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
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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
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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
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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
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SCULPTURE TRAIL V SEWER LINE. WHO DO YOU THINK WON?

          The Appellate Division, Fourth Department, handed down on June 7, 2019, one of those rare decisions, granting a petitioner’s proceeding to annul a determination authorizing a condemnation.  In the Matter of the Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, ___ AD3d ___, the petitioner commenced this original proceeding pursuant to EDPL 207 seeking to annul a determination of respondent to acquire an easement along a nature trail commemorating the women’s rights movement in order to install a sewer line.  The Court agreed with petitioner that… read more

Posted in Challenges to Condemnation, Compliance with Article 8 of ECL, EDPL 207, Uncategorized
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BYE BYE WILLIAMSON COUNTY – HELLO KNICK V TOWNSHIP OF SCOTT

          On June 21, 2019, the Supreme Court of the United States handed down Knick v Township of Scott, 588 US ____ (2019).  I wrote about Knick in this blog twice, September 21, 2018 and November 5, 2018.           Knick was originally argued before the Supreme Court on October 3, 2018.  There were only 8 Justices then sitting and there was a lack of consensus.  The Court then issued an Order directing the filing of supplemental briefs and restoring the case for argument.  Re-argument took place on January 16, 2019… read more

Posted in Fifth Amendment, Knick v Township of Scott, Ripeness of Claims, Uncategorized, Williamson County v Hamilton Bank
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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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