Two D.C. Council committees advanced legislation allowing for the use of eminent domain in the construction of a $300 million professional soccer stadium in Washington, D.C.  The bill will now go before the full council for a vote on Tuesday.  While the legislation allows for eminent domain to be used to acquire the land, Mayor-elect Muriel Bowser, chair of the economic development committee, said she remains hopeful they will be able to come to a new agreement with the city for the land.

PA Commonwealth Court recently found that a property owner was not entitled to a private road across a neighboring property since it appeared that the property owner was entitled to an easement by necessity across another property.

In In Re: Laying Out and Opening of: Private Road in Hazle Township, owners of a landlocked property petitioned the Court pursuant to the Private Road Act for a road across a neighbor’s property to connect to PA Route 309. The Board of View determined that the property owners were not entitled to a private road because they could assert an easement by necessity over another property. The Commonwealth Court held that it was proper for the Board of View to consider whether the property owners could assert an easement by necessity across another property other than the property which was the subject of the Petition to Permit a Private Road.

The Pennsylvania Commonwealth Court found “When reviewing a request to open a private road under the Act, we are cognizant that the Act is in the nature of eminent domain and, therefore, must be strictly construed.” The Court further found that while the Board of View cannot “quiet title and make a determination binding on the affected landowners as to whether an easement by necessity exists, it is not error for a Board of Viewers to consider whether it appears that an easement by necessity exists. The potential existence of such an easement is relevant to the question of whether a private road is strictly necessary.”
 

PennDOT has shown signs that it is pursuing property acquisitions for Route 422 projects in Berks and Montgomery Counties (PA). PennDOT published a notice on September 3, 2011 in The Pottstown Mercury newspaper that it intends to acquire property in Lower Pottsgrove (PA) Township for that portion of its 422 reconstruction project. Property owners are also receiving notices of potential acquisition for various other 422 projects.

After over a decade of planning, a $5.2 billion expansion of Philadelphia International Airport was approved by the Federal Aviation Administration. The project will require a significant amount of land acquisition in Philadelphia and Delaware County.

Those properties in Philadelphia could be acquired through the City’s power of eminent domain. However, airport chief executive officer Mark Gale stated that “We do not have eminent-domain power in Delaware County. We will try to voluntarily have a transaction with a willing seller.” His statement presumably is based upon a 2006 amendment to the Pennsylvania Eminent Domain Code which generally prohibits "extraterritorial" condemnations – i.e., condemnations beyond a municipality’s borders.

If your property is being considered for acquisition – either through a condemnation proceeding or amicably – you should know your rights and potential for compensation. It appears that this project will be a reality and should not be ignored.
 

The Pennsylvania Commonwealth Court recently ruled that PennDOT met its burden to condemn agricultural property for a project in Lebanon County. In Dept. of Transp. v. Agricultural Lands Condemnation Approval Board, PennDOT sought to condemn productive agricultural lands for a transportation use. Pursuant to the Farmland Protection Policy Act, the Agricultural Lands Condemnation Approval Board considered the PennDOT project. It found that PennDOT did not prove that there was no reasonable and prudent alternative to the alternative selected by PennDOT and denied PennDOT’s request to use its condemnation power to acquire the lands. On appeal, the Commonwealth Court reversed holding that the Board acted capriciously and ignored overwhelming evidence that there was no reasonable and prudent alternative to the condemnation of the lands.

I just completed a 2 week trial in Burlington County, New Jersey in which the jury awarded my client – the property owner – $1,607,000. The case involved a “partial taking” by the New Jersey Dept. of Transportation of a portion of the frontage of a shopping center in Marlton, NJ. The NJDOT’s last offer was $194,000.

The biggest issue in the case was the extent to which the property owner was permitted to seek damages caused by a closed driveway. New Jersey, like many states, limits a property owner’s ability to obtain damages for a change in access. Generally, New Jersey property owners are not permitted to seek such damages as long as the remaining access is reasonable. However, there are exceptions including if the change in access caused “on site impact” such as vehicular maneuverability issues.

This is an issue that is likely to receive a great deal of attention given the spike in roadway projects.
 

Pennsylvania will receive $68.8 million and New Jersey will get $46.8 million in federal stimulus funds for housing redevelopment projects. These projects will include acquiring blighted properties. It is virtually certain that many will be acquired through the power of eminent domain.

Approximately $43.9 million will go to the City of Philadelphia. However, the City was seeking $58 million. The funding for Pennsylvania also includes $5 million for the City of Reading. New Jersey’s funding includes $11.9 million for the Camden Development Authority, $14.1 million for the Camden Housing Authority and $20.8 million for the City of Newark.

The funds are included in $2 billion in grants awarded nationally by the Department of Housing and Urban Development under its Neighborhood Stabilization Program.
Los Angeles received the most of any city – $100 million. Chicago received $98 million and Phoenix $60 million.

 

New York’s highest court ruled on Tuesday that private property could be condemned for the “Atlantic Yards” project. That project involves, among other things, an NBA arena and 16 office and residential towers in Brooklyn. The properties were purportedly condemned to eliminate “blight.”

In Goldstein et al. v. N.Y. State Urban Development Corporation, the New York Court of Appeals upheld the condemnations in a 6 to 1 decision. The project was challenged, in part, on the basis that that since the condemned properties would ultimately be owned by private entities, they were not being condemned for a “public use.” The New York Constitution – as well as the U.S. and most state constitutions – provide that properties can only be condemned for a “public use.”

The Court rejected that claim ruling that projects eliminating blight satisfy the public use requirement and that the fact that the properties would ultimately be owned by private entities did not make the condemnations unconstitutional. This is consistent with the eminent domain law of most states and has been federal law since the 1950s.

The condemnations were also challenged on the basis that the properties were not truly blighted. The Court also rejected this argument and expressed the common belief among the judiciary that, other than in the most egregious cases, courts should not second guess the legislature’s decisions regarding the need for projects.
 

A copy of the opinion can be found at www.nycourts.gov/ctapps/decisions/2009/nov09/178opn09.pdf

The Battle over the taking of property for, among other things, an NBA arena and 16 office and residential towers in Brooklyn has moved to New York’s highest Court. The New York Court of Appeals decided to hear the challenge by property owners and tenants to the taking of their property. The parties are submitting briefs and the case – Goldstein et al. v. N.Y. State Urban Development Corporation – will be argued in Albany on October 14.

The properties are needed to construct the “Atlantic Yards Project” consisting of the Barclays Center Arena and 16 skyscrapers. The condemnees challenging the taking claim the use of eminent domain for Atlantic Yards violates the New York State Constitution.
 

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.