleared the NH House. But the House tabled a Senate-backed proposal to invest more money in energy efficiency efforts. In an effort to keep the energy efficiency legislation alive, the Senate tied the two bills together Thursday and sent the package back to the House.

Iowa House Passes Bill Restricting Eminent Domain Rules For Transmission Developers

Posted in Eminent Domain

The Iowa House of Representatives recently passed a bill restricting the ability of independent transmission developer to exercise their power of eminent domain. The House passed House Bill 2448 by a 63-33 vote. If passed by the Iowa Senate, developers would have to obtain agreements from 75% of property owners along an electric line’s route within three years or the Iowa Utilities Board would not be able to grant the authority necessary to compel cooperation from reticent landowners along a project’s route. It appears the bill is aimed to block completion of the Rock Island Clean Line, a $2 billion, 500 mile high-voltage direct current transmission project planned by Clean Line Energy Partners.

Montana Supreme Court Hears Water Utility Condemnation Case

Posted in Eminent Domain

Montana’s Supreme Court heard arguments last week in a case that will determine the future of Missoula’s water utility. The City of Missoula is trying to take ownership of that city’s water utility – Mountain Water Company. Mountain Water says Missoula has no right to take it and turn it into a public asset.

Last year a district court judge ruled in favor of the city, saying public ownership is a “more public use” than the utility staying in private hands. The City has pointed out that 128 incorporated Montana communities successfully own and operate their own water systems.

City Attorney Harry Schneider said there’s wide public support for public acquisition of Mountain Water. A ruling is not expected for some time.

SCOTUS Decides Not To Hear Eminent Domain Lost Profits Case

Posted in Eminent Domain, Valuation

The U.S. Supreme Court declined to hear a West Virginia eminent domain case. In Beacon Resources Inc. v. W. Virginia DOT, the trial court denied the West Virginia Department of Transportation’s request for a jury instruction that compensation could not include any lost profits suffered by the condemnee. The jury awarded Beacon $24 million and the DOT appealed. The West Virginia Supreme Court vacated the award and remanded the case for a new trial stating the lower court erred in not giving the requested jury instruction. The condemnee appealed and the U.S. Supreme Court declined to hear the appeal.