THE DAKOTA ACCESS PIPELINE PROJECT

The Supreme Court of Iowa ruled on May 31, 2019 that the Dakota Access Pipeline is a valid use of eminent domain in the State of Iowa. The Dakota Access Pipeline is set to be one of the largest pipelines in North America, running from North Dakota through South Dakota and Iowa to reach a refinery in Illinois.  The pipeline has been subject to a significant amount of controversy for its size and environmental impact as well as its location running through Indian Reservations. The current case was brought by… read more

Posted in Dakota Access Pipeline, Pipeline Takings, Takings Clause, Uncategorized
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PAYMENT OF AN ADVANCE PAYMENT: THE NEW YORK RULE

          On May 28, 2019, the United States Supreme Court declined to grant certiorari to review a case which arose out of southeast Pennsylvania.  The 72-acre parcel was owned by Gary and Michelle Erb who intended to build their residence and also have their sons build homes on the land as well.  But the Erbs’ dream was destroyed when the Transcontinental Gas Pipe Line Company (Transco) applied to the Federal Energy Regulatory Commission (FERC) for authorization to build its Atlantic Sunrise Project – a natural gas pipeline running through Pennsylvania,… read more

Posted in Advance Payments, Pipeline Takings, Uncategorized
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THE STANDARD OF REVIEW OF A VALUATION CASE ON APPEAL AND JUDICIAL BIAS

          On appeal of a condemnation or tax certiorari case what exactly is the Appellate Court standard of review?  The answer is not that simple.  Most decisions reviewing a valuation cause will state that since the matter before it was a bench trial, the Appellate Division may render the Judgment it finds warranted by the facts, taking into account the fact that the trial court had the advantage of seeing the witnesses.  Northern Westchester Professional Park Associates v Bedford, 60 NY2d 492 (1983).  Stated another way, where the trial court’s… read more

Posted in Burden of Proof, Standard of Review, Uncategorized
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EDPL SECTION 701: LEGAL FEES, APPRAISAL FEES AND DISBURSEMENT REIMBURSEMENTS

          The Second Department handed down Matter of City of Long Beach v Sun NFL Limited Partnership on May 15, 2019 ___ AD3d ___, 2016-13371.  The decision concerned an application for reimbursement of legal, appraisal fees and disbursements pursuant to EDPL Section 701.           The condemnor made a pre-vesting offer to the property owner of $2,080,000.  After trial the Supreme Court awarded $11.8 million.  Claimant sought an additional allowance totaling $2,024,412.           The trial court reduced the amount sought for attorneys’ fees and awarded $831,303.   The condemnor appealed and claimant… read more

Posted in Attorneys' Fees Reimbursement, EDPL Sec. 701, Uncategorized
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LITIGATING THE PUBLIC TRUST DOCTRINE IN NEW YORK. A PARK IS A PARK UNLESS IT’S NOT.

          New York’s highest court, the Court of Appeals, decided Matter of Glick v Harvey.[1]  The appeals court affirmed the reversal of a lower court order which enjoined New York University from beginning any construction in connection with its expansion project that would result in any alienation of three parcels of land found by the Court to be public parkland, unless and until the State Legislature authorizes the alienation of any parkland to be impacted by the project.  The decision itself provides very little factual information.  According to an article… read more

Posted in Condemnation, parklands, Public Trust Doctrine, Uncategorized
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PUBLIC USE MEANS JUST ABOUT ANY USE

          Arguing that the project will benefit a private party and that the proposed condemnation will there by violate the constitutional restraints against the condemning private party to give another private party will fail as long as it could be said the public purpose is dominant.  See Waldo’s, Inc. v Vill. Of Johnson City, 74 NY2d 718, 720 (1989); see also Yonkers Cmty. Dev. Agency v Morris, 27 NY2d 478, 482 (1975).           Virtually any purpose will be acceptable including the condemnation of a historic waterfront for a shopping mall… read more

Posted in Public Benefit, Public Purpose, Public Use, Uncategorized
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JUST COMPENSATION FOR GOODWILL

          The Fifth Amendment to the United States Constitution requires the court to award just and fair compensation.  But goodwill is rarely compensated.  Rather the courts will utilize a market approach unless property is truly unique, or to be exactly operated as before by the condemnor.  Matter of Nassau County (Lido Boulevard), 43 AD2d 45 (2d Dept 1973), afd. 39 NY2d 958 (1976).           State and federal courts have long ignored the mandate to pay just compensation for the goodwill of a business.  In New York, trade fixtures used for… read more

Posted in Going Concern, Goodwill, Uncategorized
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TRUMP’S WALL – A MIRAGE IN THE DESERT

          Donald Trump has made building a wall along the southwest border a cornerstone of his administration.  Trump has misappropriated government funds including $3.6 billion in money which was allocated for military construction to build the wall, but there is one necessary element missing, “the land.”  Congress – even while under Republican control, has repeatedly refused to appropriate the money demanded by the President to fund the project.           There are 1,350 miles of the southern border which is unfenced.  He originally wanted to fence 1,000 miles, but has reduced… read more

Posted in Border Wall, Ineffective Eminent Domain, Property Rights, Uncategorized
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DOES ACQUIRING PROPERTY TO RETURN IT TO PRODUCTIVE USE SERVE A VALID PUBLIC PURPOSE? OR, IS LAND BANKING SPECULATIVE AND IMPROPER?

          The Second Department handed down two decisions in two consecutive weeks deciding challenges to determinations adopted to condemn property by eminent domain for the purpose of returning the property to productive use in accordance with the City of Yonkers Master Plan in two separate urban renewal plans.  Matter of One Point St. Inc. v City of Yonkers Indus. Dev. Agency, ____ AD3d ____, 2019 NY Slip Op 01769 (March 13, 2019); Matter of City of New York v Yonkers Industrial Development Agency, ____ AD3d ____, 2019 NY Slip Op… read more

Posted in Challenges to Condemnation, EDPL Sec. 207, Land Banking, Speculative Taking, Uncategorized
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SOMETHING IS ROTTEN IN THE COUNTY OF ROCKLAND: The corrupt process of exercising the awesome power of eminent domain.

          Recently, the Second Department affirmed an additional allowance pursuant to EDPL Sec. 701 to the extent of awarding $233,391.46.  Matter of Village of Spring Valley (Little Angel Day Care Center, Inc.).  Joshua H. Rikon tried the trade fixture claim and argued the appeal.           The Village, as it has in past cases, offered a low-ball appraisal and paid an advance payment of $90,960.           The trial court awarded $469,114 as just compensation.  The award was previously affirmed and claimant thereafter moved for the additional allowance.  Little Angel was fully… read more

Posted in Bad Faith, Just Compensation, Mendacious Argument, Uncategorized
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