Archive | 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

Posted in Competency of Witness, Owner's Testimony, Valuation
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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

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

Posted in Financial Feasibility, Highest and Best Use
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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

Posted in Just Compensation, Permanent Easement
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A TRIPLE AAA DECISION – MATTER OF VILLAGE OF HAVERSTRAW v AAA ELECTRICIANS, INC.

On October 17, 2018, the Appellate Division, Second Department handed down a decision affirming the award of $1,190,582.91 for an additional allowance for legal and expert fees.  The additional allowance was awarded by the Honorable Bruce E. Tolbert. The additional allowance was authorized by Section 701 of the Eminent Domain Procedure Law. In August 1987, the Eminent Domain Procedure Law (EDPL), §701, was amended to provide that when an award in a condemnation proceeding was “substantially” in excess of the condemnor’s proof on the trial, the trial court, in its… read more

Posted in EDPL Sec. 701, Legal Fees
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