The US Supreme Court has scheduled oral argument for November for an important eminent case. In Murr v. Wisconsin, the Court will consider wither governments may treat 2 distinct parcels that are contiguous and commonly owned as one parcel for purposes of regulatory taking analysis. Lower courts are split on this issue. There has been significant briefing by the parties and other interested parties.
Our team recently obtained a settlement worth over $5,250,000 in an eminent domain case. PennDOT, the condemnor, originally claimed the property was worth $1,811,000. Untimely, we were able to settle for a value of $4,500,000 plus interest in the amount of about $7,500,000. The property was an industrial property located in Philadelphia. We were able to settle the case before a board of view hearing thereby minimizing the attorney’s fees.
The Texas Comptroller’s office has launched a statewide online eminent domain database. This database will show entities who have exercise dthe power of eminent domain. “This is clearly an area in which transparency is absolutely essential,” Texas Comptroller Glenn Hegar said. “Knowing who can use eminent domain is the first step to ensuring that this potentially oppressive power is used wisely.”
The database contains 5,042 entities, including cities, counties, school districts, special purpose districts, pipeline and energy companies, water supply corporations, telecommunications companies and other public and private entities. The database includes each entity’s name and contact information and reported eminent domain information, including
- the date upon which the entity claims to have been authorized to exercise eminent domain authority;
- whether the entity filed a condemnation petition in calendar 2015;
- the projects or purposes for which the entity holds eminent domain authority; and
- the provisions of the law granting that authority.
A New Jersey tax court judge has granted a property owner’s request to reduce its tax assessment by about $1.5 million. The Court found that the taxes should have equaled a judgment entered two years earlier under the Freeze Act.
In Norwood Realty Associates v. Township of Ocean, Judge Mala Sundar approved the property owner’s request to use the Freeze Act to substantially lower the taxes on a property located in Monmouth, Ocean Township. The property owner argued that the tax assessment should be $1 million pursuant to a final judgment on the property’s 2014 assessment. That amount was based on a settlement between the parties.
Judge Sundar rejected the township’s argument that the Freeze Act did not apply because the property had undergone a tax revaluation which can be an exception to the Act. She explained that since “there was no revaluation for 2016 . . . , the application of the Freeze Act is not automatically barred.”
NJ State Senator Diane Allen has called for a hearing on two NJ eminent domain bills. In every legislative session since 2004, Senator Allen has introduced two bills aimed at eminent domain reform. One, S-2505, places a temporary moratorium on the use of eminent domain and creates the Eminent Domain Study Commission to examine its use. The other is a constitutional amendment, SCR-98, that would limit the use of eminent domain to the acquisition of land for essential public purposes. However, neither bill has moved very far.
California’s Supreme Court recently issued an opinion that could have far reaching implications in that state. In City of Perris v. Richard C. Stamper, the Court ruled that a judge should decide whether the city would have required a property owner to give up the strip that was condemned as a zoning condition for developing his land before the jury decides the amount of just compensation.
In that case, a city condemned a 1.66-acre strip that divided a nine-acre undeveloped parcel into two irregularly shaped triangles. It was taken for an access road. The city argued that the property owner would have been required to dedicate land for the road to the city with no compensation if he’d tried to develop his property for light industrial use and that this requirement must be considered in vaulting the property.
The Court held, “Thus, in a condemnation action, when a government entity makes a claim . . . that it would have required a dedication of some or all of the property being condemned had the property been developed, courts determining just compensation should look to whether that dedication requirement was put in place before it was probable that the property would be included in a government project.” It further explained, “We hold that the project effect rule generally applies . . . to situations where it was probable at the time the dedication requirement was put in place that the property designated for public use was to be included in the project for which the property is being condemned,. The applicability of the project effect rule thus turns on a preliminary factual question to be decided by the court.”
A unanimous Illinois Supreme Court ruled that temporary flooding can cause a taking under the Illinois Constitution. In Hampton et al. v. the Metropolitan Water Reclamation District of Greater Chicago, homeowners alleged that Chicago’s water reclamation district violated Illinois’ takings clause by diverting stormwater onto their properties.
The lower state court wanted to know if the U.S. Supreme Court’s 2012 decision in Arkansas Game was at odds with prior Illinois law. The Illinois Supreme Court held that the prior law was not an absolute bar to temporary flooding takings suits and that courts would need to examine the facts of each case to determine if there was a taking.
The California Supreme Court held that state agencies may enter private properties for environmental and geological testing activities in some cases and that a jury may award damages if property is damaged during that testing. In Property Reserve Inc. et al. v. The Superior Court of San Joaquin County et al., case number S217738, the California Department of Water Resources invoked precondemnation powers under the state’s Eminent Domain Law relating to entry and testing to conduct environmental and geological studies and testing on more than 150 privately owned properties.
The California Supreme Court held that the testing was permitted. However, it also held that the property owners must have the opportunity for a jury trial if there are damages caused by the testing. The Court explained that the statutory procedure relating to precondemnation entry and testing “as presently written” does not afford a property owner the right to have a jury determine the amount of compensation within the precondemnation proceeding itself, and is constitutionally deficient.
“We conclude that the appropriate remedy for this constitutional flaw is to reform the precondemnation entry statutes so as to afford the property owner the option of obtaining a jury trial on damages at the proceeding,” the Court held.
It is very possible the legislature will now amend the statute to conform to the decision.
Last week I tried a case in York County, PA 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.
It was very gratifying to see that the Jury agreed with our vision for the case and award our client the amount they deserved.
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.