Food Truck Regulations Bring Property-Rights Claim

Jacksonville, North Carolina adopted several food truck regulations that brought many legal challenges.  One of those regulations was to ban food trucks on any property that sits within 250 feet of property with a brick-and-mortar restaurant or residential housing.  There is another regulation which bans food trucks from operating within 250 feet of each other. Within Jacksonville’s city limits open to food trucks, potential operators face other barriers. Another challenged regulation involves advertising.  Food trucks are limited to one sign no taller or wider than five feet.  The sign can… read more

Posted in Food Truck, Inverse Condemnation, Property Rights, Regulatory Taking
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Time to Correct Racial Bias in Residential Valuation. Here is The Way to Start.

My December 27, 2022 article for the New York Law Journal discusses the widespread racial bias found in residential appraisals.  Racial bias in home valuation operates as an institutionalized theft of value from the Black community.  Most Americans measure their wealth by calculating their net worth.  The largest component of personal wealth is the ownership of one’s home.  If a racial component is not given a fair valuation of their property, they lose the opportunity to increase their personal wealth, or at least have a fair accounting of same. The… read more

Posted in Appraisers, Racial Bias, Valuation
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What Does Government Do If It Doesn’t Like the Legal Use of a Property? Why It Condemns the Property!

I know, I know, there is supposed to be a public use for the parcel to be acquired.  But, don’t worry, we can find a public purpose later. NY Waterway is an essential ferry operation running ferry and bus service in the Port of New York and New Jersey and in the Hudson Valley.  It has 32 vessels with an average ridership of 18,000 a day.  The ferry company purchased the Union Dry Dock to create a ferry home port for maintenance and fueling.  The City of Hoboken wants the… read more

Posted in Condemnation of NY Waterways, Hoboken, Public Use
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Elon Musk Must Be Nice on Twitter, Or Maybe?

Elon Musk, who recently completed a $44 billion takeover of Twitter, has said, according to the Wall Street Journal, that he would welcome back people who were removed from the platform.  Among those he would welcome back is former President Donald Trump. Trump was booted after his comments to the January 6th riot. Twitter, Musk has said, must be “warm and welcoming to all.” Musk seems to violate his own pledge that the site would not become a “hellscape” under his ownership.  Three days after taking ownership, Musk tweeted that… read more

Posted in Condemnation of Going Concern, Public Forum, Twitter
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Supreme Court Weighs Wetlands Protection.

On October 3, 2022, the Supreme Court heard argument in Sackett v U.S. Environmental Protection Agency, ___ U.S. ___ (No. 21-454).  The Sacketts bought their land in 2004 in a subdivision near Priest Lake, Idaho.  They obtained the necessary permits to build a modest three-bedroom family home.  In 2007 they began construction only to have EPA officials demand they stop, alleging that their land was protected wetlands under federal jurisdiction.  The EPA’s compliance order claimed the construction violated the Clean Water Act (CWA) because their property was a federally regulated… read more

Posted in Clean Water Act, Navigable Waters, Wetlands
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Oh, Oh, The City Is Being Sued by Amtrak!

A few years ago, I wrote a blog “Can One Government Condemn Another Government’s Property?” (November 12, 2018) We wrote then: 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… read more

Posted in Amtrak, Condemnation of Government Property, Doctrine of Federal Preemption, Supremacy Clause
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Will The Texas Bullet Train Ever Be Built?

We have written about the Texas Bullet Train several times in this blog, February 28, 2017, May 21, 2020 and October 8, 2020. The project, after a decade since it was announced, is still in limbo.  This is despite a June 2022 ruling by the Texas Supreme Court allowing the company to use eminent domain to acquire its right of way. The company is in complete disarray.  The CEO resigned and the Texas Central Board disbanded.  Land acquisition has stopped for the last two years. The high-speed train that promises… read more

Posted in Eminent Domain, Partial Takings, Severance Damages, Texas Bullet Train
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The Condemnation of a Going Concern

Section 708 of the Eminent Domain Procedure Law (“EDPL”) provides that the acquisition of other than real property, the acquisition shall be in the manner and procedure prescribed for the acquisition of real property by the EDPL. The provision is hardly noticed.  There are no cases annotated in McKinney’s Volume 16A.  But there are cases out there for review if you know about them. Matter of Port Auth. Trans-Hudson Corp. (Hudson Rapid Tubes Corp.), 20 NY2d 457 (1967).  In this case, the Port Authority of New York and New Jersey… read more

Posted in Condemnation of Going Concern, EDPL Section 708, Valuation of Going Concern
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When an Easement Is 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

Posted in Condemnation, Direct Taking, Easements, Eminent Domain
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The Expert Witness in a Condemnation Trial

The fundamental rule is that the qualifications of a witness as an expert is a determination within the sound discretion of the trial court.  Smith v City of New York, 238 AD2d 500 (2d Dept 1997). An expert, once qualified, is allowed to testify as to the expert’s opinion.  Sec. 7-301, Prince on Evidence (11th Ed. P. 456).  In a condemnation case, the evidence before the court will be expert testimony by appraisers, zoning experts and other valuation experts. As one court has stated, “impartiality should be the touchstone of… read more

Posted in Appraisers, Condemnation, Eminent Domain, Expert Witness, Independent Expert, Opinion Evidence, Qualifications
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