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Archive | 2018

November 13, 2018

CAN ONE GOVERNMENT CONDEMN ANOTHER GOVERNMENT’S PROPERTY?

Generally, a body with the power of eminent domain cannot condemn the property of a higher sovereign.  But the key inquiry seems to be, is the current use a public use, since there is a doctrine of prior public use which holds that a condemnor may not condemn property already being used for a public purpose if the proposed use “will either destroy the existing (public) use or interfere with it to such an extent as is tantamount to destruction.”  Okanogan County PUD v State, 182 Wn2d 519, 538-539 (2015). … read more

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Posted in Condemnation of Government Property, Prior Public Use
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November 9, 2018

CAN A CLAIMANT TESTIFY AS TO THE VALUE OF PROPERTY IN NEW YORK? WHY NOT?

We became intrigued with this question after reading the Amici Curiae brief of Owner’s Counsel of America written by renowned legal scholar Robert H. Thomas in an appeal pending in the United States Court of Appeals for the 11th Circuit, Sabal Trial Transmission, LLC v 3.921 Acres of Land in Lake County, Florida.  I am the New York State representative of Owner’s Counsel of America. The brief makes two main points.  First, the Fifth Amendment requires that an owner recover the “full and perfect equivalent for the property taken.”  And… read more

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Posted in Competency of Witness, Owner's Testimony, Valuation
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November 5, 2018

MORE KNICK ON KNICK V. TOWNSHIP OF SCOTT

We wrote about this case in our September 21, 2018 blog.  The Township of Scott, Pennsylvania passed an ordinance affecting private properties determined to be or contain cemeteries. In relevant part, the ordinance required that “all cemeteries within the Township . . . be kept open and accessible to the general public during daylight hours” and that no owner could unreasonably restrict nor charge any fee to access the cemetery (the “public-access provision”).  Additionally, the ordinance permitted a Township office to enter any property within the Township to determine whether… read more

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Posted in De Jure Condemnation, Inverse Condemnation, Knick v Town of Scott
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October 29, 2018

MUST A HIGHEST AND BEST USE BE FINANCIALLY FEASIBLE?

It is the general rule that “just compensation” is the fair market value of the property at the date of the taking, Matter of Board of Water Supply of City of New York, 277 NY 452 (1938); County of Erie v Fridenberg, 221 NY 389 (1917), and the fair market value is the price for which the property would sell if there was a willing buyer who was under no compulsion to buy and a willing seller who was under no compulsion to sell.  Keator v State of New York,… read more

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Posted in Financial Feasibility, Highest and Best Use
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October 23, 2018

THE EASEMENT THAT’S REALLY A DIRECT TAKING

The right of an owner to just compensation for property taken by eminent domain is one guaranteed by the federal and state constitutions.  (Federal Constitution, Fourteenth Amendment; NY Constitution, Art. 1, Subd. 7).  The constitutional requirement of “just compensation” mandates that the property owner be indemnified so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred.  City of Buffalo v J.W. Clement Co., Inc., 28 NY2d 241 258 (1971); Rose v State of New York, 24 NY2d… read more

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Posted in Just Compensation, Permanent Easement
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