IT’S TIME TO PUT AN END TO THE BIAS IN FAVOR OF CONDEMNORS

We recently read a decision from the Court of Claims where the following statement is found “… all considered with the understanding that the burden of proof is establishing an entitlement to substantial compensation rests with claimant (see Andrews v State of New York, 137 AD2d 952, 953 (3d Dept).” Cardinal Development Properties, Ltd. v The State of New York, Claim No. 120333, Decision Filed December 18, 2018, J. Hudson.

Why would a Court of Claims Judge believe that this is true in a de jure appropriation? In other words, this is what the State believes the damages are, prove that it is wrong. To me this indicates a fundamental failure of the Court to appreciate exactly what an eminent domain claim represents. A condemnation or appropriation is not like private litigation. A condemnation is the enforcement of a constitutional mandate that just compensation be paid.

In New York, the burden of proof is on the court to assure that the award of the constitutional requirement of just compensation is attained. As United States Supreme Court Justice Felix Frankfurter wrote, “[s]ince land and buildings are assumed to have some transferable value, when a claimant for just compensation for their taking proves that he was their owner, that proof is ipso facto proof hat he is entitled to some compensation.” Kimball Laundry Co. v United States, 338 US 1, 20 (1949). Thus, to hold a claimant responsible for the burden of proof for the value of their property is contrary to well-established law that the court has the burden of proof.

Any award of just compensation must be premised on valid appraisals of the property. New York’s Appellate Division, Second Department, summarized the process as follows: “[If] the appraisals of both parties were defective, there should be a new trial to determine the proper theory of valuation. A condemnation proceeding is not a private litigation. There is a constitutional mandate upon the court to give just and fair compensation for any property taken.”

This means “just” to the claimant and “just” to the people who are required to pay for it. The rule is abundantly clear that property must be appraised at its highest and best use and paid for accordingly. Where we find it is not…we must remit for retrial upon the proper theory…Accordingly, we remit this case for the taking of testimony and a new determination of an appropriate theory of valuation upon which the court may derive a value of the parcel… Yaphank Dev. Company v County of Suffolk, 609 NYS2d 346, 248 (NY App Div 1994).

Not only that, but the Andrews case cited by Judge Hudson dealt with a specific issue, to wit, an argued highest and best use which differed from the actual use. A claimant would have the burden of proof on this issue. But not on establishing an entitlement to substantial compensation. Finally, Andrews relies on Heyert v Orange & Rockland Utilities, Inc., 17 NY2d 352 (1966). Heyert was not a de jure taking, it was an inverse condemnation claim dealing with an easement in a street. But even here, the Heyert court stated that “the owner is not to be foreclosed of opportunity to prove his damages are substantial.

Posted in Burden of Proof, Condemnation, Inverse Condemnation
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