THAT PERMANENT EASEMENT IS REALLY A FEE TAKING IN DISGUISE

Often the State of New York will appropriate property for a highway project by utilizing three different types of takings, full fee takings, temporary easements and permanent easements.  Some appropriation maps will indicate all three types of takings.  The fee taking is valued on all damages which result, direct and any severance or consequential damages to the remainder. The temporary easement is valued at a rental value plus imputed expenses such as real estate taxes.  In addition, if the continued existence of the temporary easement causes damage to the remainder,… read more

Posted in Easements, Partial Takings
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“We’re Going to Build a Wall and Mexico is Going to Pay for It” – Not So, You are Going to Pay for It.

The immediate construction of a physical wall between Mexico and America was authorized by Presidential Executive Order on January 25, 2017, but there is no provision for funding from Mexico.  The President is asking congress for $4.1 billion through next year to begin construction of a wall, a project that may cost as much as $25 billion, plus annual repairs. A sea to sea barrier would require control of land along 2,000 miles.  This means that much land would have to be acquired by eminent domain.  As part of the… read more

Posted in Eminent Domain, Gateway Project, Uncategorized, Walls
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THE TEMPORARY EASEMENT – SOMETIMES NOT TEMPORARY DAMAGES

Temporary easements are commonly taken by the State for highway work and by the Metropolitan Transportation Authority for railroad improvement. Often the temporary easement is taken in conjunction with permanent easements.  Sometimes they are labeled otherwise.  But if there is a court order granting the right to enter private property and occupy the property for a period of time, it is a taking under New York Law.  While a condemnor has the right of entry prior to acquisition, this is for the purpose of investigation.  New York’s Eminent Domain Procedure… read more

Posted in Damages, Right of Entry, Temporary Easement
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THE TEXAS BULLET TRAIN

A private developer is attempting to develop a 240 mile bullet train line between Houston and Dallas.  The developer, Texas Central Partners, has entered into a joint venture with Japanese train operator JR Central to bring its bullet train technology to Texas.  While there appears to be support from officials in Houston and Dallas, there is strong opposition from communities and landowners in proximity to the train’s route. In preliminary litigation, the train company sought court orders allowing the company to enter private property to survey land. Under New York… read more

Posted in Bullet Train, Entry on Land
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MUIR V. WISCONSIN “PARCEL AS A WHOLE” DOCTRINE SCHEDULED FOR ORAL ARGUMENT

The United States Supreme Court has scheduled oral argument of the Muir case for March 20, 2017.  The case involved a regulatory taking claim which was premised on the adoption of a zoning ordinance which required a minimum “net project area.”  This resulted in the inability to develop or sell the contiguous parcel.  There were two parcels which although owned by the same owner and contiguous were purchased separately at different times for different purposes.  By itself the other lot would be grandfathered under the zoning law, but not when… read more

Posted in Inverse Condemnation, Regulatory Taking
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CAN GOVERNMENT DESIGNATE PROPERTY TO BE ACQUIRED AND RESTRICT FUNDAMENTAL RIGHTS?

The North Carolina Supreme Court held that the filing of a map which designates property for future highway acquisition and prohibits development in the interim is a taking.  Kirby v North Carolina Dept. of Trans., 368 N.C. 847 (2016). The Court held, “upon NCDOT’s recording of the highway corridor maps at issue here, the Map Act restricted plaintiffs’ fundamental rights to improve, develop, and subdivide their property for an unlimited period of time.  These restraints, coupled with their indefinite nature, constitute a taking of plaintiffs’ elemental property rights by eminent… read more

Posted in Highest and Best Use, Inverse Condemnation, Zoning
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TRUMP REVIVES KEYSTONE AND DAKOTA PIPELINES

President Trump signed an Executive Order on January 24, 2017 reviving the Keystone XL and Dakota Access Pipeline projects.  Former President Barack Obama rejected the Keystone 1,179 mile pipeline in 2015. When he signed the Order, Mr. Trump recited that the pipeline would bring 28,000 construction jobs.  But according to the New York Times, “studies showed that the pipeline would not have a momentous impact on jobs.”  New York Times, January 24, 2017.  The President also indicated that he would renegotiate the terms with the pipelines. The President also seemed… read more

Posted in Pipeline Takings
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CAN A PUBLIC BENEFIT CORPORATION INSIST ON CONFIDENTIALITY AS PART OF A SETTLEMENT AGREEMENT?

Counsel for public benefit corporations often insist on the inclusion of a confidentiality provision in their settlement agreements.  Often claimants refuse to agree.  But many claimants are anxious to finally wind up their litigation and recover their award.  The issue is can a public benefit hide the payment of just compensation?  Isn’t the settlement something of great concern to the public, the press, legislative overseers and the bar in general?  An often overlooked consequence is that a claimant agreeing confidentiality may find unanticipated tax consequences.  See, for example, Amos v… read more

Posted in Confidentiality, Settlement Agreements
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PIPELINE TAKINGS – TIME TO RECONSIDER THEIR POWER OF EMINENT DOMAIN

If you monitor eminent domain issues on a national level, you must be aware that by far the greatest controversy has focused on pipeline takings. The United States has the largest network of energy pipelines in the world, generally accepted to be 2.5 million miles, more recently, because of fracking, massive new pipeline building has been taking place.  Most of those lines are for oil.  Some states make a distinction between oil and gas pipelines.  Gas pipelines would not have the federal statutory priority and would be subject to state… read more

Posted in Partial Takings, Pipeline Takings
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IF REAL PROPERTY WAS CONDEMNED FOR A PUBLIC PURPOSE, MAY IT BE CONDEMNED AGAIN FOR ANOTHER USE?

Generally, a property presently used for a public purpose may not be condemned.  See New York, L. & W.R. Co. v Union Steam-Boat Co., 99 NY 12 (1885).  Nor may property owned by a higher sovereign be acquired without consent.  This is known as the prior public use doctrine.  As the New York State Court of Appeals has noted, “[t]o defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear.”  In re City of Buffalo, 68 NY 167, 175… read more

Posted in Condemnation Procedures, Eminent Domain
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