OH MY, THE KEYSTONE PIPELINE IS LEAKING

          You remember the Keystone Pipeline.  President Trump signed an Executive Order on January 24, 2017 reviving the Keystone XL and Dakota Access Pipeline projects.  Former President Barak 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… read more

Posted in Keystone Pipeline, Leaking Pipelines, Uncategorized
Read more > 0

SUPREME COURT DENIES REVIEW OF “QUICK TAKE” PIPELINE TAKING

          On October 1, 2019, the United States Supreme Court denied certiorari to review a landowners’ appeal from the 4th Circuit Court of Appeals in Givens v Mountain Valley Pipeline.  The issue is the “quick take” process that grants the pipeline immediate access to property when a Federal Pipeline Certificate is issued.  The 303-mile pipeline would transmit Appalachian shale gas to Mid-Atlantic markets.  The landowners are then relegated to a trial for just compensation.            The Supreme Court decision in June in Knick v Township of Scott (see Bye Bye… read more

Posted in Pipelines, Quick Take, Uncategorized
Read more > 0

ARE PIPELINES RUNNING OUT OF GAS?

          In an interesting article written by Phil McKenna in Inside Climate News, Mr. McKenna reports that recent federal court rulings could give states more authority to oppose natural gas pipeline projects.  As Trump tries to clear the way for more fossil fuel pipeline construction, a diverse coalition of environmental advocates and landowners are gaining traction in their efforts to fight new pipeline projects by focusing on property rights.           The article argues that a pipeline’s use for eminent domain is inappropriate.  As we know, eminent domain is an inherent… read more

Posted in Natural Gas Act, Pipelines, Uncategorized
Read more > 0

YOUR EXPERT IS COMMITTING PERJURY, WHAT SHOULD YOU DO?

I was recently cross-examining an expert witness who had never testified before. I asked him whether he had made any prior reports to the one in evidence. He hesitated for a long time. His body language indicated evasiveness. Finally, he said, “I don’t think so.” I tried to pin him down and asked him again if he ever submitted any other report, draft report, or written or oral opinion to counsel. Again, he said “no.” But he lied under oath. The lie was made evident when cross examining another witness… read more

Posted in Attorneys' Ethics, Perjury, Uncategorized
Read more > 0

PROVING FAIR MARKET VALUE BY THE MARKET DATA APPROACH. ARE YOUR COMPARABLES REALLY COMPARABLE?

An appraisal presents a pure factual presentation of data and information utilized by an expert to conclude to an opinion of value.  In New York State, an appraisal is required to be exchanged and filed pursuant to Court Rule.  22 NYCRR Sec. 202.61.  See Miriam Osburn Memorial Home Assoc. v Assessor of Rye, 2004 N.Y. Slip. Op. 50793 (U) (West. Sup. Ct. 2004). The Appraisal Rule allows the parties to prepare for trial with knowledge of each other’s valuations and the foundations and justifications thereof.  Parisi v State, 62 Misc2d 378, 382… read more

Posted in Appraisal Rule, Comparable Sales, Market Data Approach, Uncategorized
Read more > 0

MY ADVICE TO APPRAISERS

          After fifty years of trying condemnation cases, I am consistently surprised at the occasional instance where an appraiser just does not know how to properly testify in court.           On paper, an appraiser may be incredibly impressive.  But is that enough for one to prevail in a case focused on valuation?           Providing expert testimony certainly requires expert knowledge of the subject, but it also requires knowledge of the fundamental rules that should be observed when on the witness stand.  The rules will vary from jurisdiction to jurisdiction.  An… read more

Posted in Appraisers, Expert Testimony, Uncategorized
Read more > 0

MEMO TO APPRAISERS: KEEP IT SIMPLE

          An interesting decision from the Fourth Department presents the issue of can an appraisal be limited to the study of specific economic measurements.  Most appraisals of property taken in condemnation consider the three basic methods of valuation, Viz.: comparable sales or market data approach; capitalization of income; or, the cost or specialty approach.           In Matter of Rochester Genesee Regional Trans. Auth. v Stensrud, ___ AD3d ____ (June 7, 2019), the condemnor’s motion to strike that part of claimant’s appraisal report with respect to “investment value” and to preclude… read more

Posted in Appraisal, Methods of Valuation, Uncategorized
Read more > 0

THERE CAN BE NO LIMIT ON JUST COMPENSATION

          We recently took over some files that pertained to takings by the County of Suffolk.  The prior attorney inserted a dollar amount in the filed claim.  Later, upon the preparation of the pre-trial order, the condemnor’s counsel objected to the insertion of a higher amount which matched appraised damages.  Former counsel stated that he inserted an amount into the claim merely as a placeholder until an appraisal was completed.           Eminent Domain Procedure Law (“EDPL”) § 504 specifies the information that should be included in a claim.  It does… read more

Posted in Condemnation Claims, Just Compensation, There can be no limit to Just Compensation, Uncategorized
Read more > 0

SHAME ON YOU SUFFOLK COUNTY: THE ATTEMPT TO STEAL JUST COMPENSATION

          I recently tried a claim which involved the taking of an easement on a beach front property.  The taking was to build a protective dune on Fire Island.           The dune was part of a federally funded program developed after Hurricane Sandy.  The County claimed that the dune was a special benefit to the property.  Let’s define the terms:           Nichols on Eminent Domain, Third Ed., Sec. 8A.04(2) provides, “General benefits are those benefits which result from the fulfilment of the public project which necessitated the taking and are… read more

Posted in Easements, Partial Takings, Special Benefit, Uncategorized
Read more > 0

THANK YOU VERY MUCH FOR MY JUST COMPENSATION

          Just when you thought you heard it all, up comes a new, ridiculous statement by a condemnor.           I was in court yesterday before a judge who was trying his best to settle a claim for the partial taking of an apartment building and two stores.  I was not sanguine of a favorable result based on the spread of damages.  The property was very valuable on Third Avenue in Manhattan.  In the course of discussions, the MTA attorneys told the judge that “we already paid out more than $5… read more

Posted in Advance Payments, Just Compensation, Uncategorized
Read more > 0